Stolen Valor case: False speech may leave some justices cold

Tuesday, October 18, 2011

WASHINGTON — In classic First Amendment free-speech cases, the Supreme Court has had an impressive run in recent years, striking down laws that: banned videos of animal cruelty (U.S. v. Stevens, April 2010); allowed suits against protesters at military funerals (Snyder v. Phelps, March 2011); and prohibited renting and selling violent video games to minors (Brown v. EMA, June 2011.)

Will that streak of First Amendment victories soon come to an end? That was the question of the day yesterday when the Court announced it was granting review in United States v. Alvarez, the next in a series of First Amendment cases that seem custom-made for free-speech casebooks.

The case, which will be argued early next year, asks the Court to decide whether the Stolen Valor Act of 2005 violates the First Amendment. The law makes it a crime to falsely claim having been awarded a military medal or decoration, including the Medal of Honor.

Xavier Alvarez, a member of a California water-district board of directors, was convicted under the law after stating at a public meeting that he was a retired U.S. Marine who had been wounded in combat and given the Medal of Honor. It turned out he never served in the military at all. He challenged the law on First Amendment grounds, and the 9th U.S. Circuit Court of Appeals struck it down. The United States is asking the Court to reinstate the law.

At first it seems like an easy case: the First Amendment has long been viewed to include the right to be wrong, so to speak. The “uninhibited, robust and wide-open” debate that Justice William Brennan wrote of in 1964 in New York Times Co. v. Sullivan, would be diminished, he suggested, if a First Amendment exception was made for “any test of truth  … and especially one that puts the burden of proving truth on the speaker.”

The Court may well feel the same way about the Stolen Valor Act, especially in light of an opinion written in the Alvarez case by 9th Circuit Judge Alex Kozinski. He vigorously agreed that the law is unconstitutional, flawed in part because it puts government “truth police” in the position of sorting out truth from falsity — and punishing the falsity.

In his colorful style, Kozinski wrote, “Saints may always tell the truth, but for mortals living means lying,” especially when talking about oneself. That, he said, is “precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tall tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all.”

But chances are good that many of the justices, if not most, will not view the case through Kozinski’s lens.

For one thing, the Court may not see the falsity involved as something trivial, like lying about one’s weight or bowling score. Solicitor General Donald Verrilli Jr. argues in his petition that the carefully vetted military-awards program, dating to the days of Gen. George Washington, “performs crucial functions within the military” — helping motivate and instill pride in the troops and their families. Allowing false representations of medal-winning to stand would weaken that “compelling interest.” (Opponents of the law will no doubt argue that the government’s interest is minimal, not compelling.)

Verrilli also insists that the wording of the law will not threaten satirical or artistic expressions that might depict military medals — though that point too is likely to draw skepticism in briefs supporting Alvarez.

But also working to the government’s advantage is that the Court, in several precedents, has said false speech deserves little if any First Amendment protection.

“There is no constitutional value in false statements of fact,” the Court wrote in the 1973 landmark Gertz v. Welch. Calculated falsehoods, the Court said in Garrison v. Louisiana (1964), are “no essential part of any exposition of ideas.” The Court has never comprehensively stated that falsehoods as a category lie outside the protection of the First Amendment in the same way that obscenity does, for example.

But 9th Circuit Judge Diarmuid O’Scannlain, in his dissent in the Alvarez case, forcefully pointed to these and other cases in arguing that the Stolen Valor Act complied with decades of Supreme Court precedent, and that “restrictions upon false speech do not receive strict scrutiny.” If O’Scannlain’s view takes hold, the Supreme Court’s pro-First Amendment trend may soon take a sharp U-turn.

Tags: , , ,