In United States v. Alvarez, Justice Kennedy suggested that one way the government could minimize the likelihood that someone can lie about having earned a medal would be to set up a database listing the actual recipients:
In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restric- tive means among available, effective alternatives.” Ash- croft, 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Con- gressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individ- uals have already created databases similar to this, see Brief for Respondent 25, and at least one data- base of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the De- partment of Defense investigated the feasibility of estab- lishing a database in 2008, the Government “concluded that such a database would be impracticable and insuf- ficiently comprehensive.” Brief for United States 55. Without more explanation, it is difficult to assess the Gov- ernment’s claim, especially when at least one database of Congressional Medal of Honor winners already exists.
On page 55 of the United States’s brief, the SG wrote that “no less restrictive alternative would adequately serve the government’s interest.”
While members of the public will discover and expose some false claims, many will remain unchallenged. See pp. 50-51, supra. Although Congress in 2008 investigated the feasibility of establishing a searchable medals database that would enable the public to verify claims, the Department of Defense concluded that such a database would be impracticable and insufficiently comprehensive. See Decorations Database 8-9; H.R. Rep. No. 652, 110th Cong., 2d Sess. 361 (2008). That reinforces Congress’s conclusion that Section 704(b)’s prohibition is necessary to prevent the cumulative effect of false claims, including those that are less susceptible to counterspeech, from eroding the meaning of military honors. Section 704(b) permits carefully chosen prosecutions—where the government can prove that the defendant’s claim was false and that he was aware of its falsity—to deter all knowingly false claims to have received military honors. No other remedy would adequately vindicate the compelling government interest at stake.
Contrary to the Solicitor General’s representation, it seems that such a database is quite practicable. Last month, the Department of Defense announced that they would build just such a database:
The Defense Department will unveil a stolen valor website Wednesday designed to help citizens see if someone is lying about military medals.
President Barack Obama announced the new site as part of his speech before the Veterans of Foreign Wars national convention in Reno. Nev., on Monday. Pentagon officials would not release additional details.
An administration official said that record keepers from each military branch have been compiling awards records since the Supreme Court last month struck down the federal Stolen Valor Act, arguing that the punishments for those lying about military medals infringed on free speech.
It seems to be online now at valor.defense.gov, and lists the recipients of the Medal of Honor and service crosses.
Whenever the Solicitor General supports an assertion by citing the government’s interest in expedience, or something to that effect, I am usually quite incredulous–especially when it comes in the context of constitutional law.
Justice Alito, joined by Justices Scalia and Thomas in dissent, were more deferential to the government’s representation:
The chief alternative that is recommended is the compilation and release of a comprehensive list or database of actual medal recipients. If the public could readily access such a resource, it is argued, imposters would be quickly and easily exposed, and the proliferation of lies about military honors would come to an end. This remedy, unfortunately, will not work. The Department of Defense has explained that the most that it can do is to create a database of recipients of certain top military honors awarded since 2001. See Office of Undersecretary of Defense, Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database 45 (2009).13 Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls “counterspeech.”
Here, it Justice Kennedy, as always was incredulous. And he was correct. And it seems in barely a month since the Court’s opinion, the Department of Defense was able to amass a lot of this information.
Without limiting speech, misinformation can be corrected through counterspeech. A novel idea!
H/T Outside The Beltway (this story is somewhat old, but I finally got around to blogging it).