The justices engaged in spirited debate this morning over the constitutionality of a 2006 law aimed at curbing false claims about military honors.

Some justices hearing U.S. v. Alvarez said they worried that upholding the Stolen Valor Act could lead to laws that might make it illegal to lie about an extramarital affair or a college degree.

But others indicated that the law is narrowly drawn to try to prevent people from demeaning the system of military honors that was established by Gen. George Washington in 1782.

Also see: Stolen Valor Act case: a checklist of things to watch

The Adult Entertainment Facility Tax Act, introduced Feb. 7 by state Sen. Toi W. Hutchinson, provides that a “tax is imposed upon each operator who operates a live adult entertainment facility in this State that serves or permits the consumption of alcohol on its premises. The amount of this tax under this Act is an amount equal to $5 for each entry by each customer admitted into the live adult entertainment facility.”

The adult businesses presumably would pass that cost on to their patrons.

The justification for the measure is the secondary-effects doctrine, a tool first used by the U.S. Supreme Court in Young v. American Mini Theatres (1976), which involved the zoning of adult businesses in Detroit. The secondary-effects doctrine holds that adult businesses cause harmful, secondary effects such as increased crime and decreased property values. The Supreme Court has said that when government officials properly rely on the secondary-effects doctrine, they are not suppressing speech but addressing these adverse effects.

The findings in the Illinois bill say that “the consumption of alcoholic beverages on the premises of sexually oriented businesses exacerbates the negative secondary effects of those businesses on the community.” One of these effects, the bill suggests, is rape. The bill would require creation of a “sexual assault prevention fund” that the tax funds would support.

At a press conference, Hutchinson said the bill’s purpose was to prevent violence against women. “We’re about protecting lives,” she said, asserting that the combination of alcohol and “selling sex” often leads to sexual assaults on women.

On Feb. 17 the measure, Illinois Senate Bill 3348, was referred to the Revenue Committee, where a hearing is scheduled for Feb. 23.

The ruling yesterday sets legal standards that former CEO Jeffrey Miller must meet before seeking to obtain the commenter’s identity. They include notifying the anonymous commenter through the Star’s website that the commenter is the subject of a subpoena. Miller also must identify the exact statements he believes are defamatory. Finally, he has to give evidence the statements he believes are defamatory are false.

The ruling says that while the court doesn’t want “defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters.”

Kevin Betz, Miller’s attorney, called the decision a win for his client because Miller is going to be able to show he didn’t break any laws.

“The ruling is a victory for all individuals who want to protect their good reputation,” he said.

Editor Dennis Ryerson said The Indianapolis Star was pleased that the appeals court sent the case back to the lower court. He said the newspaper was still reviewing its options.

Stephen Key, executive director and general counsel for the Hoosier State Press Association, said the ruling was the first of its kind at the appellate level in Indiana. He said it provides a process to weed out frivolous libel claims from people simply looking to find out the identities of those making anonymous comments.

“Now they have to go through a hurdle to show they have a legitimate libel case before an anonymous poster would be required to be identified in court,” he said.

According to the appeal, The Indianapolis Star ran an online story on March 19, 2010, about Junior Achievement facing questions about its financial affairs, including questions about missed payments to contractors on a building project and unaccounted for grant money. The article quoted Brian Payne, president of the Central Indiana Community Foundation, as saying payments from a fund to Junior Achievement wouldn’t resume until an independent auditor could sort through what had become of $765,000 in grant payments that Junior Achievement had already received.

On April 6, 2010, “DownWithTheColts” posted: “This is not JA’s responsibility. They need to look at the FORMER president of JA and others on the (Foundation) board. The ‘missing’ money can be found in their bank accounts.”

Miller, who has been president and CEO from 1994 through 2008, alleged in a lawsuit against Junior Achievement, the Central Indiana Community Foundation, the commenter and others that the statements about misappropriation of funds were unfounded and “made with the knowledge that they were false or with reckless disregard for whether they were true.” The Star was not named in the lawsuit.

Marion Superior Court Judge S.K. Reid ordered the newspaper to turn over any documents it had about the identity of DownWithTheColts. The Star appealed, arguing that the identity was protected by Indiana’s journalist shield law, the U.S. Constitution’s First Amendment and the Indiana Constitution.

The appeals court ruled Indiana’s shield law does not protect DownWithTheColts because he is not a reporter, editor or owner of The Indianapolis Star and was not a source of information for the story because the comments were posted after the story was written. Ryerson said the newspaper still believes the Indiana shield law should protect the identity of the commenter and is considering what step it will take next.

“We’re reviewing our options,” he said.

The appeals court noted that The Indianapolis Star changed its privacy policy on Nov. 29, 2011, linking all story comments to Facebook.

Previous: Ind. judge orders news outlets to reveal IDs of online posters

The ruling is expected to have little effect on this year’s elections because Colorado lawmakers have already changed the rules to comply with recent U.S. Supreme Court decisions that allow similar kinds of advertising.

The state’s high court upheld an appeals court ruling against Colorado Ethics Watch, a political watchdog group, which filed a lawsuit against conservative groups that it believes sent improper campaign mailers in several state races in 2008.

The high court ruled that neither the Senate Majority Fund nor the Colorado Leadership Fund were subject to regulation as political committees and had no limits on their political contributions as long as they didn’t urge voters to elect or defeat a particular candidate.

Ethics Watch said the ads violated campaign laws because they identified candidates by name, identified the office they were seeking, summarized their qualifications, summarized the key issues in their races and promised what a candidate would do if elected.

The court said none of the ads directed voters to vote for a candidate, elect or support a candidate, or to vote against, defeat or reject a candidate.

The ruling came after the U.S. Supreme Court held that corporations are authorized to use their resources to influence candidate elections by endorsing candidates through independent expenditure committees, as long as they don’t coordinate their campaigns.

State Republican Party Chairman Ryan Call said most political organizations have already switched to the new committees, which have less stringent contribution requirements as long as they report contributions and expenditures.

“The vast majority of committees have already switched or will switch,” Call said.

State Democratic Party Chairman Rick Palacio said the state Supreme Court ruling reaffirmed what political parties had been doing for years.

During the 2008 elections, both campaign groups were registered as tax-exempt political organizations. The Senate fund said its purpose was supporting candidates for the state Senate, and the other group’s purpose was “electing Republicans.”

Both groups said they did not have to comply with special rules for political committees, including restrictions that they are not allowed to accept contributions of more than $500 per person or donor.

Luis Toro, who represents Colorado Ethics Watch, said there were a lot of large contributions from corporations before the 2008 elections that were designed to raise name recognition and support for candidates they favored.

“It’s no secret they were there to support candidates. The purpose of these organizations was to support Republicans,” Toro said.

Mario Nicolais, attorney for the Senate Majority Fund, said the two political organizations disclosed all donors and expenditures as required. “The core values of this country were free speech and the right to vote,” Nicolais said.

For months in mid-2007, plainclothes officers from the NYPD’s Demographics Units fanned out across Newark, taking pictures and eavesdropping on conversations inside businesses owned or frequented by Muslims.

The result was a 60-page report, obtained by the Associated Press, containing brief summaries of businesses and their clientele. Police also photographed and mapped 16 mosques, listing them as “Islamic Religious Institutions.”

The report cited no evidence of terrorism or criminal behavior. It was a guide to Newark’s Muslims.

According to the report, the operation was carried out in collaboration with the Newark Police Department. But the Newark police director at the time said no local officers participated. And Newark’s mayor, Cory Booker, said he never authorized the spying and was never told about it.

“Wow,” he said as the AP laid out the details of the report. “This raises a number of concerns. It’s just very, very sobering.”

Police conducted similar operations outside their jurisdiction in New York’s Suffolk and Nassau counties on suburban Long Island, according to police records.

Such surveillance has become commonplace in New York City in the decade since the 2001 terrorist attacks. Police have built databases showing where Muslims live, where they buy groceries, even what Internet cafes they use and where they watch sports. Dozens of mosques and student groups have been infiltrated and police have built detailed profiles of ethnic communities, from Moroccans to Egyptians to Albanians.

The documents obtained by the AP show, for the first time in any detail, how those efforts stretched outside the NYPD’s jurisdiction. New Jersey and Long Island residents had no reason to suspect the NYPD was watching them. And since the NYPD isn’t accountable to their votes or tax dollars, those non-New Yorkers had little recourse to stop it.

“All of these are innocent people,” Nagiba el-Sioufi of Newark said while her husband, Mohammed, flipped through the NYPD report, looking at photos of mosques and storefronts frequented by their friends.

Egyptian immigrants and American citizens, the couple raised two daughters in the United States. Mohammed works as an accountant and is vice president of the Islamic Culture Center, a mosque a few blocks from Newark City Hall.

“If you have an accusation on us, then spend the money on doing this to us,” Nagiba said. “But you have no accusation.”

The Newark police director at the time, Garry McCarthy, is now in charge of the Chicago Police Department. He said the NYPD initiated the operation and none of his officers participated.

“The NYPD reached out to us as a courtesy when they were coming into Newark. Period,” McCarthy said in a brief phone interview today.

NYPD spokesman Paul Browne did not return a message seeking comment about the report in time for this story.

The goal of the report, like others the Demographics Unit compiled, was to give police at-their-fingertips access to information about Muslim neighborhoods. If police got a tip about an Egyptian terrorist in the area, for instance, they wanted to immediately know where he was likely to find a cheap room to rent, where he might buy his lunch and at what mosque he probably would attend Friday prayers.

“These locations provide the maximum ability to assess the general opinions and general activity of these communities,” the NYPD report said.

The effect of the program was that hundreds of American citizens were cataloged — sometimes by name, sometimes simply by their businesses and their ethnicity — in secret police files that spanned hundreds of pages:

• “A Black Muslim male named Mussa was working in the rear of store,” an NYPD detective wrote after a clandestine visit to a dollar store in Shirley, N.Y., on Long Island.
• “The manager of this restaurant is an Indian Muslim male named Vicky Amin” was the report back from an Indian restaurant in Lindenhurst, N.Y., also on Long Island.
• “Owned and operated by an African Muslim (possibly Sudanese) male named Abdullah Ddita” was the summary from another dollar store in Shirley, N.Y., just off the highway on the way to the Hamptons, the wealthy Long Island getaway.

In one report, an officer describes how he put people at ease by speaking in Punjabi and Urdu, languages commonly spoken in Pakistan.

Last summer, when the AP first began reporting about the NYPD’s surveillance efforts, New York Mayor Michael Bloomberg said his police do not consider religion in their policing.

Yesterday, following an AP story that showed the NYPD monitored Muslim student groups around the Northeast, school leaders including Yale president Richard Levin expressed outrage over the tactics. Bloomberg fired back in what was the most vigorous defense yet of his department.

“The police department goes where there are allegations. And they look to see whether those allegations are true,” he told reporters. “That’s what you’d expect them to do. That’s what you’d want them to do. Remind yourself when you turn out the light tonight.”

There are no allegations of terrorism in the Demographics Unit reports and the documents make clear that police were only interested in locations frequented by Muslims. The canvas of businesses in Newark mentions Islam and Muslims 27 times. In one section of the report, police wrote that the largest immigrant groups in Newark were from Portugal and Brazil. But they did not photograph businesses or churches for those groups.

“No Muslim component within these communities was identified,” police wrote, except for one business owned by a Brazilian Muslim of Palestinian descent.

Polls show that most New Yorkers strongly support the NYPD’s counterterrorism efforts and don’t believe police unfairly target Muslims. The Muslim community, however, has called for Police Commissioner Ray Kelly’s resignation over the spying and the department’s screening of a video that portrays Muslims as wanting to dominate the United States.

In Newark, the report was met with a mixture of confusion and anger.

“Come, look at yourself on film,” Abdul Kareem Abdullah called to his wife as he flipped through the NYPD files at the lunch counter of their restaurant, Hamidah’s Cafe.

An American-born citizen who converted to Islam decades ago, Abdullah said he understands why, after the 9/11 terror attacks, people are afraid of Muslims. But he said he wishes the police would stop by, say hello, meet him and his customers and get to know them. The documents show police have no interest in that, he said.

“They just want to keep tabs on us,” he said. “If they really wanted to understand, they’d come talk to us.”

After the AP approached Booker, he said the mayor’s office had launched an investigation.

“We’re going to get to the bottom of this,” he said.

There was no further response from his office this morning.

Booker met with Islamic leaders while campaigning for mayor. Those interviewed by the AP said they wanted to believe he didn’t authorize the spying but wanted to hear from him directly.

“I have to look in his eyes,” Mohammed el-Sioufi said at his mosque. “I know him. I met him. He was here.”

Ironically, because officers conducted the operation covertly, the reports contain mistakes that could have been easily corrected had the officers talked to store owners or imams. If police ever had to rely on the database during an unfolding terrorism emergency as they had planned, those errors would have hindered their efforts.

For instance, locals said several businesses identified as belonging to African-American Muslims actually were owned by Afghans or Pakistanis. El-Sioufi’s mosque is listed as an African-American mosque, but he said the imam is from Egypt and the congregation is a roughly even mix of black converts and people of foreign ancestries.

“We’re not trying to hide anything. We are out in the open,” said Abdul A. Muhammad, the imam of the Masjid Ali Muslim mosque in Newark. “You want to come in? We have an open door policy.”

By choosing instead to conduct such widespread surveillance, Mohammed el-Sioufi said, police send the message that the whole community is suspect.

“When you spy on someone, you are kind of accusing them. You are not accepting them for choosing Islam,” Nagiba el-Sioufi said. “This doesn’t say, ‘This guy did something wrong.’ This says, ‘Everyone here is a Muslim.’”

“It makes you feel uncomfortable, like this is not your country,” she added. “This is our country.”

Read the reports:

Newark, N.J.

Nassau County

Suffolk County

Also see: Targets of NYPD surveillance may have little legal recourse

“Eyes rolling back, foaming at the mouth, bleeding from a body part — that’s nobody’s business but the medical personnel and the patient. I think it has crossed the line,” said Assemblywoman Norma Torres, who was a Los Angeles Police Department emergency dispatcher for more than 18 years before her election to the Legislature in 2008.

Current law already allows law enforcement agencies to withhold personal details, but Torres’ A.B. 1275 would prohibit them from releasing medical or personal identifying information contained in emergency calls.

The measure by Torres, D-Pomona, is one of hundreds proposed by lawmakers ahead of a Feb. 24 deadline to introduce bills to be considered this year.

This is the second year of a two-year session. Typically, it produces a few hundred bills less than the first year.

Last year, lawmakers introduced 2,381 bills and sent 870 of them to the governor, who signed 774 into law. In 2010, lawmakers considered 1,871 bills and sent 1,029 of them to the governor, of which 722 became law.

Lawmakers already faced a separate deadline at the end of January, when legislation introduced last year had to pass the chamber in which it originated. The bills being introduced for this year face months of committee hearings before the Legislature’s scheduled adjournment Aug. 31.

The bill by Torres, D-Pomona, already is causing a stir.

She said in an interview that her intent was to prevent only the disclosure of medical conditions, but her one-sentence bill contains a second restriction. It says that, “Notwithstanding any other law, a public agency shall not disclose any portion of a 911 emergency telephone call providing medical or personal identifying information.”

Her spokeswoman, Catalina Martinez, says Torres intends a narrow interpretation: “Social Security number, home address, that type of personal information. That’s what we mean by that. It’s within the same concept.”

Critics of the legislation have said federal and state laws already provide enough protections.

The news media generally can obtain copies of emergency dispatch tapes under the California Public Records Act. The law already allows agencies to withhold information “that is medical or personal that if disclosed would cause an unwarranted invasion of privacy,” said Jim Ewert, general counsel for the California Newspaper Publishers Association.

It’s up to each agency to decide what qualifies.

In Moore’s case, Los Angeles fire officials, acting on the advice of the city attorney’s office, cited federal medical privacy rules in redacting details about the actress’ medical condition and substances that witnesses said she might have ingested or smoked. Moore’s publicists did not respond to requests for comment about Torres’ bill.

Making the content of emergency phone calls public provides a way to ensure that dispatchers, police and rescue workers are doing their job properly, said Mark Powers, vice president of the California Broadcasters Association.

People could hesitate before calling 911 if they realize their conversations can be made public, said Peter Scheer, executive director of the First Amendment Coalition. But he said restrictions beyond existing law could tip the balance too far in limiting the public’s right to know how emergency workers respond.

Torres says she doesn’t want to limit public access, just personal details.

“If she’s overdosing, on drugs, that’s fair game. What symptoms she has as a result of that overdose, none of your business,” she said.

Torres said she was influenced by her own experience as a bilingual dispatcher. In 1995, she had to listen helplessly as an 11-year-old girl was murdered on the other end of the telephone line.

“I was her only witness,” Torres said. “I heard her head being banged; I heard her pleading for her life; I heard the five shots that ended her life.”

The tape was withheld from public disclosure under existing law, she said, except when it was played in court.

Although presidential candidate Rick Santorum has said little about many First Amendment issues, his focus on religious liberty and on shielding children from certain media and information are prominent on his record in the Senate and on the campaign trail.

In the Senate
During his 12 years in the Senate (1995-2007), Santorum introduced several pieces of legislation implicating freedom of speech and of religion.

Santorum advocated shielding children from controversial forms of media. In 1999, he introduced the Neighborhood Children’s Internet Protection Act, a bill that would require public schools and libraries to install filtering software or adopt Internet-use policies to prevent students from accessing material deemed inappropriate. The bill would allow the school board or library to determine which such material was inappropriate for minors. Santorum’s bill died in committee, but much of its content was included in a House appropriations bill that became law in 2000. The bill’s Children’s Internet Protection section required schools and libraries to use Internet filtering software in order to continue receiving federal money.

Santorum was also one of nine senators to sign a letter in 1999 to Seagrams/MCA, the parent company of rock band Marilyn Manson’s record label, requesting that the company stop profiting from “peddling violence to young people.” The letter, written by Sen. Sam Brownback, R-Kan., said the students involved in the Littleton, Colo., school shootings had been influenced by Manson’s songs about violence.

On the issue of campaign finance, Santorum favored leniency in contribution and advertising limits. In 1997, he sponsored the Voter Empowerment and Campaign Disclosure Act of 1997, The bill, which died in committee, would have increased individual and political action committee contribution limits while also increasing disclosure requirements. In 2002, Santorum voiced opposition to the McCain-Feingold Act, arguing that it violated the right to free speech and that the limits on political advertisements were particularly troubling.

Santorum legislated on several religious-freedom issues during his time in the Senate.

In 1999, he introduced the Women and Children’s Resources Act, designed to “establish a program of formula grants to the states for programs to provide women with alternatives to abortion.” The bill did not make it past the committee stage.

He also co-sponsored unsuccessful attempts to pass the Workplace Religious Freedom Act in 2002, 2003, and 2005. The bill would have amended the Civil Rights Act of 1964 to “establish provisions with respect to religious accommodation in employment.”

In 2002, opponents of the Ohio Board of Education’s decision to teach evolution exclusively cited an amendment proposed by Santorum to the No Child Left Behind Act. The amendment, which passed the Senate but was deleted in compromise negotiations with the House, would have required the “full range of scientific views” to be taught when biological evolution was discussed. In a letter published in The Washington Times, Santorum said that without standards that would teach alternatives to evolution, Ohio would be denying its students the most thorough education.

“Dissenting theories should not be repressed, but discussed openly. To do otherwise is to violate intellectual freedom,” he wrote.

Santorum supported patriotic efforts in the Senate, co-sponsoring resolutions that passed expressing support for the Pledge of Allegiance in 2002 and 2003. He co-sponsored unsuccessful resolutions in 1998, 1999 and 2001 prohibiting physical desecration of the American flag.

At the end of his second term, a Santorum book-signing generated controversy in 2006 when several young women were asked by a state trooper to leave a Barnes & Noble store in Wilmington, Del. The women were discussing their opposition to Santorum’s opinions in his book It Takes a Family. The ACLU filed a lawsuit against the Delaware state police officer involved and Santorum representatives present that was eventually settled. Under the settlement agreement, the Delaware State Police adopted a training program on protesters’ free-speech rights. Although the Santorum staff denied involvement with the request to leave, two of his aides were required to write apology letters to the plaintiffs and pay them a collective $2,500, the amount they received for assisting Santorum on the book tour.

Candidate Santorum
As a candidate for the Republican presidential nomination, Santorum has continued to focus on religion as a First Amendment issue.

In February, he said on MSNBC’s “Morning Joe” that President Barack Obama “tramples [the First Amendment] on a regular basis” when asked about the administration’s requirement that religious employers cover birth control in employee health-insurance plans.

“The First Amendment is sort of important in this country. And while not everybody necessarily agrees on how you exercise the First Amendment, people do believe you have the right to exercise it. And they don’t believe the government should be … forcing you to do things that you find deeply, morally wrong,” Santorum said.

At a rally preceding the Minnesota primary in February, Santorum also criticized the Obama administration when the office of the Chief Chaplains of the U.S. Army did not allow Catholic chaplains to read a letter from Timothy Broglio, archbishop for the military services. The letter encouraged Catholics to oppose the mandate requiring Catholic employers to provide contraception coverage. Secretary of the Army John McHugh later allowed the letter to be read but he told Broglio to remove the line, “We cannot — we will not — comply with this unjust law.”

“This is not just an affront to the First Amendment freedom of religion, it’s an affront to the first amendment freedom of speech,” Santorum said.

Santorum has attacked Obama’s personal worldview with suggestions that it lacks an adequate religious basis. In February, Santorum said Obama practiced “a different theology” that is “not a theology based on the Bible.” Santorum told CBS News’ “Sunday Morning” Feb. 19 that the comments were in reference to Obama’s environmental views, rather than to his faith. Santorum said that Obama had “a world view that elevates the earth above man.” However, the Associated Press reported that later that day, Santorum assailed Obama’s “theology” again, without referring to environmental policies, in a speech to more than 2,000 supporters at a megachurch in suburban Atlanta.

On his campaign website, Santorum espouses dedication to the First Amendment right to freedom of religion, highlighting his support in 2004 of a federal amendment defining marriage.

Santorum has also pledged to enforce laws against pornography if he is elected president. On his website, he criticizes the Obama administration for “turning a blind eye” and neglecting to enforce current obscenity laws that prohibit hard-core pornography from being distributed on the Internet and television or through retail stores or the mail.

“While the Obama Department of Justice seems to favor pornographers over children and families, that will change under a Santorum Administration,” he says on his website.

On the issue of protest, Santorum’s comments about the Occupy movement received attention in February.

“I think it’s really important for you to understand what this radical element represents. Because what they represent is true intolerance,” he said. The comments followed an incident in Washington where protesters shouted throughout an entire Santorum event and threw glitter on the candidate.

Santorum added that the 9th Circuit’s decision to overturn California’s same-sex marriage ban was another example of the group’s intolerance.

“What they said was that anybody who disagreed with them [was] irrational and the only reason they could possibly agree is they were a hater or a bigot,” he said. “Now I gotta tell you, I don’t agree with these people but I respect their opportunity to be able to have a different point of view and I don’t think they’re a hater or a bigot because they disagree with me.”

The law banned the “unlawful use or access of social media,” which included “the using or accessing of social networking websites, chat rooms and peer-to-peer networks by a person who is required to register as a sex offender.” It provided some serious punishments, including a 10-year sentence for a first offense and a 20-year sentence for any subsequent conviction under the law.

The legislation sounds reasonable at first blush. After all, the protection of minors remains a paramount interest in our legal system and taking away social media would remove one avenue for would-be sex offenders to contact children.

However, laws must be crafted with proper precision. They can’t sweep too broadly or fail to define or explain key terms. If they do, then they’re unconstitutionally overbroad and/or vague. In First Amendment terms, they would restrict too much speech, or leave unclear which kinds of speech would be restricted.

U.S. District Judge Brian A. Jackson found that this sex-offender law was both overbroad and vague.

Too broad, he said, because it would criminalize substantial amounts of protected speech. The law would prohibit former sex offenders from reading many online newspapers, using Facebook or MySpace, or even accessing the federal court’s website. Too vague because the plaintiffs, two former sex offenders, “refrained from accessing many websites that would otherwise be permissible for fear that they may unintentionally and unknowingly violate the law,” Jackson wrote.

The plaintiffs noted that they declined to use their “web-based e-mail accounts” for fear of violating the law.

Make no mistake about it: Government officials should pass laws protecting children from sex offenders. But they must not ignore basic constitutional principles in doing so.

Set for argument on Feb. 22, the case asks whether the Stolen Valor Act, which makes it a crime falsely to claim having won a military honor, violates freedom of speech.

The 9th U.S. Circuit Court of Appeals declared the law unconstitutional in the case of Xavier Alvarez, a local politician in Pomona, Calif., who was convicted for claiming in a public speech that he had won the Medal of Honor, when in fact he had never even served in the military.

On one hand, the Court has often said, at least in passing, that false speech deserves little or no First Amendment protection. And lying about a military honor could pull at the justices’ patriotic heart strings. On the other hand, do justices really want the government criminalizing seemingly inconsequential lies, when politicians, spouses, teenagers and dentists (“It won’t hurt a bit”) lie more or less daily? As 9th Circuit Judge Alex Kozinski wrote at an earlier stage of the case, “living means lying.”

The hourlong argument will pit Solicitor General Donald Verrilli Jr. against California federal public defender Jonathan Libby. Here are some points to watch for that could signal the outcome:

Roberts’ mood: Chief Justice John Roberts Jr. has authored some of the Court’s most ringing endorsements in favor of protecting offensive speech in recent years (Snyder v. Phelps, United States v. Stevens). In a 2007 case he wrote, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” As chief justice, he gets to decide who writes the Court’s opinion when he is in the majority. “He is almost twice as likely to keep the opinion for himself in a free-speech case,” notes Florida International University College of Law professor Thomas Baker. If, in his questioning, Roberts seems to view the Stolen Valor Act as a narrow and reasonable restriction on speech, then the law may survive.

Citizens United: The controversial 2010 decision in Citizens United v. Federal Election Commission could make a cameo appearance in the Alvarez arguments. Almost as an afterthought, lawyers for Alvarez argued in their brief that even if the Court finds that the Stolen Valor Act is constitutional on its face, it is unconstitutional when applied to Alvarez. That’s because Alvarez, when he was misrepresenting his record, was an elected official engaging in “core political speech” about his background — the type of speech that is most immune from government restriction. In Citizens United, the Court said that “political speech must prevail against laws that would suppress it,” and even said it was possible that “political speech cannot be banned or restricted as a categorical matter.” If Alvarez’s lawyer makes this argument before the Court, it could be a sign of trouble — but it could also be a winning argument.

Power of the press: Several justices, including Antonin Scalia, can be persuaded to vote against government restrictions on speech by the argument that “the remedy for bad speech is more speech.” In this context, Alvarez and several amicus briefs are making that argument by asserting that the news media are solving the problem the Stolen Valor Act was intended to cure. Alvarez himself was pilloried in the local press before and during the FBI investigation that led to his indictment. Numerous media investigations have outed others who have falsely claimed to have won military honors. The Chicago Tribune in 2008 published articles revealing that hundreds of people in the Who’s Who directory had misrepresented military awards. Military Times has assembled an online database listing thousands of people who have legitimately won honors. “The honor symbolized by military decorations is not preserved by imprisoning those who lie about having won them, but by shining a light on their deceit,” a brief filed on behalf of several news organizations asserts.

Breathing space: The government bases its defense of the law on the claim that it is drafted narrowly enough that it gives adequate “breathing space” for speech that should be protected and does not chill speakers who might censor themselves for fear of violating the law. How much respect that defense garners during oral argument will be telling. The American Civil Liberties Union argues that false statements are “protected in their own right,” not limited by a breathing-space analysis. Upholding the law, the ACLU says, would allow the government to punish everyone from a blogger who claims President Barack Obama was not born in the United States to a job applicant who claims he can type 60 words a minute. But University of Virginia School of Law professor Leslie Kendrick says such fears are overstated. Precedents such as R.A.V. v. St. Paul would not allow the government to regulate speech just because it is unpopular, she says. Kendrick adds that the Court has articulated the breathing space/chilling effect test since 1974, “and in that amount of time, I don’t think we’ve seen the floodgates open.”

Compelling interest: The government argues that the Stolen Valor Act serves its “compelling” interest in preserving the integrity of its military honors system and “conveying to the public the government’s gratitude towards those who have sacrificed for the country and fostering morale and valorous conduct within the military.” A brief by the Criminal Justice Legal Foundation likens the harm of false claims of military honors to counterfeit money. “Every real bill is worth a little less for the existence of a fake.” But a brief by a coalition of veterans’ groups argues that false claims don’t devalue the awards given to genuine winners: “This case is not about protecting the reputations of heroes … there is nothing that charlatans such as Xavier Alvarez can do to stain their honor.” If the justices seem skeptical of the “compelling interest” claim, the law may be in trouble.

The Kagan factor: In a 1996 law review article, Elena Kagan, then a University of Chicago law professor, analyzed First Amendment issues from the perspective of legislative motives in passing laws that restrict speech. She voiced skepticism about “the near absolute protection given to false but non-defamatory statements of fact outside the commercial realm” and “sweeping protection of speech that disserves understanding.” Now that she is a justice, will she express the same concerns?

The settlement forced the state and the Utah Highway Patrol Association to remove 11 Roman crosses along state highways and roads.

The trooper association has taken down the crosses and plans to move them off roadsides and rest stops to nearby private land with the owners’ permission. It also must remove UHP logos from the symbols.

The lawsuit was filed by American Atheists Inc. and three of its Utah members in 2005.

Utah paid $1 to settle the case, but the Utah Attorney General’s office confirmed Feb. 17 it is paying about $388,000 in legal fees for the atheists.

Utah and the troopers’ association “fought tooth and nail saying these crosses aren’t really religious symbols and they should stay,” Brian Barnard, a civil rights lawyer who represented American Atheists, said. “They wouldn’t entertain any discussion about compromising over six years. We offered repeatedly to try and resolve it short of full litigation.”

At first, the atheists’ lawsuit was dismissed by U.S. District Court Judge David Sam in Salt Lake City, but a three-judge panel from the 10^th U.S. Circuit Court of Appeals ruled in 2010 that the highway crosses represented a state endorsement of Christianity.

State attorneys appealed the decision to the U.S. Supreme Court, but justices declined to hear the case last year.

Barnard said the $388,000 pays his legal fees but that the state and trooper association probably spent as much money and time trying to defeat the lawsuit.

The Utah Highway Patrol Association maintains the memorials and is repainting them to remove official logos. It was represented by the Alliance Defense Fund, a Scottsdale, Ariz., group that describes itself as a defender of religious freedom.

“We were prepared to fight this battle to the very end because it was very important,” said Byron Babione,the group’s senior counsel.

Babione said troopers were unhappy with the settlement and wanted to keep the crosses in place — without logos, but with a disclaimer saying Utah wasn’t endorsing any religion.

State lawyers rejected that request, saying it risked more litigation, he said.

Barnard’s legal fees were authorized by Gov. Gary Herbert and the Utah Legislature, but Barnard said he was given a check on Feb. 15 that fell about $8,000 short of the agreed figure.

Utah is writing a second check to cover the difference, said Attorney General Mark Shurtleff’s spokesman, Paul Murphy.

Previous: Parties in Utah memorial-crosses case submit settlement