Court Stays Clear of Tinkering with the First Amendment

Xavier Alvarez got twin pieces of good news Thursday. First, thanks to the Court’s decision in the Health Care Cases, Medicaid in California may soon be funded to supply mental-health services to crazed compulsive liars like him. Second, and of more immediate interest to him, he won’t be doing a year in the federal slam for falsely claiming to have won the Congressional Medal of Honor.

United States v. Alvarez was second banana on the Supreme Court stage Thursday, blasted out of the headlines by the stunning decision upholding the Affordable Care Act. But the case had been closely watched in the First Amendment community. That’s because it represented an attempt by the government to find a brand-new, gaping hole in free-speech protection—a First Amendment exception for liars like Alvarez.

Alvarez, as has been reported earlier, is a half-crazed poseur who likes to claim, among other things, to have played for the Red Wings, to be the ex-husband of a Mexican movie star—and to hold the Medal of Honor. He was rash enough to make the last claim at a meeting of a California water-district board he was elected to, and after a complaint by a woman who knew Alvarez, the recording of that meeting was obtained by the FBI. Lying about the Maple Leafs is one thing, but lying about holding the nation’s highest military decoration was made a criminal offense in 2006, under the Stolen Valor Act. The law makes it a crime to lie about having won any U.S. military medal but doubles the sentence if the lie concerns the nation’s highest military honor. 

The District Court denied Alvarez’s motion to dismiss on First Amendment grounds, but the Ninth Circuit overturned his conviction on the grounds that free speech protects even lies, unless they are actually fraudulent or otherwise dangerous. Meanwhile, the Tenth Circuit came to the opposite conclusion in a case called United States v. Strandlof. The Tenth Circuit professed to find in existing case law a principle that government may punish lies generally, as long as it leaves “breathing space” for speech that is close to the line.

Nobody is much concerned about what happens to Xavier Alvarez; but the government’s argument raised alarms among free-speech and press-freedom groups. If the First Amendment provides no protection for lies, then a wide variety of subjects (“disparagement” of agricultural products, for example—remember when Oprah was sued in Texas for saying she didn’t eat burgers?) might be targeted for “anti-lying statutes” next.

The case pitted advocates of strict adherence to truth against others who contended that most human beings lie about something at some point and that government ought to keep its nose out of most of these lies. (The best moment in oral argument occurred when Justice Elena Kagan proposed to Solicitor General Donald Verrilli a hypothetical statute: “The government has a strong interest in the sanctity of the family, the stability of the family; so, we're going to prevent everybody from telling lies about their extramarital affairs.”)

The Court rejected the act Thursday, on a vote of 6-3. Justice Anthony M. Kennedy wrote a textbook opinion, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justice Stephen Breyer, joined by Justice Elena Kagan concurred separately, in an opinion that will control.* As it did in United States v. Stevens (the “crush video” case) and Brown v. Entertainment Merchants Association (the violent video games case), the Court majority declined to go into the business of finding new exceptions to the First Amendment.

Justice Breyer’s concurrence offered an interesting window in the mercurial mind of this least speech-protective liberal. He rejected Justice Kennedy’s standard of “exacting scrutiny” for all “content-based” restrictions on speech. That gave government too little leeway to fashion important statutes (including, though Breyer didn’t say so, campaign-finance and independent-expenditure laws). Instead, he proposed what he called “intermediate scrutiny,” which would “ask whether it is possible substantially to achieve the Government’s objective in less burdensome ways.” That would require a narrower focus—on lies about medals intended to defraud, for example—or a requirement that someone be actually harmed by a lie. Between the lines, one can imagine that Breyer and Kagan want to signal a slight brake in the First Amendment stampede, which has overwhelmed campaign finance, is compromising government regulation of business and advertising, and now, since the decision in Service Employees International Union v. Knox last week, labor law.

Kennedy’s opinion broke no new ground; his First Amendment theories are now the most influential on the Court. Despite language in earlier cases disparaging the value of false statements, Kennedy wrote, there is no general principle that government can suppress lies. Other statutes that do so are closely aimed at problems like fraud, obstruction of justice, defamation, and invasion of privacy—all “historical exceptions” to “the freedom of speech.” To create a new exception for lies, Kennedy wrote, “would give government a broad censorial power unprecedented in the Court’s cases or in our constitutional tradition. The mere potential for exercises of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.”

The cure for phony medal winners, Kennedy said, was exposure. “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.”

Justice Samuel Alito dissented, in an opinion joined by Justices Antonin Scalia and Clarence Thomas. Alito pictured a nation afflicted by “an epidemic of false claims about military decorations.” These lies “inflict substantial harm,” he said. They “debase the distinctive honor of military awards” and inflict anguish on genuine heroes. Because the act prohibited “knowingly false statements about hard facts directly within a speaker’s personal knowledge ... proscribing them does not chill any valuable speech.”

Alito trusts his nose for valuable speech more than, it seems to me, a judge ideally should. Kennedy sometimes draws his free-speech net a bit too broadly. (His standard of “exacting scrutiny,” proposed in this case, seems to me to be designed never to approve any regulation of speech, unless it is already a “historical exception.” That’s a bit much.) Alas, Baby Bears Breyer usually isn’t just-right either. But in this case, at least, the majority has it about right. With his characteristic flair, Kennedy wrote, “Truth needs neither handcuffs nor a badge for its vindication.”

*CORRECTION: An earlier version of the post erroneously stated that Kagan had joined Kennedy’s opinion.

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