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2011-2012 Supreme Court Term: The Respondent's Attack on the Stolen Valor Act at Oral Argument in United States v. Alvarez

by Professor Will Huhn on February 27, 2012

in Constitutional Law,Freedom of Speech,Wilson Huhn

Yesterday's post described the government's presentation at oral argument in United States v. Alvarez, where the Solicitor General defended the constitutionality of the Stolen Valor Act.  Today's post summarizes the respondent's argument.  Here is a link to the transcript of the oral argument.

Jonathan D. Libby argued on behalf of the defendant Alvarez, who was convicted of violating the Stolen Valor Act because he had falsely claimed to have won the Congressional Medal of Honor.  Libby began vigorously:

The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie.

Chief Justice Roberts asked whether there is any First Amendment value in a lie, and Libby responded that there are two reasons we allow people to lie: "personal autonomy" and "the fact that people tell lies allows us to appreciate the truth better."  Justice Alito pressed Libby on this point:

JUSTICE ALITO: Do you really think that there is — that the First Amendment — that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona? Gee, I won the Medal of Honor. I was a Rhodes scholar, I won the Nobel Prize. There's a personal -the First Amendment protects that?

MR. LIBBY: Yes, Your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function.

Justice Breyer then entered the conversation in support of the constitutional value of lying, generating a colloquy with Chief Justice Roberts:

JUSTICE BREYER: Obvious example. Are there Jews hiding in the cellar? No.  …

CHIEF JUSTICE ROBERTS: That's not a statement about one's self.

JUSTICE BREYER: Are you [italics mine] hiding Jews in the cellar?

CHIEF JUSTICE ROBERTS: Excuse me. Sorry. (Laughter.)

Justice Scalia drew an analogy between the Stolen Valor Act and laws that prohibit lying to a federal agent in the course of an investigation.  Libby, course, distinguished that law on the ground that the harm of impeding an investigation is different from the harm that may result from lying about having earned a military medal or decoration.  Scalia then asked whether the Court should defer to Congress in deciding whether the speech would result in harm.  At this point my response to Justice Scalia would have been "Well, you didn't defer to Congress when it passed a law prohibiting the sale of recordings of cruelty to animals, did you?" but then I tend to forget to be polite when I get worked up.  Attorney Libby started to answer but was interrupted by Justice Kennedy, who asked Libby a "slippery slope" question:

JUSTICE KENNEDY: Let me ask you this: What do you do with the statute that prohibits the wearing of a medal that has not been earned?

Libby responded with the obvious answer, that wearing medals is conduct not speech, but Kennedy gave the equally obvious response, that wearing medals may be "expressive conduct" like wearing an armband or flying a flag, and receives just as much constitutional protection as speech does.  This is a difficult point for Libby because most people would consider it to be a crime to wear a military medal or decoration that has not been earned.  In the end, Libby had to admit that under his reasoning the law prohibiting the wearing of unearned medals might be unconstitutional as well.

Justice Kagan then asked Libby whether this law chills any truthful speech.  Libby appeared to concede that  the law did not have any "chilling effect" on truthful statements.  Kagan responded, "that's a big concession."   Libby then based his entire case upon the proposition that as a general rule, "false statements" are protected by the constitution unless they fall into a category such as fraud, perjury, lying to an investigator, etc.:

All speech is presumptively protected unless we go back and it fits into one of the historical categories of speech that this Court has found historically is unprotected.

Justice Sotomayor asked Libby to distinguish the Stolen Valor Act from laws punishing the intentional infliction of emotional distress.  Libby said that he was outraged when people falsely claim to have military honors, but that this was not the same as intentionally harming individuals:

Certainly people are entitled to be upset by these false claims. I mean, I'm personally upset by these false claims. But the fact that there is a certain level of upset doesn't mean that you're harmed in the sense of, of the intentional infliction of emotional stress tort, and so what we're dealing with here is simply a non-instantaneous harm.

He added later that IIED claims involve speech that is targeted at individuals and that cause immediate harm.

Mr. Libby made good use of questions asked by the justices to make the point that the Stolen Valor Act goes too far in punishing speech – that there were other means that the government could use to discourage this kind of conduct.  In response to a question from Justice Scalia, Mr. Libby suggested that the government could publicize the fact that a person had lied about having earned military honors.  And in response to a question from Justice Ginsburg, Libby stated that the law could punish people who lie about military honors to obtain something of value.  Justice Kennedy objected that Mr. Libby was arguing that the government could punish this behavior if it causes financial loss but not because of the outrage to our troops.  Justice Scalia picked up on this point:

JUSTICE SCALIA: So a thing of value, it has to be something of commercial value, right? Just to obtain praise and the higher esteem of your fellow citizens, that's — that's not enough.

MR. LIBBY: Well, Your Honor …

JUSTICE SCALIA: You have to get a penny out of it, right?

Libby responded that it could be "anything of a non de minimus value."  Roberts asked whether the desire to gain political office would constitute something of value.  It is, of course – but I think the answer is that  would raise the specter of  the government regulating what people say during political campaigns.

Justice Alito asked whether people could be prosecuted for lying while dating:

JUSTICE ALITO: Suppose what the person gets is — is a date with a potential rich spouse. Would that be enough?

MR. LIBBY: Your Honor, I think when it comes — when you get into the situation where you're getting something like a date, I do not know that — I certainly wouldn't consider that a non de minimis thing of value, but …

JUSTICE ALITO: Some people might have a different opinion.

(Laughter.)

Justice Kennedy's last question drew a distinction between the Stolen Valor Act and laws prohibiting impersonation.  Impersonation statutes contain an element requiring that the defendant performed "an overt act that asserts authority that the impersonator claims to have."  He asked Libby whether that requirement was enough so that the law did not punish pure speech.

Libby closed with two points: that our starting point under the First Amendment is that "we have the right to say pretty much what we want to say," and that under the Court's decision in Stevens speech is protected unless it falls into a "historically unprotected" category of speech.

Based upon their questions and comments during oral argument, it appears that a majority of the justices are leaning against the constitutionality of the Stolen Valor Act.  Their decision will be handed down before the end of June.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

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