 Justice Stephen Breyer , joined by Justice Elena Kagan , agreed that the Stolen Valor Act was unconstitutional , but on entirely different grounds . Breyer based his finding not on a strict scrutiny test that the plurality had used , but on a " proportionality " or " intermediate scrutiny test " . This test examines " whether the statute works speech @-@ related harm that is out of proportion to its justifications . " After holding that Congress could create a database of those who had won the Medal , among other alternatives to the existing law , Breyer said that there were lesser restrictive means to achieve the government 's interest . 
