The principal doctrinal division in this case is whether "false statements of fact" are a "historically unprotected category of speech. Â The principal practical division arises from the attempt to identify the "harm" that the government is seeking to prevent by prohibiting people from lying about earning military honors. Â Oral argumentÂ exposed those divisions. Â Today I describe the first half of oral argument, the government's defense of the Stolen Valor Act.
If "false statements of fact" are a historically unprotected category of speech, then the government has broad power to punish any speech that falls within that category. Â If as a general rule false statements are not historically unprotected, then strict scrutiny applies, and the government has the burden of proving that it has a compelling reason to punish people who falsely claim to have won a medal or earned other military honors, and that there is no other feasible way of accomplishing the same purpose.
Furthermore, whether or not strict scrutiny applies, the "harm" that the government is seeking to prevent matters. Â If the government can point to some concrete harm that these false statements cause, that may provide a legitimate reason to punish the speech. Â However, if the only harm that is caused by these lies is that other people are offended or outraged, that is not enough; that would make this a "viewpoint-based" law, which is automatically unconstitutional.
The divisions on the Court over these issues were apparent at oral argument. Â Here is the link to theÂ transcript of oral argument. Â The first meaningful exchange was between Solicitor General Donald B. Verrilli and Justice Kennedy:
GENERAL VERRILLI: This Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no FirstÂ Amendment value for its own sake.
JUSTICE KENNEDY: Well, I'm — I'm not sure that that's quite correct. It has said it often, but always in context where it is well understood that speech can injure. Defamation, Gertz. At page 12 of your brief, you make this point, and it's what Justice Sotomayor is indicating. You think there's no value to falsity.
But I — I simply can't find that in our cases, and I — I think it's a sweeping proposition to say that there's no value to falsity. Falsity is a way in which we contrast what is false and what is true.
Solicitor General Verrilli then adopted a more modest position. Â He argued that so long as a statute gives adequate "breathing space" to freedom of speech, that the law may punish false statements. Â He contended that because this law is directed against "a very narrowly drawn and specific category of calculated factual falsehood," that it met this test – that the law does not unduly infringe on freedom of speech. Â He wasn't conceding that strict scrutiny applied, but he was arguing that it was "narrowly tailored," which is the "means" test for intermediate heightened scrutiny. Â He later added that this law serves a "substantial interest," which is the "ends" prong of intermediate scrutiny. Â He never did explain why intermediate scrutiny would be the applicable standard of review.
Justice Ginsburg asked whether the law could be extended to cover people who lie about having served in the military (Mr. Alvarez falsely claimed to have been a Marine, as well as lying about receiving the Congressional Medal of Honor). Â General Verrilli conceded that would be a more difficult case, but Justice Scalia interrupted to say that such a law would be just as constitutional because it was "falsehood conjoined with harm, just as libel is." Â Scalia added:
So — and in the example that Justice Ginsburg just gave, in your case there's harm to those courageous men and women who receive the decorations. In the — in the example that Justice Ginsburg gave, there's harm to the people whoÂ honorably served in the armed forces.
Chief Justice Roberts sounded skeptical that the law could punish false statements about oneself:
Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't.
Verrilli noted that some states do have laws that prohibit lying about having earned a degree, but Roberts responded "that's for submitting resumes … that's fraud." Â Verrilli conceded "It is true that the harm here is different."
Kennedy reiterated that the Court had never held that "false statements of fact" in general are an unprotected category of speech, but then he suggested that the government might identify a different type of harm; a proprietary interest in military honors:
Here it does seem to me that you can argue that this is something like a — a trademark, a medal in which the government and the armed forces have a particular interest, and we could carve out a narrow exception for that. I think we would have to do that.
Later, Kennedy returned to this point and called the trademark analogy the government's strongest argument. Â Sotomayor responded to this "trademark analogy" by noting that in other cases where this type of falsehood is punished it involves a pecuniary loss, a taking of a valuable property right. Â She asked "What's the harm here that fits within that descriptor?"
Instead of answering the question, Verrilli offered more analogies. Â He compared the Stolen Valor Act to federal laws such as "the impersonating a Federal officer statute, … the false statement statute [and] perjury statutes." Â Sotomayor's response:
Not really. They are intended to protect the right of the government to secure truthful information.
Justice Alito then posed an interesting question. Â He first pinned Verrilli dowm, and then skewered him:
JUSTICEÂ ALITO: Is your argument limited to statements that a person makes about himself or herself?
GENERAL VERRILLI: Yes. It is. …
JUSTICE ALITO: What's the principal reason for drawing the line there? Suppose the statute also made it a crime to represent falsely that someone else was the recipient of a military medal, so that if someone said falsely and knowingly that a spouse or a parent or a child was a medal recipient, that would also be covered?
This would be the "grandfather rule" – what if someone falsely claims that his or her grandfather won the Medal of Honor? Â Could that be made a crime? Â General Verrilli started to concede that this law, too, would probably be unconstitutional, when Justice Scalia again intervened to defend the Stolen Valor Act:
JUSTICEÂ SCALIA: I don't see any difference as far as that risk goes. I — I hope that in your earlier colloquy with Justice Kennedy, you — you were not retreating from what our cases have repeatedly said, that there is no First Amendment value in falsehood.
Justice Scalia was trying mightily to help, but he was doing so by asserting a general principle that is very difficult to maintain. Â I ask you, do these pants make me look fat? Â Be careful – under Justice Scalia's understanding of the First Amendment the polite answer to this question might land you in federal prison. Â Of course, in my opinion you should be severely punished if you answered that question truthfully!
Justice Kagan asked about the constitutionality of state laws that make it a crime for a political candidate to misrepresent himself in seeking public office. Â Once again Verrilli admitted that those laws might be unconstitutional because of the "chilling effect" on the political process.
Justice Scalia then asked what he thought was a helping question to distinguish "political puffing" from the conduct punished by the Stolen Valor Act:
I suppose that even in the commercial context we allow a decent amount of lying, don't we? It's called puffing. …Â So maybe we allow a certain amount of puffing in political speech as well. Â …Â Nobody believes all that stuff, right?
Justice Sotomayor suggested that Congress could have narrowed this law by making it a crime to falsely claim to have earned military honorsÂ for profit. Â In other words, Congress should have enacted this as a fraud statute. Â The government would have to prove that someone lied in order to gain something of value. Â And then Sotomayor went to the heart of the "harm" issue – that certain types of harms like offense, anger, or outrage do not count as constitutional harms – that the government may not punish speech merely because it does not like it. Â She said:
What I'm trying to get to is, what harm are we protecting here? I thought that the core of the First Amendment was to protect even … offensive speech. We have a legion of cases that said your emotional reaction to offensive speech is not enough. If that is the core of our First Amendment, what I hear, and that's what I think the court below said, is you can't really believe that a war veteran thinks less of the medal that he or she receives because someone's claiming fraudulently that they got one. They don't think less of the medal. We're reacting to the fact that we're offended by the thought that someone'sÂ claiming an honor they didn't receive. Â So outside of the emotional reaction, where's the harm? And I'm not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I'm dating makes a claim that's not true.
General Verrilli asserted that the government had the right to defend the honor of those who actually earned these awards:
GENERAL VERRILLI: Â And what I think with respect to the government's interest here and why there is a harm to that interest is that the point of these medals is that it's a big deal. You get one for doing something very important after a lot of scrutiny. And for the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers. It does do that. That is the government's interest. We think that is a real and substantial interest, and it's threatened here -
JUSTICEÂ SOTOMAYOR: But the reality here is that this gentleman [Alvarez] was publicized, deriled for what he did. His public position was compromised, as is the case with almost everyone who's caught at lying.
GENERAL VERRILLI: But, given that this is a category of calculated factual falsehood, we think the government has the authority and the constitutional -andÂ the constitutional space to try to deter this kind of speech …
In tomorrow's post I will describe what occurred during the oral argument when the attorney for Mr. Alvarez attacked the constitutionality of the Stolen Valor Act.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.