Stolen Valor Act case: a checklist of things to watch

Monday, February 20, 2012

WASHINGTON — Unlike some other recent First Amendment cases the Supreme Court has handled, United States v. Alvarez is a tough one to call.

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?

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