Kennedy invokes counterspeech doctrine in Alvarez

Thursday, June 28, 2012

Justice Anthony Kennedy invoked the time-honored principle of counterspeech in his plurality opinion striking down the Stolen Valor Act today in the Supreme Court’s ruling in United States v. Alvarez.

Eighty-five years ago, Supreme Court Justice Louis Brandeis wrote in his concurring opinion in Whitney v. California (1927): “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

This statement forms the essence of the Court’s counterspeech doctrine — that the government should counter bad speech with good speech, should counter false speech with truthful speech as opposed to engaging in raw censorship and stark suppression.

Kennedy quoted Brandeis’ famous passage as one reason that the Stolen Valor Act of 2005 was unconstitutional. The act made it a crime to lie about having earned military honors and medals.

Kennedy reasoned that instead of a criminal penalty, the government could expose liars by informing the public who had actually received military honors.

“The Government has not shown, and it cannot show, why counterspeech would not suffice to achieve its interest,” Kennedy said. “The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie.”

Kennedy elaborated that “the remedy for speech that is false is speech that is true,” calling it “the ordinary course in a free society.”

Legislators would be wise to consider the reasoning of Justices Brandeis and Kennedy when passing criminal laws that suppress speech. There might be another method of dealing with negative speech — like countering it with positive speech.

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