President Trump’s claims of fraud in the 2020 election constitute First Amendment-protected speech. The decision in United States v Alvarez, 567 US 709 (2012), reflects the Supreme Court’s unanimous consensus that the government may not criminalize supposedly ‘false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern.’ Id at 751-52 (Alito, J, dissenting)(emphasis added)… In these areas, ‘it is perilous to permit the state to be the arbiter of truth,’ for ‘the potential for abuse of power in these areas is simply too great.’ Id at 752 (Alito, J, dissenting). ‘In the political arena,’ when disputes arise about politically charged topics – which typically involve claims that are not ‘easily verifiable’-the threat of ‘criminal prosecution is particularly dangerous… and consequently can more easily result in censorship of speakers and their ideas.’ Id. at 734, 738 (Breyer, J, concurring in the judgment). ‘Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.’ Id at 723 (plurality op of Kennedy, J) (citing GEORGE ORWELL, NINETEEN EIGHTY–FOUR (1949).

The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved, 18 USC 704 (b),(c). After pleading guilty to falsely claiming that he had received the Medal of Honor, Alvarez challenged the Act as unconstitutional. The Ninth Circuit held that the Act is invalid under the First Amendment. The Supreme Court affirmed. Characterizing the law as a content-based restriction on protected speech, the Court applied the “most exacting scrutiny.” Falsity alone does not take speech outside the First Amendment. While the government’s interest in protecting the integrity of the Medal of Honor is beyond question, the First Amendment requires a direct causal link between the restriction imposed and the injury to be prevented; that link was not established. The government had no evidence that the public’s general perception of military awards is diluted by false claims or that counter-speech, such as the ridicule Alvarez received online and in the press, would not suffice to achieve its interest. The law does not represent the “least restrictive means among available, effective alternatives.” The government could likely protect the integrity of the military awards system by creating a database of Medal winners accessible and searchable. Dissenting Justices Alito, Scalia, and Thomas viewed the Act as significantly limited and necessary to the important governmental objective.