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)!