Does the First Amendment Protect Lies About Military Valor?

February 22, 2012

The U.S. Supreme Court will hear oral arguments today in United States v. Alvarez, a case challenging a 2006 federal law that made it a crime to lie about receiving military medals or honors.

The case arose from the prosecution of California resident Xavier Alvarez after he falsely claimed that he had received the Medal of Honor. Alvarez was one of the first to be prosecuted under the Stolen Valor Act.

Alvarez's lawyer contends that the law is an unconstitutional infringement on free speech. The government argues that the law is narrowly tailored and is necessary to protect the military's award system.

Is the Stolen Valor Act constitutional, or is it a violation of the First Amendment?

University of Virginia School of Law professor Leslie Kendrick is an expert on the First Amendment, particularly the freedoms of speech and of the press.

"The Alvarez case gives the court an opportunity to clarify its stance on false statements of fact. Moving in chronological order, in New York Times v. Sullivan, the court suggested that false statements of fact may have independent value and thus protection under the First Amendment. In Garrison v. Louisiana, the court said that knowingly false statements do not merit protection. In Gertz v. Robert Welch, Inc., it said that all false statements of fact are unprotected in their own right, though some may receive strategic protection in order to prevent chilling of true speech.And most recently in United States v. Stevens, the court purported to outline all the existing categories of unprotected speech and did not name false statements of fact at all. Instead, it named two subcategories of false speech, defamation and fraud. This led the U.S. Circuit Court of Appeals for the 9th District in Alvarez to conclude that all false statements about military decorations were protected, even deliberate lies.

"Thus the court has a choice from a fairly long menu of options. Either all false statements are protected, none of them are, or some are and some aren't. And with respect to any of these options, the court should explain whether false statements receive this level of protection in their own right or prophylactically, in order to prevent chilling of truly protected speech.

"Possibly the court could avoid these questions through its construction of the statute. The Stolen Valor Act appears to criminalize all false statements about one's own military decorations, even those said negligently or innocently. The court might conclude that it cannot reasonably construe the statute to include a mens rea requirement and that, without one, it fails under any plausible constitutional standard. But even here, it might be hard for the court to avoid the question of what the correct standard is (and thus what a constitutional law of this kind, if any, would look like).

"Another wrinkle is that, should the government prevail in arguing that the statute targets knowingly false statements, and that knowingly false statements of fact are not protected, it still must demonstrate that this law is not unduly discriminatory. The case RAV v. St. Paul limited the state's ability to regulate selectively within an unprotected category of speech. A law that only singles out false statements about one's own military decorations is certainly selective. In order to carry the day, the government must show that the Stolen Valor Act fits within one of RAV'sexceptions for permissibly discriminatory regulation.

"Given the diversity of the court's previous utterances on false statements of fact — and the question of this particular court's commitment to the Stevens dicta, — what the court will do is anybody's guess."

Josh Wheeler
Josh Wheeler

Josh Wheeler teaches the Law School's First Amendment Clinic and is director of the Thomas Jefferson Center for the Protection of Free Expression, which filed a brief with the Supreme Court arguing that the Stolen Valor Act is unconstitutional.

"It is a hallmark of First Amendment jurisprudence that expression is presumptively protected unless it falls within one of several carefully prescribed exceptions. Were the court to hold the Stolen Valor Act constitutional, it essentially would be creating a new categorical exception — false speech without any evidence of harmful effect or unlawful intent. As such, the only purpose the act actually serves is to punish speech that a majority of people really, really don't like. That's a dangerous precedent for free speech.  What good is a First Amendment if it only protects expression that we like?"

UVA law professor Frederick Schauer is an expert in constitutional law and author of "Facts and the First Amendment," which dealt with issues similar to Alvarez.

"What makes the case so interesting and important is that the circumstances in which even intentional factual falsity can be punished consistently with the First Amendment have been taken to be quite limited.

"Intentional factual falsity about particular individuals can be punished as libel or slander, and intentional factual falsity about goods or services can be punished as fraud, or as violations of the securities laws, or as violations of the laws regarding false labeling and advertising, and so on. But it has been widely understood that merely saying things that are false in general, even if intentionally so, cannot be punished. And that is why, for example, the United States does not and cannot punish Holocaust denial, even though many other open democracies do so. Similarly, the falsity of claims that President Obama was not born in the United States, or that President George W. Bush knew about the 9/11 attacks in advance, or that astrology makes reliable predictions of human behavior, have never been thought to justify punishment in light of the First Amendment.

"The First Amendment as traditionally understood assumes, even if mistakenly, that the truth or falsity of such claims will be sorted out in the so-called marketplace of ideas, and that even if the marketplace of ideas is flawed as a determiner of truth, so the argument goes, it is less flawed than the determination by a government agency, or even by a court. Libel and fraud and the like are well-accepted exceptions to this, but the prevailing tone of the history and doctrine of the First Amendment is not to punish people simply for putting false ideas or false facts into public discourse. The question about the constitutionality of the Stolen Valor Act directly implicates and perhaps challenges this understanding.

"It is possible that the court will view this statute as simply a minor variation on well-accepted fraud remedies, in which event the case will not turn out to be that significant. But it is also possible that the court will take on the issue of whether intentionally making demonstrably false factual statements, even if not in the libel or commercial fraud context, is not the kind of thing that the First Amendment does or ought to protect. A decision in this vein would have far-reaching implications, and a decision declaring the act unconstitutional would reinforce a long but controversial theme in First Amendment history and doctrine."

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