To sufficiently protect free expression, we always must err on the side of overprotecting free expression than underprotecting it, even with such socially unhelpful expression as that of Xavier Alvarez. Alvarez was not satisfied enough with having become a regional water board member. Instead, at his first public meeting, Alvarez completely lied when professing, on tape: "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." U.S. v. Alvarez, ___ U.S. ___ (June 28 2012).

Alvarez was eclipsed yesterday by Obama’s monumental (for him) victory in keeping his health care plan mostly intact before the Supreme Court after the court’s unusual step of allowing arguments in the case to take multiple days, far exceeding the usual hour allowed for Supreme Court oral argument. Alvarez, nevertheless, is very important, for overturning Alvarez’s conviction based on a 6-3 determination that the statute forbidding false claims of military decorations violates the First Amendment; for showing that Justice Kagan is no First Amendment prize, because she joined Justice Breyer in saying the statute can be fixed by being narrowed to criminalize real harm (for instance, I suppose, obtaining a job by lying about one’s military decorations); and for showing twice in one day Chief Justice Roberts’s willingness to break ranks with the court’s remaining three most conservative justices.

Applying exacting scrutiny to the content-based Stolen Valor Act, the four-justice plurality led by Justice Kennedy proclaims:

"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."

Unfortunately, the exacting scrutiny standard only garnered four of nine Supreme Court justice votes, so that standard will not carry the day for such statutes. Instead, intermediate scrutiny will apply, as enunciated by the two-justice concurring opinion of Justice Breyer joined by Justice Kagan, seeing that their two votes plus the dissenting three votes make for a majority of five justices out of nine.

The crux of Justice Breyer’s concurring opinion follows:

"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."

Alvarez (Breyer, J., concurring).

Justice Breyer long ago established himself as protector of broad government regulation, and his concurring opinion comes as no surprise. Justice Kagan, the Court’s newest member whose First Amendment side I warned about last year during her Supreme Court confirmation process, has shown herself in Alvarez to be an insufficient protector of free expression.

A president Romney will pick worse civil liberties protectors than Obama has and will continue to do if re-elected. Beware and be warned. Justice Ginsburg and Justice Kennedy are advancing in age. I anticipate at least two Supreme Court vacancies to fill in the next presidential administration, on top of the scores of federal appellate and trial court seats to fill. Meanwhile, three of the court’s most conservative jutices are likely to stay around for at least two more decades, and I anticipate that Justice Scalia wants to stay much longer, and will prefer not to resign when a Democrat is in the White House to fll any such vacancy.

By joining the Alvarez plurality, Justice Roberts makes clear that he will not be a knee-jerk joiner with the court’s remaining most conservative justices (Scalia, Thomas and Alito), all of whom dissented. Justice Ginsburg was the most likely to be in the Alvarez plurality, which she was. Justice Sotomayor, the second newest justice, joined. Justice Kennedy, often a swing vote among the remaining eight justices, came through for the First Amendment as the author of the plurality opinion.