NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–210

															_________________

															UNITED STATES, PETITIONER v. XAVIER
ALVAREZ

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 28, 2012]

															Justice Kennedy announced the judgment of the
Court and delivered an opinion, in which The Chief Justice, Justice
Ginsburg, and Justice Sotomayor join.

															Lying was his habit. Xavier Alvarez, the
respondent here, lied when he said that he played hockey for the
Detroit Red Wings and that he once married a starlet from Mexico.
But when he lied in announcing he held the Con-gressional Medal of
Honor, respondent ventured onto new ground; for that lie violates a
federal criminal statute, the Stolen Valor Act of 2005. 18
U. S. C. §704.

															In 2007, respondent attended his first public
meeting as a board member of the Three Valley Water District Board.
The board is a governmental entity with headquarters in Claremont,
California. He introduced himself as follows: “I’m a retired marine
of 25 years. I retired in the year 2001. Back in 1987, I was
awarded the Congressional Medal of Honor. I got wounded many times
by the same guy.” 617 F.3d 1198, 1201–1202 (CA9 2010). None of this
was true. For all the record shows, respondent’s statements were
but a pathetic attempt to gain respect that eluded him. The
statements do not seem to have been made to secure employment or
financial benefits or admission to privileges reserved for those
who had earned the Medal.

															Respondent was indicted under the Stolen Valor
Act for lying about the Congressional Medal of Honor at the
meeting. The United States District Court for the Central District
of California rejected his claim that the statute is invalid under
the First Amendment. Respondent pleaded guilty to one count,
reserving the right to appeal on his First Amendment claim. The
United States Court of Appeals for the Ninth Circuit, in a decision
by a divided panel, found the Act invalid under the First Amendment
and reversed the conviction. Id. , at 1218. With further
opinions on the issue, and over a dissent by seven judges,
rehearing en banc was denied. 638 F.3d 666 (2011). This Court
granted certiorari. 565 U. S. ___ (2011).

															After certiorari was granted, and in an
unrelated case, the United States Court of Appeals for the Tenth
Circuit, also in a decision by a divided panel, found the Act
constitutional. United States v. Strandlof , 667 F.3d
1146 (2012). So there is now a conflict in the Courts of Appeals on
the question of the Act’s validity.

															This is the second case in two Terms requiring
the Court to consider speech that can disparage, or attempt to
steal, honor that belongs to those who fought for this Nation in
battle. See Snyder v. Phelps , 562 U. S. ___
(2011) (hateful protests directed at the funeral of a serviceman
who died in Iraq). Here the statement that the speaker held the
Medal was an intended, undoubted lie.

															It is right and proper that Congress, over a
century ago, established an award so the Nation can hold in its
high- est respect and esteem those who, in the course of carrying
out the “supreme and noble duty of contributing to the defense of
the rights and honor of the nation,” Selective Draft Law
Cases, 245 U.S.
366 , 390 (1918), have acted with extraordinary honor. And it should be
uncontested that this is a legitimate Government objective, indeed
a most valued national aspiration and purpose. This does not end
the inquiry, however. Fundamental constitutional principles require
that laws enacted to honor the brave must be consistent with the
precepts of the Constitution for which they fought.

															The Government contends the criminal prohibition
is a proper means to further its purpose in creating and awarding
the Medal. When content-based speech regulation is in question,
however, exacting scrutiny is required. Statutes suppressing or
restricting speech must be judged by the sometimes inconvenient
principles of the First Amendment. By this measure, the statutory
provisions under which respondent was convicted must be held
invalid, and his conviction must be set aside.

															I

															Respondent’s claim to hold the Congressional
Medal of Honor was false. There is no room to argue about
in-terpretation or shades of meaning. On this premise, respondent
violated §704(b); and, because the lie concerned the Congressional
Medal of Honor, he was subject to an enhanced penalty under
subsection (c). Those statutory provisions are as follows:

															“(b) False Claims About Receipt of Military
Decorations or Medals.––Whoever falsely represents himself or
herself, verbally or in writing, to have been awarded any
decoration or medal authorized by Congress for the Armed Forces of
the United States . . . shall be fined under this title,
imprisoned not more than six months, or both.

															“(c) Enhanced Penalty for Offenses Involving
Congressional Medal of Honor.––

															“(1) In General.––If a decoration or medal
involved in an offense under subsection (a) or (b) is a
Congressional Medal of Honor, in lieu of the punishment provided in
that subsection, the offender shall be fined under this title,
imprisoned not more than 1 year, or both.”

															Respondent challenges the statute as a
content-based suppression of pure speech, speech not falling within
any of the few categories of expression where content-based
regulation is permissible. The Government defends the statute as
necessary to preserve the integrity and purpose of the Medal, an
integrity and purpose it contends are compromised and frustrated by
the false statements the statute prohibits. It argues that false
statements “have no First Amendment value in themselves,” and thus
“are protected only to the extent needed to avoid chilling fully
protected speech.” Brief for United States 18, 20. Al-though the
statute covers respondent’s speech, the Government argues that it
leaves breathing room for pro-tected speech, for example speech
which might criticize the idea of the Medal or the importance of
the military. The Government’s arguments cannot suffice to save the
statute.

															II

															“[A]s a general matter, the First Amendment
means that government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union , 535 U.S.
564 , 573 (2002) (internal quotation marks omitted). As a
result, the Constitution “demands that content-based restrictions
on speech be presumed invalid . . . and that the
Government bear the burden of showing their constitutionality.” Ashcroft v. American Civil Liberties Union , 542 U.S.
656 , 660 (2004).

															In light of the substantial and expansive
threats to free expression posed by content-based restrictions,
this Court has rejected as “startling and dangerous” a
“free-floating test for First Amendment coverage . . .
[based on] an ad hoc balancing of relative social costs and
benefits.” United States v. Stevens , 559 U. S.
___, ___ (2010) (slip op., at 7). Instead, content-based
restrictions on speech have been permitted, as a general matter,
only when confined to the few “ ‘historic and traditional
categories [of expression] long familiar to the bar,’ ” Id., at ___ (slip op., at 5) (quoting Simon &
Schuster, Inc. v. Members of N. Y. State Crime Victims
Bd. , 502 U.S.
105 , 127 (1991) (Kennedy, J., concurring in judgment)). Among
these categories are advocacy intended, and likely, to incite
imminent lawless action, see Brandenburg v. Ohio , 395 U.S.
444 (1969) (per curiam); obscenity, see, e.g., Miller v. California , 413 U.S.
15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan , 376 U.S.
254 (1964) (providing substantial protection for speech about
public figures); Gertz v. Robert Welch, Inc. , 418 U.S.
323 (1974) (imposing some limits on liability for defaming a
private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co. , 336 U.S.
490 (1949); so-called “fighting words,” see Chaplinsky v. New Hampshire , 315 U.S.
568 (1942); child pornography, see New York v. Ferber , 458 U.S.
747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S.
748 , 771 (1976); true threats, see Watts v. United
States , 394 U.S.
705 (1969) (per curiam); and speech presenting some
grave and imminent threat the government has the power to prevent,
see Near v. Minnesota ex rel. Olson , 283 U.S.
697 , 716 (1931), although a restriction under the last category
is most difficult to sustain, see New York Times Co. v. United States , 403 U.S.
713 (1971) (per curiam) . These categories have a
historical foundation in the Court’s free speech tradition. The
vast realm of free speech and thought always protected in our
tradition can still thrive, and even be furthered, by adherence to
those categories and rules.

															Absent from those few categories where the law
allows content-based regulation of speech is any general exception
to the First Amendment for false statements. This comports with the
common understanding that some false statements are inevitable if
there is to be an open and vigorous expression of views in public
and private con-versation, expression the First Amendment seeks to
guarantee. See Sullivan, supra, at 271 (“Th[e] erroneous
statement is inevitable in free debate”).

															The Government disagrees with this proposition.
It cites language from some of this Court’s precedents to support
its contention that false statements have no value and hence no
First Amendment protection. See also Brief for Eugene Volokh et al.
as Amici Curiae 2–11. These isolated statements in some
earlier decisions do not support the Government’s submission that
false statements, as a general rule, are beyond constitutional
protection. That conclusion would take the quoted language far from
its proper context. For instance, the Court has stated “[f]alse
statements of fact are particularly valueless [because] they
interfere with the truth-seeking function of the marketplace of
ideas,” Hustler Magazine, Inc. v. Falwell , 485 U.S.
46 , 52 (1988), and that false statements “are not protected by
the First Amendment in the same manner as truthful statements,” Brown v. Hartlage , 456 U.S.
45 , 60–61 (1982). See also, e.g., Virginia Bd. of
Pharmacy , supra , at 771 (“Untruthful speech, commercial
or otherwise, has never been protected for its own sake”); Herbert v. Lando , 441 U.S.
153 , 171 (1979) (“Spreading false information in and of itself
carries no First Amendment credentials”); Gertz , supra , at 340 (“[T]here is no constitutional value in false
statements of fact”); Garrison v. Louisiana , 379 U.S.
64 , 75 (1964) (“[T]he knowingly false statement and the false
statement made with reckless disregard of the truth, do not enjoy
constitutional protection”).

															These quotations all derive from cases
discussing def-amation, fraud, or some other legally cognizable
harm associated with a false statement, such as an invasion of
privacy or the costs of vexatious litigation. See Brief for United
States 18–19. In those decisions the falsity of the speech at issue
was not irrelevant to our analysis, but neither was it
determinative. The Court has never endorsed the categorical rule
the Government advances: that false statements receive no First
Amendment protection. Our prior decisions have not confronted a
measure, like the Stolen Valor Act, that targets falsity and
nothing more.

															Even when considering some instances of
defamation and fraud, moreover, the Court has been careful to
instruct that falsity alone may not suffice to bring the speech
outside the First Amendment. The statement must be a knowing or
reckless falsehood. See Sullivan , supra , at 280
(prohibiting recovery of damages for a defamatory falsehood made
about a public official unless the statement was made “with
knowledge that it was false or with reckless disregard of whether
it was false or not”); see also Garrison , supra , at
73 (“[E]ven when the utterance is false, the great principles of
the Constitution which secure freedom of expression . . .
preclude attaching adverse consequences to any except the knowing
or reckless falsehood”); Illinois ex rel. Madigan v. Telemarketing Associates, Inc. , 538
U.S. 600 , 620 (2003) (“False statement alone does not subject a
fundraiser to fraud liability”).

															The Government thus seeks to use this principle
for a new purpose. It seeks to convert a rule that limits liability
even in defamation cases where the law permits recovery for
tortious wrongs into a rule that expands liability in a different,
far greater realm of discourse and expression. That inverts the
rationale for the exception. The requirements of a knowing
falsehood or reckless disregard for the truth as the condition for
recovery in certain defamation cases exists to allow more speech,
not less. A rule designed to tolerate certain speech ought not
blossom to become a rationale for a rule restricting it.

															The Government then gives three examples of
regulations on false speech that courts generally have found
per-missible: first, the criminal prohibition of a false statement
made to a Government official, 18 U. S. C. §1001; second,
laws punishing perjury; and third, prohibi-tions on the false
representation that one is speaking as a Government official or on
behalf of the Government, see, e.g., §912; §709. These
restrictions, however, do not establish a principle that all
proscriptions of false statements are exempt from exacting First
Amendment scrutiny.

															The federal statute prohibiting false statements
to Government officials punishes “whoever, in any matter within the
jurisdiction of the executive, legislative, or judicial branch of
the Government . . . makes any mate-rially false,
fictitious, or fraudulent statement or repre-sentation.” §1001.
Section 1001’s prohibition on false statements made to Government
officials, in communications concerning official matters, does not
lead to the broader proposition that false statements are
unprotected when made to any person, at any time, in any
context.

															The same point can be made about what the Court
has confirmed is the “unquestioned constitutionality of perjury
statutes,” both the federal statute, §1623, and its state-law
equivalents. United States v. Grayson , 438 U.S.
41 , 54 (1978). See also Konigsberg v. State Bar of
Cal. , 366 U.S.
36 , 51, n. 10 (1961). It is not simply because perjured
statements are false that they lack First Amendment protection.
Perjured testimony “is at war with justice” because it can cause a
court to render a “judgment not resting on truth.” In re
Michael , 326 U.S.
224 , 227 (1945). Perjury undermines the function and province
of the law and threatens the integrity of judgments that are the
basis of the legal system. See United States v. Dunnigan , 507 U.S.
87 , 97 (1993) (“To uphold the integrity of our trial system
. . . the constitutionality of perjury statutes is
unquestioned”). Unlike speech in other contexts, testi-mony under
oath has the formality and gravity necessary to remind the witness
that his or her statements will be the basis for official
governmental action, action that often affects the rights and
liberties of others. Sworn testimony is quite distinct from lies
not spoken under oath and sim-ply intended to puff up oneself.

															Statutes that prohibit falsely representing that
one is speaking on behalf of the Government, or that prohibit
im-personating a Government officer, also protect the integrity of
Government processes, quite apart from merely restricting false
speech. Title 18 U. S. C. §912, for ex-ample, prohibits
impersonating an officer or employee of the United States. Even if
that statute may not require proving an “actual financial or
property loss” resulting from the deception, the statute is itself
confined to “maintain[ing] the general good repute and dignity of
. . . government . . . service itself.” United States v. Lepowitch , 318
U.S. 702 , 704 (1943) (internal quotation marks omitted). The
same can be said for prohibitions on the unauthorized use of the
names of federal agencies such as the Federal Bureau of
Investigation in a manner calculated to convey that the
communication is approved, see §709, or using words such as
“Federal” or “United States” in the collection of private debts in
order to convey that the communication has official authorization,
see §712. These examples, to the extent that they implicate fraud
or speech integral to criminal conduct, are inapplicable here.

															As our law and tradition show, then, there are
instances in which the falsity of speech bears upon whether it is
protected. Some false speech may be prohibited even if analogous
true speech could not be. This opinion does not imply that any of
these targeted prohibitions are somehow vulnerable. But it also
rejects the notion that false speech should be in a general
category that is presumptively unprotected.

															Although the First Amendment stands against any
“freewheeling authority to declare new categories of speech outside
the scope of the First Amendment,” Stevens , 559 U. S.,
at ___ (slip op., at 9), the Court has acknowledged that perhaps
there exist “some categories of speech that have been historically
unprotected . . . but have not yet been specifically
identified or discussed . . . in our case law.” Ibid . Before exempting a category of speech from the normal
prohibition on content-based re-strictions, however, the Court must
be presented with “per-suasive evidence that a novel restriction on
content is part of a long (if heretofore unrecognized) tradition of
proscription,” Brown v. Entertainment Merchants
Assn., 564 U. S. ___, ___ (2011) (slip op., at 4). The
Government has not demonstrated that false statements generally
should constitute a new category of unprotected speech on this
basis.

															III

															The probable, and adverse, effect of the Act
on free- dom of expression illustrates, in a fundamental way, the
reasons for the Law’s distrust of content-based speech
prohibitions.

															The Act by its plain terms applies to a false
statement made at any time, in any place, to any person. It can be
assumed that it would not apply to, say, a theatrical performance.
See Milkovich v. Lorain Journal Co. , 497 U.S.
1 , 20 (1990) (recognizing that some statements nominally
purporting to contain false facts in reality “cannot reasonably be
interpreted as stating actual facts about an individual” (internal
quotation marks and brackets omitted)). Still, the sweeping, quite
unprecedented reach of the statute puts it in conflict with the
First Amendment. Here the lie was made in a public meeting, but the
statute would apply with equal force to personal, whispered
conversations within a home. The statute seeks to control and
suppress all false statements on this one subject in almost
limitless times and settings. And it does so en-tirely without
regard to whether the lie was made for the purpose of material
gain. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. , 483 U.S.
522 , 539–540 (1987) (prohibiting a nonprofit corporation from
exploiting the “commercial magnetism” of the word “Olym-pic” when
organizing an athletic competition (internal quotation marks
omitted)).

															Permitting the government to decree this speech
to be a criminal offense, whether shouted from the rooftops or made
in a barely audible whisper, would endorse government authority to
compile a list of subjects about which false statements are
punishable. That governmental power has no clear limiting
principle. Our constitutional tradition stands against the idea
that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen
Eighty-Four (1949) (Centennial ed. 2003). Were this law to be
sustained, there could be an endless list of subjects the National
Government or the States could single out. Where false claims are
made to effect a fraud or secure moneys or other valuable
considerations, say offers of employment, it is well established
that the Government may restrict speech without affronting the
First Amendment. See, e.g., Virginia Bd. of Pharmacy , 425
U. S., at 771 (noting that fraudulent speech generally falls
outside the protections of the First Amendment). But the Stolen
Valor Act is not so limited in its reach. Were the Court to hold
that the interest in truthful discourse alone is sufficient to
sustain a ban on speech, absent any evidence that the speech was
used to gain a material advantage, it would give government a broad
censorial power unprecedented in this Court’s cases or in our
constitutional tradition. The mere potential for the exercise of
that power casts a chill, a chill the First Amendment cannot permit
if free speech, thought, and discourse are to remain a foundation
of our freedom.

															IV

															The previous discussion suffices to show that
the Act conflicts with free speech principles. But even when
examined within its own narrow sphere of operation, the Act cannot
survive. In assessing content-based restrictions on protected
speech, the Court has not adopted a free-wheeling approach, see Stevens , 559 U. S., at ___ (slip op., at 7) (“The First
Amendment’s guarantee of free speech does not extend only to
categories of speech that survive an ad hoc balancing of
relative social costs and benefits”), but rather has applied the
“most exacting scrutiny.” Turner Broadcasting System, Inc. v. FCC , 512 U.S.
622 , 642 (1994). Although the objectives the Government seeks
to further by the statute are not without significance, the Court
must, and now does, find the Act does not satisfy exacting
scrutiny.

															The Government is correct when it states
military medals “serve the important public function of recognizing
and expressing gratitude for acts of heroism and sacrifice in
military service,” and also “ ‘foste[r] morale, mission
accomplishment and esprit de corps’ among service members.” Brief
for United States 37, 38. General George Washington observed that
an award for valor would “cherish a virtuous ambition in
. . . soldiers, as well as foster and encourage every
species of military merit.” General Orders of George Washington
Issued at Newburgh on the Hudson, 1782–1783 (Aug. 7, 1782),
p. 30 (E. Boynton ed. 1883). Time has not diminished this
idea. In periods of war and peace alike public recognition of valor
and noble sacrifice by men and women in uniform reinforces the
pride and national resolve that the military relies upon to fulfill
its mission.

															These interests are related to the integrity of
the military honors system in general, and the Congressional Medal
of Honor in particular. Although millions have served with brave
resolve, the Medal, which is the highest military award for valor
against an enemy force, has been given just 3,476 times.
Established in 1861, the Medal is reserved for those who have
distinguished themselves “conspicuously by gallantry and
intrepidity at the risk of his life above and beyond the call of
duty.” 10 U. S. C. §§3741 (Army), 6241 (Navy and Marine
Corps), 8741 (Air Force), 14 U. S. C. §491 (Coast Guard).
The stories of those who earned the Medal inspire and fascinate,
from Dakota Meyer who in 2009 drove five times into the midst of a
Taliban ambush to save 36 lives, see Curtis, President Obama Awards
Medal of Honor to Dakota Meyer, The White House Blog (Sept. 15,
2011) (all Internet materials as visited June 25, 2012, and
available in Clerk of Court’s case file); to Desmond Doss who
served as an army medic on Okinawa and on June 5, 1945, rescued 75
fellow soldiers, and who, after being wounded, gave up his own
place on a stretcher so others could be taken to safety, see
America’s Heroes 88–90 (J. Willbanks ed. 2011); to William Carney
who sustained multiple gunshot wounds to the head, chest, legs, and
arm, and yet carried the flag to ensure it did not touch the ground
during the Union army’s assault on Fort Wagner in July 1863, id., at 44–45. The rare acts of courage the Medal celebrates
led President Truman to say he would “rather have that medal round
my neck than . . . be president of the United States.”
Truman Gives No. 1 Army Medal to 15 Heroes, Washington Post, Oct. 13, 1945, p. 5. The Government’s interest in protecting
the integrity of the Medal of Honor is beyond question.

															But to recite the Government’s compelling
interests is not to end the matter. The First Amendment requires
that the Government’s chosen restriction on the speech at issue be
“actually necessary” to achieve its interest. En-tertainment
Merchants Assn. , 564 U. S., at ___ (slip op., at 12).
There must be a direct causal link between the restriction imposed
and the injury to be prevented. See ibid . The link between
the Government’s interest in protecting the integrity of the
military honors system and the Act’s restriction on the false
claims of liars like respondent has not been shown. Although
appearing to concede that “an isolated misrepresentation by itself
would not tarnish the meaning of military honors,” the Government
asserts it is “common sense that false representations have the
tendency to dilute the value and meaning of military awards,” Brief
for United States 49, 54. It must be acknowledged that when a
pretender claims the Medal to be his own, the lie might harm the
Government by demeaning the high purpose of the award, diminishing
the honor it confirms, and creating the appearance that the Medal
is awarded more often than is true. Furthermore, the lie may offend
the true holders of the Medal. From one perspective it in-sults
their bravery and high principles when falsehood puts them in the
unworthy company of a pretender.

															Yet these interests do not satisfy the
Government’s heavy burden when it seeks to regulate protected
speech. See United States v. Playboy Entertainment Group,
Inc. , 529 U.S.
803 , 818 (2000). The Government points to no evidence to
support its claim that the public’s general perception of military
awards is diluted by false claims such as those made by Alvarez.
Cf. Entertainment Merchants Assn., supra, at ___–___ (slip
op., at 12–13) (analyzing and rejecting the findings of research
psychologists demonstrating the causal link between violent video
games and harmful effects on children). As one of the Government’s amici notes “there is nothing that charlatans such as Xavier
Alvarez can do to stain [the Medal winners’] honor.” Brief for
Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if
true holders of the Medal might experience anger and
frustration.

															The lack of a causal link between the
Government’s stated interest and the Act is not the only way in
which the Act is not actually necessary to achieve the Government’s
stated interest. The Government has not shown, and cannot show, why
counterspeech would not suffice to achieve its interest. The facts
of this case indicate that the dynamics of free speech, of
counterspeech, of refutation, can overcome the lie. Respondent lied
at a public meeting. Even before the FBI began investigating him
for his false statements “Alvarez was perceived as a phony,” 617
F. 3d, at 1211. Once the lie was made public, he was ridiculed
online, see Brief for Respondent 3, his actions were reported in
the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA,
Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board
member called for his resignation, see, e.g., Bigham, Water
District Rep Requests Alvarez Resign in Wake of False Medal Claim,
San Bernardino Cty., CA, The Sun (May 21, 2008). There is good
reason to believe that a similar fate would befall other false
claimants. See Brief for Reporters Committee for Freedom of the
Press et al. as Amici Curiae 30–33 (listing numerous
examples of public exposure of false claimants). Indeed, the
outrage and contempt expressed for respondent’s lies can serve to
reawaken and reinforce the public’s respect for the Medal, its
recipients, and its high purpose. The acclaim that recipients of
the Congressional Medal of Honor receive also casts doubt on the
proposition that the public will be misled by the claims of
charlatans or become cynical of those whose heroic deeds earned
them the Medal by right. See, e.g., Well Done, Washington Post, Feb. 5, 1943, p. 8 (reporting on Pres-ident
Roosevelt’s awarding the Congressional Medal of Honor to Maj. Gen.
Alexander Vandegrift); Devroy, Medal of Honor Given to 2 Killed in
Somalia, Washington Post, May 24, 1994, p. A6
(reporting on President Clinton’s awarding the Congressional Medal
of Honor to two special forces soldiers killed during operations in
Somalia).

															The remedy for speech that is false is speech
that is true. This is the ordinary course in a free society. The
response to the unreasoned is the rational; to the uninformed, the
enlightened; to the straight-out lie, the simple truth. See Whitney v. California , 274 U.S.
357 , 377 (1927) (Brandeis, J., concurring) (“If there be time
to expose through discussion the falsehood and fallacies, to avert
the evil by the processes of education, the remedy to be ap-plied
is more speech, not enforced silence”). The theory of our
Constitution is “that the best test of truth is the power of the
thought to get itself accepted in the competition of the market,” Abrams v. United States , 250
U.S. 616 , 630 (1919) (Holmes, J., dissenting). The First
Amendment itself ensures the right to respond to speech we do not
like, and for good reason. Freedom of speech and thought flows not
from the beneficence of the state but from the inalienable rights
of the person. And suppression of speech by the government can make
exposure of falsity more difficult, not less so. Society has the
right and civic duty to engage in open, dynamic, rational
discourse. These ends are not well served when the government seeks
to orchestrate public discussion through content-based
mandates.

															Expressing its concern that counterspeech is
insuf- ficient, the Government responds that because “some military
records have been lost . . . some claims [are]
un-verifiable,” Brief for United States 50. This proves little,
however; for without verifiable records, successful criminal
prosecution under the Act would be more difficult in any event. So,
in cases where public refutation will not serve the Government’s
interest, the Act will not either. In addition, the Government
claims that “many [false claims] will remain unchallenged.” Id., at 55. The Government provides no support for the
contention. And in any event, in order to show that public
refutation is not an adequate alternative, the Government must
demonstrate that unchallenged claims undermine the public’s
perception of the military and the integrity of its awards system.
This showing has not been made.

															It is a fair assumption that any true holders of
the Medal who had heard of Alvarez’s false claims would have been
fully vindicated by the community’s expression of outrage, showing
as it did the Nation’s high regard for the Medal. The same can be
said for the Government’s interest. The American people do not need
the assistance of a government prosecution to express their high
regard for the special place that military heroes hold in our
tradi-tion. Only a weak society needs government protection or
intervention before it pursues its resolve to preserve the truth.
Truth needs neither handcuffs nor a badge for its vindication.

															In addition, when the Government seeks to
regulate protected speech, the restriction must be the “least
restrictive means among available, effective alternatives.” Ashcroft , 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 Congressional 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
individuals 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 Department of Defense
investigated the feasibility of establishing 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.

															The Government may have responses to some of
these criticisms, but there has been no clear showing of the
necessity of the statute, the necessity required by exacting
scrutiny.

															*  *  *

															The Nation well knows that one of the costs of
the First Amendment is that it protects the speech we detest as
well as the speech we embrace. Though few might find respondent’s
statements anything but contemptible, his right to make those
statements is protected by the Constitution’s guarantee of freedom
of speech and expression. The Stolen Valor Act infringes upon
speech protected by the First Amendment.

															The judgment of the Court of Appeals is
affirmed.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–210

															_________________

															UNITED STATES, PETITIONER v. XAVIER
ALVAREZ

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 28, 2012]

															Justice Breyer, with whom Justice Kagan joins,
con- curring in the judgment.

															I agree with the plurality that the Stolen Valor
Act of 2005 violates the First Amendment. But I do not rest my
conclusion upon a strict categorical analysis. Ante, at
4–10. Rather, I base that conclusion upon the fact that the statute
works First Amendment harm, while the Government can achieve its
legitimate objectives in less restrictive ways.

															I

															In determining whether a statute violates the
First Amendment, this Court has often found it appropriate to
examine the fit between statutory ends and means. In doing so, it
has examined speech-related harms, justifications, and potential
alternatives. In particular, it has taken account of the
seriousness of the speech-related harm the provision will likely
cause, the nature and importance of the provision’s countervailing
objectives, the extent to which the provision will tend to achieve
those objectives, and whether there are other, less restrictive
ways of doing so. Ultimately the Court has had to determine whether
the statute works speech-related harm that is out of proportion to
its justifications.

															Sometimes the Court has referred to this
approach as “intermediate scrutiny,” sometimes as “proportionality”
review, sometimes as an examination of “fit,” and sometimes it has
avoided the application of any label at all. See, e.g., Turner
Broadcasting System, Inc. v. FCC , 512 U.S.
622 , 641–652 (1994) (intermediate scrutiny); Randall v. Sorrell , 548 U.S.
230 , 249 (2006) (plurality opinion) (proportionality); Board
of Trustees of State Univ. of N. Y. v. Fox , 492 U.S.
469 , 480 (1989) (requiring a “fit” be- tween means and ends
that is “ ‘in proportion to the in- terest served’ ”); In re R. M. J. , 455 U.S.
191 , 203 (1982) (“[I]nterference with speech must be in
proportion to the [substantial governmental] interest served”); Pickering v. Board of Ed. of Township High School Dist.
205, Will Cty. , 391 U.S.
563 , 568 (1968).

															Regardless of the label, some such approach is
necessary if the First Amendment is to offer proper protection in
the many instances in which a statute adversely affects
constitutionally protected interests but warrants neither
near-automatic condemnation (as “strict scrutiny” implies) nor
near-automatic approval (as is implicit in “rational basis”
review). See, e.g., Turner Broadcasting System, Inc. , supra , at 641–652 (“must-carry” cable regulations); Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n of N. Y. , 447 U.S.
557 , 566 (1980) (nonmisleading commercial speech); Burdick v. Takushi , 504 U.S.
428 , 433–434 (1992) (election regulation); Pickering , supra, at 568 (government employee speech); United
States v. O’Brien , 391 U.S.
367 , 377 (1968) (application of generally appli- cable laws to
expressive conduct). I have used the term “proportionality” to
describe this approach. Thompson v. Western States
Medical Center , 535 U.S.
357 , 388 (2002) (dissenting opinion); see also Bartnicki v. Vopper , 532 U.S.
514 , 536 (2001) (concurring opinion); Nixon v. Shrink
Missouri Government PAC , 528 U.S.
377 , 402–403 (2000) (concurring opinion). But in this case, the
Court’s term “intermediate scrutiny” describes what I think we
should do.

															As the dissent points out, “there are broad
areas in which any attempt by the state to penalize purportedly
false speech would present a grave and unacceptable dan- ger of
suppressing truthful speech.” Post, at 14. Laws restricting
false statements about philosophy, religion, history, the social
sciences, the arts, and the like raise such concerns, and in many
contexts have called for strict scrutiny. But this case does not
involve such a law. The dangers of suppressing valuable ideas are
lower where, as here, the regulations concern false statements
about easily verifiable facts that do not concern such subject
matter. Such false factual statements are less likely than are true
factual statements to make a valuable contribution to the
marketplace of ideas. And the government often has good reasons to
prohibit such false speech. See infra, at 5–7 (listing
examples of statutes and doctrines regulating false factual
speech). But its regulation can nonetheless threaten speech-related
harms. Those circumstances lead me to apply what the Court has
termed “intermediate scrutiny” here.

															II

															A

															The Stolen Valor Act makes it a crime
“falsely” to “represen[t]” oneself “to have been awarded any
decoration or medal authorized by Congress for the Armed Forces of
the United States.” 18 U. S. C. §704(b). I would read the
statute favorably to the Government as criminalizing only false
factual statements made with knowledge of their fal- sity and with
the intent that they be taken as true. See Staples v. United States , 511 U.S.
600 , 605 (1994) (courts construe statutes “in light of the
background rules of the common law, . . . in which the
requirement of some mens rea for a crime is firmly
embedded”); cf. New York Times Co. v. Sullivan , 376 U.S.
254 , 279–280 (1964) ( First Amendment allows a public official
to recover for defamation only upon a showing of “ ‘actual
malice’ ”). As so interpreted the statute covers only lies.
But although this interpretation diminishes the extent to which the
statute endangers First Amendment values, it does not eliminate the
threat.

															I must concede, as the Government points out,
that this Court has frequently said or implied that false factual
statements enjoy little First Amendment protection. See, e.g., BE&K Constr. Co. v. NLRB , 536 U.S.
516 , 531 (2002) (“[F]alse statements may be unprotected for
their own sake”); Hustler Magazine, Inc. v. Falwell , 485 U.S.
46 , 52 (1988) (“False statements of fact are particularly
valueless”); Gertz v. Robert Welch, Inc. , 418 U.S.
323 , 340 (1974) (“[T]he erroneous statement of fact is not
worthy of constitutional protection”).

															But these judicial statements cannot be read to
mean “no protection at all.” False factual statements can serve
useful human objectives, for example: in social contexts, where
they may prevent embarrassment, protect privacy, shield a person
from prejudice, provide the sick with comfort, or preserve a
child’s innocence; in public contexts, where they may stop a panic
or otherwise preserve calm in the face of danger; and even in
technical, philosophical, and scientific contexts, where (as
Socrates’ methods suggest) examination of a false statement (even
if made deliberately to mislead) can promote a form of thought that
ultimately helps realize the truth. See, e.g., 638 F.3d 666,
673–675 (CA9 2011) (Kozinski, J., concurring in denial of rehearing
en banc) (providing numerous examples); S. Bok, Lying: Moral Choice
in Public and Private Life (1999) (same); New York Times
Co. , supra, at 279, n. 19 (“Even a false statement
may be deemed to make a valuable contribution to public debate,
since it brings about ‘the clearer perception and livelier
impression of truth, produced by its collision with error’ ”
(quoting J. Mill, On Liberty 15 (Blackwell ed. 1947))).

															Moreover, as the Court has often said, the
threat of criminal prosecution for making a false statement can
inhibit the speaker from making true statements, thereby “chilling”
a kind of speech that lies at the First Amendment’s heart. See, e.g., Gertz , supra, at 340–341. Hence, the Court
emphasizes mens rea requirements that provide “breathing
room” for more valuable speech by reducing an honest speaker’s fear
that he may accidentally incur liability for speaking.

															Further, the pervasiveness of false statements,
made for better or for worse motives, made thoughtlessly or de-
liberately, made with or without accompanying harm, provides a
weapon to a government broadly empowered to prosecute falsity
without more. And those who are unpopular may fear that the
government will use that weapon selectively, say by prosecuting a
pacifist who sup- ports his cause by (falsely) claiming to have
been a war hero, while ignoring members of other political groups
who might make similar false claims.

															I also must concede that many statutes and
common-law doctrines make the utterance of certain kinds of false
statements unlawful. Those prohibitions, however, tend to be
narrower than the statute before us, in that they limit the scope
of their application, sometimes by requiring proof of specific harm
to identifiable victims; sometimes by specifying that the lies be
made in contexts in which a tangible harm to others is especially
likely to occur; and sometimes by limiting the prohibited lies to
those that are particularly likely to produce harm.

															Fraud statutes, for example, typically require
proof of a misrepresentation that is material, upon which the
victim relied, and which caused actual injury. See Restatement
(Second) of Torts §525 (1976). Defamation statutes focus upon
statements of a kind that harm the reputation of another or deter
third parties from association or dealing with the victim. See id. , §§558, 559. Torts involving the intentional infliction
of emotional distress (like torts involving placing a victim in a
false light) concern falsehoods that tend to cause harm to a
specific victim of an emotional-, dignitary-, or privacy-related
kind. See id. , §652E.

															Perjury statutes prohibit a particular set of
false statements—those made under oath—while requiring a showing of
materiality. See, e.g., 18 U. S. C. §1621.
Statutes forbidding lying to a government official (not under oath)
are typically limited to circumstances where a lie is likely to
work particular and specific harm by interfering with the
functioning of a government department, and those statutes also
require a showing of materiality. See, e.g., §1001.

															Statutes prohibiting false claims of terrorist
attacks, or other lies about the commission of crimes or
catastrophes, require proof that substantial public harm be
directly foreseeable, or, if not, involve false statements that are
very likely to bring about that harm. See, e.g., 47 CFR
§73.1217 (2011) (requiring showing of foreseeability and actual
substantial harm); 18 U. S. C. §1038(a)(1) (prohibiting
knowing false statements claiming that terrorist attacks have
taken, are taking, or will take, place).

															Statutes forbidding impersonation of a public
official typically focus on acts of impersonation, not mere
speech, and may require a showing that, for example, someone was
deceived into following a “course [of action] he would not have
pursued but for the deceitful conduct.” United States v. Lepowitch , 318 U.S.
702 , 704 (1943); see, e.g., §912 (liability attaches to
“[w]hoever falsely assumes or pretends to be an officer or employee
acting under the authority of the United States . . . and acts as such ” (emphasis added)).

															Statutes prohibiting trademark infringement
present, perhaps, the closest analogy to the present statute.
Trademarks identify the source of a good; and infringement causes
harm by causing confusion among potential customers (about the
source) and thereby diluting the value of the mark to its owner, to
consumers, and to the econ- omy. Similarly, a false claim of
possession of a medal or other honor creates confusion about who is
entitled to wear it, thus diluting its value to those who have
earned it, to their families, and to their country. But trademark
statutes are focused upon commercial and promotional activities
that are likely to dilute the value of a mark. Indeed, they
typically require a showing of likely confusion, a showing that
tends to assure that the feared harm will in fact take place. See
15 U. S. C. §1114(1)(a); KP Permanent Make-Up,
Inc. v. Lasting Impression I, Inc. , 543 U.S.
111 , 117 (2004); see also San Francisco Arts &
Athletics, Inc. v. United States Olympic Comm. , 483 U.S.
522 , 539–540, 548 (1987) (upholding statute giving the United
States Olympic Committee the right to prohibit certain commercial and promotional uses of the word “Olympic”).

															While this list is not exhaustive, it is
sufficient to show that few statutes, if any, simply prohibit
without limitation the telling of a lie, even a lie about one
particular matter. Instead, in virtually all these instances
limitations of context, requirements of proof of injury, and the
like, narrow the statute to a subset of lies where specific harm is
more likely to occur. The limitations help to make certain that the
statute does not allow its threat of liability or criminal
punishment to roam at large, discouraging or forbidding the telling
of the lie in contexts where harm is unlikely or the need for the
prohibition is small.

															The statute before us lacks any such limiting
features. It may be construed to prohibit only knowing and
intentional acts of deception about readily verifiable facts within
the personal knowledge of the speaker, thus reducing the risk that
valuable speech is chilled. Supra, at 3–4. But it still
ranges very broadly. And that breadth means that it creates a
significant risk of First Amendment harm. As written, it applies in
family, social, or other private contexts, where lies will often
cause little harm. It also applies in political contexts, where
although such lies are more likely to cause harm, the risk of
censorious se- lectivity by prosecutors is also high. Further,
given the potential haziness of individual memory along with the
large number of military awards covered (ranging from medals for
rifle marksmanship to the Congressional Medal of Honor), there
remains a risk of chilling that is not completely eliminated by mens rea requirements; a speaker might still be worried
about being prosecuted for a careless false statement, even
if he does not have the intent required to render him liable. And
so the prohibition may be applied where it should not be applied,
for example, to bar stool braggadocio or, in the political arena,
subtly but selectively to speakers that the Government does not
like. These considerations lead me to believe that the statute as
written risks significant First Amendment harm.

															B

															Like both the plurality and the dissent, I
believe the statute nonetheless has substantial justification. It
seeks to protect the interests of those who have sacrificed their
health and life for their country. The statute serves this interest
by seeking to preserve intact the country’s recognition of that
sacrifice in the form of military honors. To permit those who have
not earned those honors to claim otherwise dilutes the value of the
awards. Indeed, the Nation cannot fully honor those who have
sacrificed so much for their country’s honor unless those who claim
to have received its military awards tell the truth. Thus, the
statute risks harming protected interests but only in order to
achieve a substantial countervailing objective.

															C

															We must therefore ask whether it is possible
substantially to achieve the Government’s objective in less
burdensome ways. In my view, the answer to this question is “yes.”
Some potential First Amendment threats can be alleviated by
interpreting the statute to require knowledge of falsity, etc. Supra, at 3–4. But other First Amendment risks, primarily
risks flowing from breadth of coverage, remain. Supra, at
4–5, 7–8. As is indicated by the limitations on the scope of the
many other kinds of statutes regulating false factual speech, supra, at 5–7, it should be possible significantly to
diminish or eliminate these re- maining risks by enacting a similar
but more finely tailored statute. For example, not all military
awards are alike. Congress might determine that some warrant
greater protection than others. And a more finely tailored statute
might, as other kinds of statutes prohibiting false factual
statements have done, insist upon a showing that the false
statement caused specific harm or at least was material, or focus
its coverage on lies most likely to be harmful or on contexts where
such lies are most likely to cause harm.

															I recognize that in some contexts, particularly
political contexts, such a narrowing will not always be easy to
achieve. In the political arena a false statement is more likely to
make a behavioral difference (say, by leading the listeners to vote
for the speaker) but at the same time criminal prosecution is
particularly dangerous (say, by radically changing a potential
election result) and consequently can more easily result in
censorship of speakers and their ideas. Thus, the statute may have
to be significantly narrowed in its applications. Some lower courts
have upheld the constitutionality of roughly comparable but
narrowly tailored statutes in political contexts. See, e.g., United We Stand America, Inc. v. United We Stand, America
New York, Inc. , 128 F.3d 86 , 93 (CA2 1997) (upholding against First Amendment
challenge application of Lanham Act to a political organization); Treasure of the Committee to Elect Gerald D. Lostracco v. Fox , 150 Mich. App. 617, 389 N.W.2d 446 (1986) (upholding
under First Amendment statute prohibiting campaign material falsely
claiming that one is an incumbent). Without expressing any view on
the validity of those cases, I would also note, like the plurality,
that in this area more accurate information will normally
counteract the lie. And an accurate, publicly available register of
military awards, easily obtainable by political opponents, may well
adequately protect the integrity of an award against those who
would falsely claim to have earned it. See ante, at 17–18.
And so it is likely that a more narrowly tailored statute combined
with such information-disseminating devices will effectively serve
Congress’ end.

															The Government has provided no convincing
explanation as to why a more finely tailored statute would not
work. In my own view, such a statute could significantly reduce the
threat of First Amendment harm while permitting the statute to
achieve its important protective objective. That being so, I find
the statute as presently drafted works disproportionate
constitutional harm. It consequently fails intermediate scrutiny,
and so violates the First Amendment.

															For these reasons, I concur in the Court’s
judgment. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 11–210

															_________________

															UNITED STATES, PETITIONER v. XAVIER
ALVAREZ

															on writ of certiorari to the united states
court of appeals for the ninth circuit

															[June 28, 2012]

															Justice Alito, with whom Justice Scalia and
Jus- tice Thomas join, dissenting.

															Only the bravest of the brave are awarded the
Congressional Medal of Honor, but the Court today holds that every
American has a constitutional right to claim to have received this
singular award. The Court strikes down the Stolen Valor Act of
2005, which was enacted to stem an epidemic of false claims about
military decorations. These lies, Congress reasonably concluded,
were undermining our country’s system of military honors and
inflicting real harm on actual medal recipients and their
families.

															Building on earlier efforts to protect the
military awards system, Congress responded to this problem by
crafting a narrow statute that presents no threat to the freedom of
speech. The statute reaches only knowingly false statements about
hard facts directly within a speaker’s per- sonal knowledge. These
lies have no value in and of themselves, and proscribing them does
not chill any valuable speech.

															By holding that the First Amendment nevertheless
shields these lies, the Court breaks sharply from a long line of
cases recognizing that the right to free speech does not protect
false factual statements that inflict real harm and serve no
legitimate interest. I would adhere to that principle and would
thus uphold the constitutionality of this valuable law.

															I

															The Stolen Valor Act makes it a misdemeanor to
“falsely represen[t]” oneself as having been awarded a medal,
decoration, or badge for service in the Armed Forces of the United
States. 18 U. S. C. §704(b). Properly construed, this
statute is limited in five significant respects. First, the Act
applies to only a narrow category of false representations about
objective facts that can almost always be proved or disproved with
near certainty. Second, the Act concerns facts that are squarely
within the speaker’s personal knowledge. Third, as the Government
maintains, see Brief for United States 15–17, and both the
plurality, see ante, at 7, and the concurrence, see ante, at 3 (Breyer, J., concurring in judgment), seemingly
accept, a conviction under the Act requires proof beyond a
reasonable doubt that the speaker actually knew that the
representation was false.[ 1 ]
Fourth, the Act applies only to statements that could reasonably be
interpreted as communicating actual facts; it does not reach
dramatic performances, satire, parody, hyperbole, or the
like.[ 2 ] Finally, the Act is
strictly viewpoint neutral. The false statements proscribed by the
Act are highly unlikely to be tied to any particular political or
ideological message. In the rare cases where that is not so, the
Act applies equally to all false statements, whether they tend to
disparage or commend the Government, the military, or the system of
mil- itary honors.

															The Stolen Valor Act follows a long tradition of
efforts to protect our country’s system of military honors. When
George Washington, as the commander of the Continental Army,
created the very first “honorary badges of distinction” for service
in our country’s military, he established a rigorous system to
ensure that these awards would be received and worn by only the
truly deserving. See General Orders of George Washington Issued at
Newburgh on the Hudson, 1782–1783, p. 35 (E. Boynton ed. 1883)
(reprint 1973) (requiring the submission of “incontest- ible proof”
of “singularly meritorious action” to the Commander in Chief).
Washington warned that anyone with the “insolence to assume” a
badge that had not actually been earned would be “severely
punished.” Id. , at 34.

															Building on this tradition, Congress long ago
made it a federal offense for anyone to wear, manufacture, or sell
certain military decorations without authorization. See Act of Feb.
24, 1923, ch. 110, 42Stat. 1286 (codified as amended at 18
U. S. C. §704(a)). Although this Court has never opined
on the constitutionality of that particular provision, we have said
that §702, which makes it a crime to wear a United States military
uniform without authorization, is “a valid statute on its face.” Schacht v. United States , 398 U.S.
58 , 61 (1970).

															Congress passed the Stolen Valor Act in response
to a proliferation of false claims concerning the receipt of
military awards. For example, in a single year, more than
600 Virginia residents falsely claimed to have won the Medal of
Honor.[ 3 ] An investigation of
the 333 people listed in the online edition of Who’s Who as having
received a top military award revealed that fully a third of the
claims could not be substantiated.[ 4 ] When the Library of Congress compiled oral histories
for its Veterans History Project, 24 of the 49 individuals who
identified themselves as Medal of Honor recipients had not actually
received that award.[ 5 ] The
same was true of 32 individuals who claimed to have been awarded
the Distinguished Service Cross and 14 who claimed to have won the
Navy Cross.[ 6 ] Notorious cases
brought to Congress’ attention included the case of a judge who
falsely claimed to have been awarded two Medals of Honor and
displayed counterfeit medals in his courtroom;[ 7 ] a television network’s military consultant who
falsely claimed that he had received the Silver Star;[ 8 ] and a former judge advocate in the Marine
Corps who lied about receiving the Bronze Star and a Purple
Heart.[ 9 ]

															As Congress recognized, the lies proscribed by
the Stolen Valor Act inflict substantial harm. In many instances,
the harm is tangible in nature: Individuals often falsely represent
themselves as award recipients in order to obtain financial or
other material rewards, such as lucrative contracts and government
benefits.[ 10 ] An
investigation of false claims in a single region of the United
States, for example, revealed that 12 men had defrauded the
Department of Veterans Affairs out of more than $1.4 million in
veteran’s benefits.[ 11 ] In
other cases, the harm is less tangible, but nonetheless
significant. The lies proscribed by the Stolen Valor Act tend to
debase the distinctive honor of military awards. See Stolen Valor
Act of 2005, §2, 120Stat. 3266, note following 18
U. S. C. §704 (finding that “[f]raudulent claims
surrounding the receipt of [military decorations and medals] damage
the reputation and meaning of such decorations and medals”). And
legitimate award recipients and their families have expressed the
harm they endure when an imposter takes credit for he- roic actions
that he never performed. One Medal of Honor recipient described the
feeling as a “ ‘slap in the face of veterans who have paid the
price and earned their medals.’ ”[ 12 ]

															It is well recognized in trademark law that the
proliferation of cheap imitations of luxury goods blurs the
“ ‘signal’ given out by the purchasers of the originals.”
Landes & Posner, Trademark Law: An Economic Perspective, 30 J.
Law & Econ. 265, 308 (1987). In much the same way, the
proliferation of false claims about military awards blurs the
signal given out by the actual awards by making them seem more
common than they really are, and this diluting effect harms the
military by hampering its efforts to foster morale and esprit de
corps. Surely it was reasonable for Congress to conclude that the
goal of preserving the in- tegrity of our country’s top military
honors is at least as worthy as that of protecting the prestige
associated with fancy watches and designer handbags. Cf. San
Francisco Arts & Athletics, Inc. v. United States
Olympic Comm. , 483 U.S.
522 , 539–541 (1987) (rejecting First Amendment challenge to law
prohibiting certain unauthorized uses of the word “Olympic” and
recognizing that such uses harm the U. S. Olympic Committee by
“lessening the distinctiveness” of the term).

															Both the plurality and Justice Breyer argue that
Congress could have preserved the integrity of military honors by
means other than a criminal prohibition, but Congress had ample
reason to believe that alternative approaches would not be
adequate. 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 4–5 (2009).[ 13 ]

															Because a sufficiently comprehensive database is
not practicable, lies about military awards cannot be remedied by
what the plurality calls “counterspeech.” Ante, at 15.
Without the requisite database, many efforts to refute false claims
may be thwarted, and some legitimate award recipients may be
erroneously attacked. In addition, a steady stream of stories in
the media about the exposure of imposters would tend to increase
skepticism among members of the public about the entire awards
system. This would only exacerbate the harm that the Stolen Valor
Act is meant to prevent.

															The plurality and the concurrence also suggest
that Congress could protect the system of military honors by
enacting a narrower statute. The plurality recommends a law that
would apply only to lies that are intended to “secure moneys or
other valuable considerations.” Ante , at 11. In a similar
vein, the concurrence comments that “a more finely tailored statute
might . . . insist upon a showing that the false
statement caused specific harm.” Ante, at 9 (opinion of
Breyer, J.). But much damage is caused, both to real award
recipients and to the system of mili- tary honors, by false
statements that are not linked to any financial or other tangible
reward. Unless even a small financial loss—say, a dollar given to a
homeless man falsely claiming to be a decorated veteran—is more
important in the eyes of the First Amendment than the damage caused
to the very integrity of the military awards system, there is no
basis for distinguishing between the Stolen Valor Act and the
alternative statutes that the plurality and concurrence appear
willing to sustain.

															Justice Breyer also proposes narrowing the
statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not
provide a hint about where he thinks the line must be drawn.
Perhaps he expects Congress to keep trying until it eventually
passes a law that draws the line in just the right place.

															II

															A

															Time and again, this Court has recognized that
as a general matter false factual statements possess no intrinsic
First Amendment value. See Illinois ex rel. Madigan v. Telemarketing Associates, Inc. , 538
U.S. 600 , 612 (2003) (“Like other forms of public deception,
fraudulent charitable solicitation is unprotected speech”); BE&K Constr. Co. v. NLRB , 536
U.S. 516 , 531 (2002) (“[F]alse statements may be unprotected
for their own sake”); Hustler Magazine, Inc. v. Falwell , 485 U.S.
46 , 52 (1988) (“False statements of fact are particularly
valueless; they interfere with the truth-seeking function of the
marketplace of ideas, and they cause damage to an individual’s
reputation that cannot easily be repaired by counterspeech, however
persuasive or effective”); Keeton v. Hustler Magazine,
Inc. , 465 U.S.
770 , 776 (1984) (“There is ‘no constitutional value in false
statements of fact’ ” (quoting Gertz v. Robert
Welch, Inc. , 418 U.S.
323 , 340 (1974))); Bill John- son’s Restaurants, Inc. v. NLRB , 461 U.S.
731 , 743 (1983) (“[F]alse statements are not immunized by the
First Amendment right to freedom of speech”); Brown v. Hartlage , 456 U.S.
45 , 60 (1982) (“Of course, demonstrable falsehoods are not
protected by the First Amendment in the same manner as truthful
statements”); Herbert v. Lando , 441 U.S.
153 , 171 (1979) (“Spreading false information in and of itself
carries no First Amendment credentials”); Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S.
748 , 771 (1976) (“Untruthful speech, commercial or otherwise,
has never been protected for its own sake”); Gertz , supra, at 340 (“[T]he erroneous statement of fact is not
worthy of constitutional protection”); Time, Inc. v. Hill , 385 U.S.
374 , 389 (1967) (“[T]he constitutional guarantees [of the First
Amendment] can tolerate sanctions against calculated falsehood without significant impairment of their essential
function”); Garrison v. Louisiana , 379 U.S.
64 , 75 (1964) (“[T]he knowingly false statement and the false
statement made with reckless disregard of the truth, do not enjoy
constitutional protection”).

															Consistent with this recognition, many kinds of
false factual statements have long been proscribed without
“ ‘rais[ing] any Constitutional problem.’ ” United
States v. Stevens , 559 U. S. ___, ___ (2010) (slip
op., at 6) (quoting Chaplinsky v. New Hampshire , 315 U.S.
568 , 571–572 (1942)). Laws prohibiting fraud, perjury, and
defamation, for example, were in existence when the First Amendment
was adopted, and their constitutionality is now beyond question.
See, e.g., Donaldson v. Read Magazine, Inc. , 333 U.S.
178 , 190 (1948) (explaining that the government’s power “to
protect people against fraud” has “always been recognized in this
country and is firmly established”); United States v. Dunnigan , 507 U.S.
87 , 97 (1993) (observing that “the constitutionality of perjury
statutes is unquestioned”); Beauharnais v. Illinois , 343 U.S.
250 , 256 (1952) (noting that the “prevention and punishment” of
libel “have never been thought to raise any Constitutional
problem”).

															We have also described as falling outside the
First Amendment’s protective shield certain false factual
statements that were neither illegal nor tortious at the time of
the Amendment’s adoption. The right to freedom of speech has been
held to permit recovery for the intentional infliction of emotional
distress by means of a false statement, see Falwell , supra, at 56, even though that tort did not enter our law
until the late 19th century, see W. Keeton, D. Dobbs, R. Keeton,
& D. Owen, Prosser and Keeton on Law of Torts §12, p. 60, and
n. 47. (5th ed. 1984) (hereinafter Prosser and Keeton). And in Hill , supra, at 390, the Court concluded that the
free speech right allows recovery for the even more modern tort of
false-light invasion of privacy, see Prosser and Keeton §117, at
863.

															In line with these holdings, it has long been
assumed that the First Amendment is not offended by prominent
criminal statutes with no close common-law analog. The most well
known of these is probably 18 U. S. C. §1001, which makes
it a crime to “knowingly and willfully” make any “materially false,
fictitious, or fraudulent statement or representation” in “any
matter within the jurisdiction of the executive, legislative, or
judicial branch of the Government of the United States.” Unlike
perjury, §1001 is not limited to statements made under oath or
before an official government tribunal. Nor does it require any
showing of “pecuniary or property loss to the government.” United States v. Gilliland , 312 U.S.
86 , 93 (1941). Instead, the statute is based on the need to
protect “agencies from the perversion which might result
from the deceptive practices described.” Ibid. (emphasis
added).

															Still other statutes make it a crime to falsely
represent that one is speaking on behalf of, or with the approval
of, the Federal Government. See, e.g., 18 U. S. C.
§912 (making it a crime to falsely impersonate a federal officer);
§709 (making it a crime to knowingly use, without authorization,
the names of enumerated federal agencies, such as “Federal Bureau
of Investigation,” in a manner reasonably calculated to convey the
impression that a communication is approved or authorized by the
agency). We have recognized that §912, like §1001, does not require
a showing of pecuniary or property loss and that its purpose is to
“ ‘maintain the general good repute and dignity’ ” of
Government service. United States v. Lepowitch , 318 U.S.
702 , 704 (1943) (quoting United States v. Barnow , 239 U.S.
74 , 80 (1915)). All told, there are more than 100 federal
criminal statutes that punish false statements made in connection
with areas of federal agency concern. See United States v. Wells , 519 U.S.
482 , 505–507, and nn. 8–10 (1997) (Stevens, J.,
dissenting) (citing “at least 100 federal false statement statutes”
in the United States Code).

															These examples amply demonstrate that false
statements of fact merit no First Amendment protection in their own
right.[ 14 ] It is true, as
Justice Breyer notes, that many in our society either approve or
condone certain discrete categories of false statements, including
false statements made to prevent harm to innocent victims and
so-called “white lies.” See ante , at 4. But respondent’s
false claim to have received the Medal of Honor did not fall into
any of these categories. His lie did not “prevent embarrassment,
protect privacy, shield a person from prejudice, provide the sick
with comfort, or preserve a child’s innocence.” Ibid . Nor
did his lie “stop a panic or otherwise preserve calm in the face of
danger” or further philosophical or scientific debate. Ibid. Respondent’s claim, like all those covered by the Stolen Valor Act,
served no valid purpose.

															Respondent and others who join him in attacking
the Stolen Valor Act take a different view. Respondent’s brief
features a veritable paean to lying. According to respondent, his
lie about the Medal of Honor was nothing out of the ordinary for
21st-century Americans. “Everyone lies,” he says. Brief for
Respondent 10. “We lie all the time.” Ibid. “[H]uman beings
are constantly forced to choose the persona we present to the
world, and our choices nearly always involve intentional omissions
and misrepresentations, if not outright deception.” Id., at
39. An academic amicus tells us that the First Amendment
protects the right to construct “self-aggrandizing fabrications
such as having been awarded a military decoration.” Brief for
Jonathan D. Varat as Amicus Curiae 5.

															This radical interpretation of the First
Amendment is not supported by any precedent of this Court. The lies
covered by the Stolen Valor Act have no intrinsic value and thus
merit no First Amendment protection unless their prohibition would
chill other expression that falls within the Amendment’s scope. I
now turn to that question.

															B

															While we have repeatedly endorsed the
principle that false statements of fact do not merit First
Amendment protection for their own sake, we have recognized that it
is sometimes necessary to “exten[d] a measure of strategic
protection” to these statements in order to ensure sufficient
“ ‘breathing space’ ” for protected speech. Gertz ,
418 U. S., at 342 (quoting NAACP v. Button , 371 U.S.
415 , 433 (1963)). Thus, in order to prevent the chilling of
truthful speech on matters of public concern, we have held that
liability for the defamation of a public official or figure
requires proof that defamatory statements were made with knowledge
or reckless disregard of their falsity. See New York Times
Co. v. Sullivan , 376 U.S.
254 , 279–280 (1964) (civil liability); Garrison , 379
U. S., at 74–75 (criminal liability). This same requirement
applies when public officials and figures seek to recover for the
tort of intentional infliction of emotional distress. See Falwell , 485 U. S., at 55–56. And we have imposed
“[e]xacting proof requirements” in other contexts as well when
necessary to ensure that truthful speech is not chilled. Madigan , 538 U. S., at 620 (complainant in a fraud
action must show that the defendant made a knowingly false
statement of material fact with the intent to mislead the listener
and that he succeeded in doing so); see also BE&K
Constr. , 536 U. S., at 531 (regulation of baseless
lawsuits limited to those that are both “objectively baseless and subjectively motivated by an unlawful purpose”); Hartlage , 456 U. S., at 61 (sustaining as-applied First
Amendment challenge to law prohibiting certain “factual
misstatements in the course of political debate” where there had
been no showing that the disputed statement was made “other than in
good faith and without knowledge of its falsity, or . . .
with reckless disregard as to whether it was false or not”). All of
these proof requirements inevitably have the effect of bringing
some false factual statements within the protection of the First
Amendment, but this is justified in order to prevent the chilling
of other, valuable speech.

															These examples by no means exhaust the
circumstances in which false factual statements enjoy a degree of
instrumental constitutional protection. On the contrary, there are
broad areas in which any attempt by the state to penalize
purportedly false speech would present a grave and unacceptable
danger of suppressing truthful speech. Laws restricting false
statements about philosophy, religion, history, the social
sciences, the arts, and other matters of public concern would
present such a threat. The point is not that there is no such thing
as truth or falsity in these areas or that the truth is always
impossible to ascertain, but rather that it is perilous to permit
the state to be the arbiter of truth.

															Even where there is a wide scholarly consensus
concerning a particular matter, the truth is served by allowing
that consensus to be challenged without fear of reprisal. Today’s
accepted wisdom sometimes turns out to be mistaken. And in these
contexts, “[e]ven a false statement may be deemed to make a
valuable contribution to public debate, since it brings about ‘the
clearer perception and livelier impression of truth, produced by
its collision with error.’ ” Sullivan , supra , at
279, n. 19 (quoting J. Mill, On Liberty 15 (R. McCallum ed.
1947)).

															Allowing the state to proscribe false statements
in these areas also opens the door for the state to use its power
for political ends. Statements about history illustrate this point.
If some false statements about historical events may be banned, how
certain must it be that a statement is false before the ban may be
upheld? And who should make that calculation? While our cases
prohibiting viewpoint discrimination would fetter the state’s power
to some degree, see R. A. V. v. St. Paul , 505 U.S.
377 , 384–390 (1992) (explaining that the First Amendment does
not permit the government to engage in viewpoint discrimination
under the guise of regulating unprotected speech), the potential
for abuse of power in these areas is simply too great.

															In stark contrast to hypothetical laws
prohibiting false statements about history, science, and similar
matters, the Stolen Valor Act presents no risk at all that valuable
speech will be suppressed. The speech punished by the Act is not
only verifiably false and entirely lacking in intrinsic value, but
it also fails to serve any instrumen- tal purpose that the First
Amendment might protect. Tell- ingly, when asked at oral argument
what truthful speech the Stolen Valor Act might chill, even
respondent’s counsel conceded that the answer is none. Tr. of Oral
Arg. 36.

															C

															Neither of the two opinions endorsed by
Justices in the majority claims that the false statements covered
by the Stolen Valor Act possess either intrinsic or instrumental
value. Instead, those opinions appear to be based on the distinct
concern that the Act suffers from overbreadth. See ante, at
10 (plurality opinion) (the Act applies to “personal, whispered
conversations within a home”); ante, at 8 (Breyer, J.,
concurring in judgment) (the Act “applies in family, social, or
other private contexts” and in “political contexts”). But to strike
down a statute on the basis that it is overbroad, it is necessary
to show that the statute’s “overbreadth [is] substantial ,
not only in an absolute sense, but also relative to [its] plainly
legitimate sweep.” United States v. Williams , 553 U.S.
285 , 292 (2008); see also ibid. (noting that this
requirement has been “vigorously enforced”). The plurality and the
concurrence do not even attempt to make this showing.

															The plurality additionally worries that a
decision sustaining the Stolen Valor Act might prompt Congress and
the state legislatures to enact laws criminalizing lies about “an
endless list of subjects.” Ante, at 11. The plurality
apparently fears that we will see laws making it a crime to lie
about civilian awards such as college degrees or certificates of
achievement in the arts and sports.

															This concern is likely unfounded. With very good
reason, military honors have traditionally been regarded as quite
different from civilian awards. Nearly a century ago, Congress made
it a crime to wear a military medal without authorization; we have
no comparable tradition regarding such things as Super Bowl rings,
Oscars, or Phi Beta Kappa keys.

															In any event, if the plurality’s concern is not
entirely fanciful, it falls outside the purview of the First
Amendment. The problem that the plurality foresees—that legislative
bodies will enact unnecessary and overly intrusive criminal
laws—applies regardless of whether the laws in question involve
speech or nonexpressive conduct. If there is a problem with, let us
say, a law making it a criminal offense to falsely claim to have
been a high school valedictorian, the problem is not the
suppression of speech but the misuse of the criminal law, which
should be reserved for conduct that inflicts or threatens truly
serious societal harm. The objection to this hypothetical law would
be the same as the objection to a law making it a crime to eat
potato chips during the graduation ceremony at which the high
school valedictorian is recognized. The safeguard against such laws
is democracy, not the First Amendment. Not every foolish law is
unconstitutional.

															The Stolen Valor Act represents the judgment of
the people’s elected representatives that false statements about
military awards are very different from false statements about
civilian awards. Certainly this is true with respect to the high
honor that respondent misappropri- ated. Respondent claimed that he
was awarded the Medal of Honor in 1987 for bravery during the Iran
hostage crisis. This singular award, however, is bestowed only on
those members of the Armed Forces who “distinguis[h] [themselves]
conspicuously by gallantry and intrepidity at the risk of [their
lives] above and beyond the call of duty.” 10 U. S. C.
§3741; see also §§6241, 8741. More than half of the heroic
individuals to have been awarded the Medal of Honor after World War
I received it posthumously.[ 15 ] Congress was entitled to conclude that falsely
claiming to have won the Medal of Honor is qualitatively different
from even the most prestigious civilian awards and that the
misappropriation of that honor warrants criminal sanction.

															*  *  *

															The Stolen Valor Act is a narrow law enacted
to address an important problem, and it presents no threat to
freedom of expression. I would sustain the constitutionality of the
Act, and I therefore respectfully dissent. Notes 1 Although the Act does not
use the term “knowing” or “knowingly,” we have explained that
criminal statutes must be construed “in light of the background
rules of the common law . . . in which the requirement of
some mens rea for a crime is firmly embedded.” Staples v. United States , 511
U.S. 600 , 605 (1994). The Act’s use of the phrase “falsely
represents,” moreover, connotes a knowledge requirement. See
Black’s Law Dictionary 1022 (8th ed. 2004) (defining a
“misrepresentation” or “false representation” to mean “[t]he act of
making a false or misleading assertion about something, usu. with
the intent to deceive ” (emphasis added)). 2 See Black’s Law
Dictionary, supra , at 1327 (defining “representation” to
mean a “presentation of fact”); see also Milkovich v. Lorain Journal Co. , 497 U.S.
1 , 20 (1990) (explaining that the Court has protected
“statements that cannot ‘reasonably [be] interpreted as stating
actual facts’ about an individual” so that “public debate will not
suffer for lack of ‘imaginative expression’ or the ‘rhetorical
hyperbole’ which has traditionally added much to the discourse of
our Nation” (quoting Hustler Magazine, Inc. v. Falwell , 485 U.S.
46 , 50 (1988); alteration in original)). 3 Colimore, Pinning Crime
on Fake Heroes: N. J. Agent Helps Expose and Convict Those
with Bogus U. S. Medals, Philadelphia Inquirer, Feb. 11, 2004,
http://articles.philly.com/2004-02-11/news/25374213_1_medals-military-imposters-distinguished-flying-cross
(all Internet mate-rials as visited June 25, 2012, and available in
Clerk of Court’s casefile). 4 Crewdson, Claims of
Medals Amount to Stolen Valor, Chicago Tribune, Oct. 26, 2008,
http://www.chicagotribune.com/news/local/chi-valor-oct25,0,4301227.story?page=1. 5 Half of MOH Entries in
Oral History Project Are Incorrect, Marine Corps Times, Oct. 1,
2007, 2007 WLNR 27917486. 6 Ibid. 7 Young, His Honor Didn’t
Get Medal of Honor, Chicago Tribune, Oct. 21, 1994,
http://articles.chicagotribune.com/1994-10-21/news/941021031
8_1_congressional-medal-highest-fritz. 8 Rutenberg, At Fox News,
the Colonel Who Wasn’t, N. Y. Times, Apr. 29, 2002,
http://www.nytimes.com/2002/04/29/business/at-fox-news-the-colonel-who-wasn-t.html?pagewanted=all&src=pm. 9 B. Burkett & G.
Whitley, Stolen Valor: How the Vietnam Generation Was Robbed of Its
Heroes and Its History 179 (1998). 10 Indeed, the first person to be
prosecuted under the Stolen ValorAct apparently “parlayed his
medals into lucrative security consulting contracts.” Zambito, War
Crime: FBI Targets Fake Heroes, New York Daily News, May 6, 2007,
http://www.nydailynews.com/news/crime/war-crime-fbi-targets-fake-heroes-article-1.249168. 11 Dept.
of Justice, Northwest Crackdown on Fake Veterans in “Operation
Stolen Valor,” Sept. 21, 2007, http://www.justice.gov/usao/waw/
press/2007/sep/operationstolenvalor.html. 12 Cato,
High Court Tussles With False Heroics: Free Speech or Fel-ony?
Pittsburg Tribune Review, Feb. 23, 2012, http://triblive.com/
usworld/nation/1034434-85/court-military-law-false-medals-supreme-valor-act-federal-free. 13 In
addition, since the Department may not disclose the Social Security
numbers or birthdates of recipients, this database would be of
limited use in ascertaining the veracity of a claim involving a
person with a common name. Office of Undersecretary of Defense,
Report, at 3–4. 14 The
plurality rejects this rule. Although we have made clear that
“[u]ntruthful speech . . . has never been protected for
its own sake,” Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc. , 425 U.S.
748 , 771 (1976), the most the plurality is willing to concede
is that “the falsity of speech bears upon whether it is protected,” ante, at 9. This represents a dramatic—and entirely
unjustified—departure from the sound approach taken in past cases.
Respondent and his supporting amici attempt to limit this
rule to certain subsets of false statements, see, e.g., Brief for Respondent 53 (asserting that, at most, only falsity that
is proved to cause specific harm is stripped of its First Amendment
protection), but the examples described above belie that attempt.
These examples show that the rule at least applies to (1) specific
types of false statements that were neither illegal nor tortious in
1791 (the torts of intentional infliction of emotional distress and
false-light invasion of privacy did not exist when the First
Amendment was adopted); (2) false speech that does not cause
pecuniary harm (the harm remedied by the torts of defamation,
intentional infliction of emotional distress, and false-light
invasion of privacy is often nonpecuniary in nature, as is the harm
inflicted by statements that are illegal under §§912 and 1001); (3)
false speech that does not cause detrimental reliance (neither
perjury laws nor many of the federal false statement statutes
require that anyone actually rely on the false statement); (4)
particular false statements that are not shown in court to have
caused specific harm (damages can be presumed in defamation actions
involving knowing or reckless falsehoods, and no showing of
specific harm is required in prosecutions under many of the federal
false statement statutes); and (5) false speech that does not cause
harm to a specific individual (the purpose of many of the federal
false statement statutes is to protect government
processes). 15 See
U. S. Army Center of Military History, Medal of Honor
Statistics,
http://www.history.army.mil/html/moh/mohstats.html.