On February 22, the Supreme Court heard oral arguments in United States v. Alvarez, a case testing the limits of the government’s ability to protect its putative interests from the damaging effects of private speech—and another opportunity for the Court to affirm its opposition to carving out new categorical exceptions from First Amendment protection.

The case’s path to the Supreme Court began in California with an ill-advised lie by a member of a municipal water board. Xavier Alvarez, a newly-elected board member, arose at a meeting in 2007 and prefaced his remarks by claiming that he was a “Medal of Honor winner.” An skeptical audience member, upon discovering that Alvarez had never even served in the military—let alone received the military’s highest honor—forwarded a transcript of the meeting to the FBI, who arrested Alvarez.

Alvarez was prosecuted for violating the Stolen Valor Act of 2005, which provides that:

“Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States… shall be fined under this title, imprisoned not more than six months, or both.”

There is no doubt that Alvarez was guilty under the Act’s terms, but he challenged the Act on the grounds that it facially violates the First Amendment. He claimed that the act was substantially overbroad, sweeping in otherwise-protected political speech; the Ninth Circuit agreed.

As argued before the Supreme Court, the case presents two questions, both of which have substantial bearing on the evolving contours of the Court’s First Amendment jurisprudence. First, does the Act regulate a type of speech categorically unprotected by the First Amendment? Second—assuming the First Amendment does apply to lies about military records—has the government met its burden of showing that this regulation is necessary to fulfill a compelling national interest?

With regard to the first issue, the Court at oral arguments seemed to find itself pinned awkwardly between past dicta and its contemporary commitment to rigorously policing the boundaries of unprotected speech. On one hand—as the government pointed out repeatedly—the Supreme Court in Gertz v. Robert Welch (1974) asserted that “there is no constitutional value in false statements of fact.” If bald-faced lies are always unprotected, then a statute aimed only at lies implicates no constitutional concerns.

Weighing strongly on the other side, however, is the starting presumption that all speech receives First Amendment protection—and the corollary that only those types of speech which fall into a discrete unprotected category escape strict scrutiny. In recent years, the Court has emphasized that the unprotected categories constitute a closed group, with any attempt to extend their bounds strongly disfavored. In Stevens v. United States (2010), the Court found that depictions of animal cruelty—though shameful and almost certainly devoid of any societal value—are nonetheless not categorically unprotected. Justice Roberts explained the Court’s rationale for holding as it did:

“Since its enactment, the First Amendment has permitted restrictions on a few historic categories of speech—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—that “have never been thought to raise any Constitutional problem…. Depictions of animal cruelty should not be added to that list. While the prohibition of animal cruelty has a long history in American law, there is no evidence of a similar tradition prohibiting depictions of such cruelty…. [T]he First Amendment’s free speech guarantee does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits.”

The Court used similar language in Snyder v. Phelps (2011) to buttress its holding that the First Amendment protected offensive funeral protests from state tort actions.  Although couched in historical terms, the Court’s doctrine embodies the notion that speech—which carries such high value both as a means of pointing to the truth and as a constitutive element of personal autonomy—must be given “breathing room.” Courts should be wary of any new restrictions on speech, even “worthless” speech, if the restriction will chill too much autonomy or leave too little potential breathing room for truth.

As the Ninth Circuit held and as several members of the Supreme Court noted at oral argument, the government’s assertion that “lies” do not implicate the First Amendment is not consistent with the Court’s historically exclusive approach; moreover, creating a new free speech carve-out for lies would represent an unacceptable intrusion into First Amendment autonomy values. First, the government relied on an over-simplification when it argued that “lies” are unprotected under the Court’s precedent. Gertz, the case most often relied upon for this proposition, did make a sweeping statement about the constitutional valuelessness of lies, but it did so firmly within the context of libel doctrine. Indeed, shortly after making that pronouncement, the Court went on to say: “[a]lthough the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate… [T]he First Amendment requires that we protect some falsehood in order to protect speech that matters.” The reason that libel and defamation are historically outside the protection of the First Amendment is that such speech reflects malice and causes identifiable harm to discrete classes of individuals.

As both Justice Kennedy and Justice Scalia noted in the arguments for Alvarez, the Court’s precedents support the exclusion of two categories of lies from First Amendment protection: (1) those lies which constitute slander, libel, defamation, or “fighting words,” and (2) those which impair the functioning of a government function – hence the constitutionality of statutes banning lying under oath or lying to a federal officer. Although it is possible that lies about military medals could constitute defamation or libel in some cases, it is reasonably clear that Xavier Alvarez’s lies did not; to the extent his claims were motivated by anything other than mental illness, it was self-aggrandizement, and no “victim” of his speech would have had a traditional tort cause of action against him. The Stolen Valor Act, then, is substantially overbroad to be defended as a defamation statute. Moreover—Justice Scalia’s view notwithstanding—it is difficult to fit the Act within the category of laws banning lies in order to protect a government function; the limited number of previous laws within this category have safeguarded the vitality of a sensitive executive or judicial process such as the criminal justice system. Though awarding medals may be a government “function,” the analogy is ill-fitting.

Perhaps most importantly to the Justices, recognizing the government’s proposed categorization presents a serious line-drawing problem—one that, if it is not resolved in a principled way, could enable in theory government regulation of far more intimate and personal “lies.” As Chief Justice Roberts noted, the government’s logic would seem to permit a law banning lies on one’s resume – to promote the government’s interest in preventing employment fraud. As Justice Sotomayor noted even more pointedly, the same principle might justify banning lies to one’s spouse about extramarital affairs, or lies to one’s sex partner about virginity or venereal diseases – to promote the government’s interest in public health or marital stability. The litany of government interests is too long, and the number of lies told by American citizens is too great, to justify the assertion that the First Amendment stops at the boundary of falsehood.

If, as seems likely, the Court rejects the government’s categorical argument, the Stolen Valor Act must survive the strict scrutiny the Court applies to content-based restrictions on speech. Here, at the very least, the government has a stronger case: it need not defend itself against slippery slope or line-drawing challenges, but only show that this particular act is narrowly tailored to meet a compelling government interest.

The government’s uncontroverted interest lies in protecting the integrity of the military honors system. In arguing Alvarez before the court, the Solicitor General asserted that the Act furthers this interest in two related ways: it prevents the “misappropriation” of government-conferred honor and esteem from those who rightfully earned it, and it protects the value of the honors as a general matter. Although admittedly private causes of action can vindicate the rights of anyone harmed by literal misappropriation of their rightful honors, the government claims the right through the Act to provide greatly augmented deterrence against such behavior.

The first question the Justices raised in their inquiry is whether the Act materially vindicates the interests of individual honorees at all. As amply demonstrated by the facts of Xavier Alvarez’s case, such a lie about military medals most often discredits not the medals or the armed forces, but the liar himself. Justice Sotomayor, for one, questioned whether either the medals or honorees would lose any public esteem at all from such lies; further, she questioned whether the “offense” that a listener or a legitimate medal-of-honor recipient would take upon hearing someone else lie constitutes a sufficient harm. As she noted, she and many of us take offense at lies by boyfriends or girlfriends, but that offense has never been thought sufficient to create a legal cause of action.  Perhaps more to the point, the Ninth Circuit argued that the statute simply did not touch on the deeper significance of military honors to their recipients. “Suggesting ‘that the battlefield heroism of our servicemen and women is motivated in any way . . . by considerations of whether a medal may be awarded simply defies . . . comprehension,’ and is ‘unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor.’”

The second problem with the Act under First Amendment scrutiny is its likely failure of tailoring—a problem linked with its failure to squarely address the government’s asserted interests. The government asserts that it has already narrowed the focus of the statute sufficiently by announcing that it will prosecute lies about military medals offered as fact—not satire or parody. As Justices Ginsburg, Breyer, Kennedy, and Sotomayor variously noted, however, there seem to be more focused available way to address the issue of military honors falsification. For one thing, honorees who have suffered injury to their reputation may utilize the existing tort doctrines. Of course, as the government pointed out, such a piecemeal solution leaves a collective action problem, and may fall short of the goal of deterrence. Nonetheless, a more narrowly crafted statute could have isolated the most egregious type of abuse – falsification for commercial gain. Such a solution would touch only on commercial speech, a category which merits less stringent protection; moreover, as Justice Kennedy noted in oral arguments, some precedent exists upholding the constitutionality of broadly similar legislation. In San Francisco Arts and Athletics v. United States Olympic Committee (1987), the Court found that a statute protecting the US Olympic committee from unauthorized use of the term “Olympics”, though it went beyond normal trademark protections, did not constitute a First Amendment violation because it fell only on commercial speech, which receives a lesser degree of First Amendment protection. Since the statute was directed at injurious commercial conduct, the relevant first amendment test there, taken from O’Brien, was whether the incidental burden on speech was greater than necessary to serve a substantial government interest.

It is not clear how the Court will come down on the question of whether the Stolen Valor Act satisfies First Amendment scrutiny. In light of the great deference traditionally shown by the Court – and evinced by several Justices in this case – towards the government in military matters, it may well be that the Court overlooks the troubling free-speech consequences of the Act’s overbreadth. In an area of its jurisprudence where it has shown willingness in recent years to give the First Amendment significant teeth, however, the Court would do well to subject the Stolen Valor Act to the full scrutiny it deserves under established doctrine despite the Act’s largely uncontroversial motives.

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