The Stolen Valor Act in the Supreme Court

Washington Post:

The Supreme Court jousted for an hour Wednesday about whether the First Amendment allows the government to prosecute people for lying about earning military honors, and, if so, what else might be fair game. 

Lying about whether your child received a medal? wondered Justice Samuel A. Alito Jr.
Holocaust deniers? asked Justice Ruth Bader Ginsburg. 

People who lie about extramarital affairs? offered Justice Elena Kagan. 

Justice Sonia Sotomayor tried out a personal example: “I take offense when someone I’m dating makes a claim that’s not true.” 

At the end of the arguments in U.S. v. Alvarez , it was unclear how many of what Solicitor General Donald V. Verrilli Jr. called the court’s “slippery slope” questions were in the form of genuine concern or simply playing devil’s advocate. 

The questions raise difficult issues, Verrilli conceded, but should not keep the court from upholding the Stolen Valor Act, which makes lying about receiving some of the nation’s highest military awards and decorations a crime, punishable in some cases by incarceration. 

The statute is “about as narrow as you can get,” Verrilli said, and targets with “pinpoint accuracy” only “calculated factual falsehoods.” And the government since the days of George Washington has shown an interest in promoting valor and bravery in its military and keeping “charlatans” from usurping that glory. 

It seemed from the general tenor of the arguments that the justices were looking for ways to agree with Verrilli that the exception to the First Amendment’s speech protections was narrow.
He seemed to have one sure supporter in Justice Antonin Scalia, whose comments were uniformly protective of the government’s interests. 

“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished” by those who falsely claimed them, Scalia said.
And Verrilli had one clear skeptic in Sotomayor. 

“I thought the core of the First Amendment was to protect even against offensive speech,” she said. “You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming that they got one.” 

But the rest of the court seemed more conflicted. Chief Justice John G. Roberts Jr., for instance, asked Verrilli if the government could criminalize lying about whether one received a high school diploma.

... 

The questions tend to trivialize the problem.  I suspect that is because none of the current justices are military veterans.

Usually those who violate the act do so to perpetrate a fraud on the public.  It is not really intended to stop some creep from claiming the Medal of Honor to impress someone at a bar.  But someone seeking public office who claims the medal is trying to win election based on awards he did not receive.

Sotomayor fails to distinguish between offensive speech and fraudulent speech.  Is she going to say that SEC Regulation 10B-5 should not be enforced?