Monday, July 02, 2012

The Right to Lie

By Mike Dorf



With so much attention being paid to the Supreme Court's Affordable Care Act decision last week, it was easy to overlook another ruling--that the Stolen Valor Act violates the First Amendment. In United States v. Alvarez, the Court invalidated an act of Congress that made it a crime to falsely claim that one is a decorated war hero. (The particular case involved a knowingly false claim that that speaker had been awarded the Congressional Medal of Honor.)

To my mind, the plurality opinion (authored by Justice Kennedy and joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor) gets it just about right: There is no pre-existing category of unprotected speech comprising false statements of military valor; United States v. Stevens sets an extraordinarily high threshold for the creation of new categories of unprotected speech; there is no way to squeeze the statute into any of the existing categories of unprotected false speech; therefore the law must be subject to strict scrutiny as a content-based restriction on presumptively protected speech; and while protecting the integrity of the system of honoring fallen war heroes may count as a compelling interest, the Stolen Valor Act is not the least speech-restrictive means of furthering that interest because Congress had other means at its disposal, such as a definitive online database of award winners.

But Justice Kennedy wrote only for himself and three other Justices in Alvarez. To get a majority, one must add in the concurrence in the judgment of Justice Breyer (joined by Justice Kagan). They also voted to invalidate the Stolen Valor Act, but they did so applying intermediate scrutiny, which, in this case, Justice Breyer equated with "proportionality" analysis. The question is why Justice Breyer (and Justice Kagan) think that strict scrutiny does not apply.

One possibility might be that they do not think that the Stolen Valor Act is really content-based. After all, the law criminalizes all false claims of military decoration, not just those used to advance, say, politically conservative causes. But such a view would mistake content-neutrality with viewpoint-neutrality. Even the dissenters do not claim that the Stolen Valor Act is content-neutral. They only say it is viewpoint-neutral.

Perhaps then, Justices Breyer and Kagan object to the doctrine under which the Supreme Court subjects content-based restrictions on speech to strict scrutiny, unless they fall within one of the previously enumerated categorical exceptions. This hypothesis indeed does seem to describe what Justice Breyer's opinion is up to, although even then, Justice Breyer appears to think that his proportionality analysis properly describes the Court's past practice. But that certainly is not what past cases have said. Justice Kennedy's plurality is on much firmer ground in characterizing the prior doctrine as a formal matter. So either Justices Breyer and Kagan think that those prior cases disguised a de facto lower standard being applied to some category of content-based speech restrictions or they think that regardless of what the prior cases said or did, going forward, intermediate rather than strict scrutiny ought to apply to some category of content-based speech restrictions. In either event, they should have said what they were doing, why they were doing it and what the nature of the category is to which they think proportionality analysis rather than strict scrutiny applies. Their failure to do so leaves First Amendment doctrine quite messy.

One might try to salvage the pre-existing doctrine by saying that there remain seven votes on the Court--Kennedy's four plus the dissenters (Justice Alito joined by Justices Scalia and Thomas)--for the proposition that strict scrutiny applies to content-based restrictions on speech outside any unprotected category. After all, the dissenters did not say that the Stolen Valor Act satisfies strict (or intermediate) scrutiny. In their view, knowingly false statements of simply verifiable factual propositions receive no free speech protection, at least where those false statements "inflict real harm and serve no legitimate interest."

That may work for now, and so the doctrinal test announced by the plurality probably remains the right answer for the bar exam. But the dissent is troubling for different reasons. The dissent's proposed categorical exception for falsehoods is potentially enormous--and the limiting principles the dissent proposes do not appear very robust. Whether a category of falsehood inflicts real harm or serves a legitimate interest will often be in the eye of the beholder. Could Congress adopt criminal penalties for those who falsely claim to have: graduated from some particular university; given blood; or bowled a 300? Each of these claims and countless others can be said to "inflict real harm and serve no legitimate interest."

The dissent says that the majority's concern about overbreadth is not really a concern about free speech but a policy concern about overcriminalization. The dissent gives the following provocative illustration:
If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be reserved for conduct that inflicts or threatens truly serious societal harm. The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.
That's an intriguing argument but I think it is wrong nonetheless, because the First Amendment has always had, at its core, a concern about misuse of the criminal law. That is why, although civil libel actions are permissible if they satisfy the procedural and substantive constraints the Court has imposed under the NY Times v. Sullivan line of cases, criminal libel would violate the First Amendment. It's not all that surprising that Justices Thomas and Alito would take a position that is so weakly speech-protective, but in earlier times Justice Scalia was more of a free speech libertarian. That he joined this dissent strikes me as reflecting a substantial rightward drift in his views of free speech (so long as the free speech doesn't belong to corporations and rich guys spending money to influence elections, in which case he, and Justices Thomas and Alito, for that matter, are back in the libertarian fold)!

17 comments:

The Dismal Political Economist said...

We all understand the fervor for and reverence of 1st amendment rights to free speech, but I think the majority opinion got this wrong. Mr. Dorf’s distinction between speech which is subject to civil law prohibitions and speech which is subject to criminal law prohibitions is important but it is not a valid point in the argument.

This is because the 1st amendment does not make such a distinction, it does not provide for situations where speech may be subject to civil penalties and not be subject to criminal penalties. Such a distinction is a governing decision, and an important one but it is not a Constitutional one. To introduce such a distinction into the debate is to some extent to unilaterally amend the 1st amendment to give it a characteristic which it does not possess.

Like every other right granted under the Constitution, the right to free speech is not unlimited. It is a crime, for example to lie to a Federal official. Does this mean that a person can claim military honors in all arenas with impunity, but can go to jail if the person claims such honors when being interviewed by the FBI?

A country can have free political speech and much more stringent controls on libel and uttering false statements in public (see Britain for example). The Founders provided Constitutional protection for free political speech. It is difficult to see how they provided protection for a knowing and deliberate lie that damages the military heroism and service of millions of Americans.

The core of the argument against this decision is this

“knowingly false statements of simply verifiable factual propositions receive no free speech protection, at least where those false statements "inflict real harm and serve no legitimate interest."

It is almost impossible for many of us to see how that is not true.

Michael C. Dorf said...

DPE: Your point might be a good one if we were starting from scratch but the principle that the mere falsity of speech is sufficient for a criminal sanction has long been rejected. One can arguably trace the proposition to the Zenger trial, which formed an important part of the background for the 1st Amendment. The historical judgment that the Sedition Act was unconstitutional also reflects this principle. And certainly so does NY Times v. Sullivan. You--like Justice Alito in dissent--try to distinguish between "merely false" speech and false speech that inflicts real harm and serves no legitimate interest, but the latter exception can swallow the rule. Virtually all false speech can be said to inflict real harm. See, e.g., Sissela Bok or, more recently, Sam Harris on lying. That leaves the "no legitimate interest" prong doing all of the work, but outside of sexual speech, the Court has wisely abjured such a test as licensing censorship. I agree that one needs an explanation for the categories of lies that have been proscribed: e.g., lying to the FBI, in court, etc. I think the best explanation--implicit in the majority's analysis--is that such categories survive strict scrutiny.

I agree one could have a liberal democracy in which knowingly false statements of simply verifiable factual propositions receive no free speech protection, at least where those false statements inflict real harm and serve no legitimate interest. But just as I think UK libel law is dangerous for free speech notwithstanding that the UK remains a liberal democracy overall, I think adoption of such a principle in the US would be a major break with our free speech traditions, one I would not want to see.

The Dismal Political Economist said...

I think there is total agreement that the mere falsity of speech is not sufficient for the speech to be labeled a criminal act; falsity is a necessary but not sufficient condition. The issue is whether or not the additional condition that such speech be knowingly false and inflict real harm can (but not must) render such speech a criminal act.

Certainly this is the rationale that makes lying to a federal official a crime. Real harm is inflicted because such lying impedes the legitimate investigation of authorities charged with determining whether or not a violation of law has occurred. Note that the harm in this case is not person specific but is societal, just as the harm in lying about military honors is not person specific but is societal.

My point with respect to Britain was not in reference to their libel laws, which appear to be too far in the direction of not protecting free speech, but their law that lying in a political campaign can be a criminal act.

http://www.inbrief.co.uk/media-law/defamation-of-election-candidates.htm

“Under the Representation of the People Act 1983, there are criminal penalties in place for those convicted of making or publishing false statements about election candidates. This is to protect the democratic process and is in addition to the general, civil law on libel(which must obviously also be observed when reporting elections).”

This is not to say one has to support the British law, and their other severe restrictions on election campaigning, but only to note that such restrictions and criminal laws can co-exist in a democracy. A person may not agree with the British law, but it is not an unreasonable position to argue that such laws against deliberately lying about a political opponent enhance rather than detract from the democratic process.

Zenger and the various Sedition Acts throughout U. S. history and Sullivan all involve or are related to political speech/freedom of the press.. The Stolen Valor Act does not, except in the situation where candidates may claim military honors in order to improve their electoral chances. But even there the intent of the Act is not to restrict political speech.

I understand your point that to

“-try to distinguish between "merely false" speech and false speech that inflicts real harm and serves no legitimate interest, but the latter exception can swallow the rule.”

but I also think that the legislatures are wise enough to keep that from happening, and if not that the courts are wise enough to overturn laws when they do intrude into protected speech. Regulation of freedom of speech is an art, like all regulation of personal freedoms and is not a science. A hard and fast rule that lying is protected from criminality or that lying is not protected from criminality will not suffice.

Adam S. said...

The dissent changes the subject by confusing an identified constitutional value (free speech and prohibition on abridgement thereof) for a generalized libertarianism. I.e., potato chippers might argue substantive DP, but we'd probably say, "talk to your article I and II representatives" (although time, place, manner restrictions should be ok even if there were a right to free chipping).

What if the law, instead of criminal liability, created private right of action for all veterans (or award winners) or a qui tam authorization, with statutory damages of $10,000,000 for each proven violation? And, say, with a rule that specifically authorized all manner of civil discovery, all at the defendant's expense? Would we say that chilled speech in the pernicious way that the specter of criminal process does? Esp. in light of lower standard of proof in civil actions? I would guess yes, but interested to hear what others think.

The Dismal Political Economist said...

On Adam S.'s issue

Would speech that is not protected as a civil violation gain protection if the violation became a criminal one?

Jim Denken said...

And certainly so does NY Periods v. Sullivan. You--like Rights Alito in dissent--try to tell apart between "merely false" conversation and bogus conversation that inflicts actual damage and provides no genuine attention, but the latter exemption can take the guideline. Almost all bogus conversation can be said to create actual damage. See, e.g., Sissela Bok or, more lately, Sam Harris on relaxing. That results in the "no genuine interest" prong doing all of the perform, but outside of sex-related conversation, the Judge has sensibly abjured such a analyze as certification censorship. I acknowledge that one needs an description for the groups of can be found that have been proscribed: e.g., relaxing to the FBI, in trial, etc. I think the best explanation--implicit in the majority's analysis--is that such groups endure demanding research.buywindows7keys.com
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tomindavis said...

Had a nice laugh reading that last comment, some odd, garbled reverse translation of what Prof. Dorf stated in the actual post! Note how "strict scrutiny" magically becomes "demanding research."

With respect to the Velazquez case, DPE, you recognize at the end of your last comment that the harmful lies can swallow the mere falsities, but spin it as something adequately dealt with by our legislatures, or by artful judges. But that will not do. The analysis to decide first amendment challenges is never an easy task. But it should be abandoned (and rightly so) if it proves unworkable -- where, for example, countless lower court judges have to do all of the impossible line-drawing problems the professor explicates, and which you concede. The Court here rightly sought to avoid that fraught outcome, perhaps recognizing that they were meant instead to alleviate those national lower court headaches. This is especially the case when it concerns the First Amendment. The plurality was right to take this guarded position, and to ask for more in future legislation and litigation.

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