Military-medals ruling may hinge on ‘breathing space’ concept

Monday, June 11, 2012

When the U.S. Supreme Court issues its much anticipated decision on the constitutionality of the Stolen Valor Act in United States v. Alvarez, chances are good that the Court will address the concept of “breathing space.”

The Stolen Valor Act is a federal law that criminalizes the making of false statements about receiving military decorations or medals. The government defends the law, saying it prohibits only a narrow category of objectively verifiable false statements about military medals.

Xavier Alvarez, of Pomona, Calif., contends that the law dangerously expands the government’s ability to serve as truth police. He was once a member of a California water district board who was convicted under the law for claiming falsely in a speech that he had won the Medal of Honor. The 9th U.S. Circuit Court of Appeals declared the law unconstitutional.

The Supreme Court in the past has invalidated certain restrictions on expression, saying they chill speech that ought to be protected. Sometimes the Court expresses this view by saying that free speech needs room to breathe. Justice William Brennan introduced the terminology in First Amendment jurisprudence in NAACP v. Button (1963) — a case about  restrictions on the NAACP’s associational activities and right to sue  — when he wrote: “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”

The term has been used in 50 more First Amendment cases since Button. Brennan quoted his “breathing space” language the very next year in the landmark libel decision New York Times Co. v. Sullivan (1964), writing that “erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive.’”

A few days before oral arguments in Alvarez, veteran Supreme Court reporter Tony Mauro identified a “checklist of things to watch.” He pointed out that the “breathing space” concept was important to the government’s position. The government argues that the Stolen Valor Act does provide breathing space for speech by criminalizing only a narrow and discrete category of provably false speech.

During oral arguments Feb. 22, the term “breathing space” was mentioned a whopping 17 times. U.S. Solicitor General Donald Verrilli Jr. used it 11 times in his defense of the law. Four justices — Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Sonia Sotomayor and Anthony Kennedy — mentioned “breathing space” in their questions.

Sometime this month the U.S. Supreme Court will either uphold or invalidate the Stolen Valor Act. It could interpret the law narrowly as prohibiting false statements about military medals or it could find that the law violates the First Amendment by establishing a dangerous precedent, allowing the government to police the truth.

Whatever the outcome, expect the justices to discuss the concept of “breathing space” in their opinion(s).

Related: Justices may uphold Stolen Valor Act

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