U.S. Supreme Court

Chemerinsky: Supreme Court Weighs First Amendment, the Stolen Valor Act and the Protection of Lies

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Erwin Chemerinsky

One of the more fascinating cases on the U.S. Supreme Court’s docket this term involves the constitutionality of the federal Stolen Valor Act, a law that makes it a crime for a person to falsely claim to have received a military medal or decoration. In United States v. Alvarez, argued Feb. 22, the court will decide whether the First Amendment protects such false speech.

The court has not been consistent as to whether there is First Amendment protection for lies; it has very much depended on the context. In New York Times v. Sullivan, decided in 1964, the court stressed that there needs to be First Amendment protection for some false speech so that there is “breathing space” for freedom of expression. The court also held that defamatory speech about a public official, speech that is false and injurious of the person’s reputation, is protected unless it was uttered with “actual malice.” In 1982’s Brown v. Hartlage, the court explained that false statements “are inevitable in free debate.”

But in other areas, false speech has no First Amendment protection. For example, false advertising can be constitutionally prohibited and punished. Many federal laws, ranging from securities laws to perjury statutes, prohibit false statements.

No prior Supreme Court case, though, ever has dealt with a law like the Stolen Valor Act, which very broadly prohibits lies about military awards or medals. There is no intent requirement in the statute; even a statement that was an honest mistake would violate the statute.

Nor does the law require that the statement be made publicly or that it be believed. And there is no requirement that there be any proof of harm from the statement or that it be made for the purpose of receiving something of value. As Judge Jerome Holmes of the 10th U.S. Circuit Court of Appeals explained, the act “covers falsehoods that are patently harmless, such as Grandpa’s puffed-up war stories over Thanksgiving turkey.”

There are no exceptions for satire or theatrical performances. Even a play or a movie scene depicting someone receiving a medal would violate the terms of the law.

Despite the law’s breadth, even after oral argument it is difficult to predict what the court will do. On the one hand, several justices expressed support for the ability of Congress to prevent dilution of the prestige of medals and decorations by prohibiting individuals from falsely claiming to have received them. There is a long tradition of Supreme Court deference to the government in matters concerning the military. At oral argument, Justice Antonin Scalia seemed most clearly to take this position.

On the other hand, the Stolen Valor Act is a content-based restriction of speech: it applies only if the content of the speech is a false claim about having received a military medal or decoration. It is firmly established that content-based restrictions of speech are allowed only if shown to be narrowly tailored to serve a compelling government interest. There was no evidence, before Congress or in the courts, that false claims about military medals or decorations has the slightest adverse effect on their prestige or causes any other harm. Given its breadth, it is difficult to see the Stolen Valor Act as being narrowly tailored.

Nor is it credible to think that the Stolen Valor Act is needed to preserve the incentive for acts of bravery. As a federal district court explained in striking down the statute: “To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by considerations of whether a medal may be awarded simply defies my comprehension. Indeed, the qualities of character that the medals recognize specifically refute the notion that any such motivation is at play. I find it incredible to suggest that, in the heat of battle, our servicemen and women stop to consider whether they will be awarded a medal before deciding how to respond to an emerging crisis.”

It seems unlikely that the court will try to resolve the underlying general question of when the government can criminally prohibit and punish the making of false statements. The answer to that question has to be that it depends on the context; sometimes lies are protected by the First Amendment and sometimes not.

Rather, the case is likely to turn on whether the court wants to rewrite the statute by interpretation. For example, the Stolen Valor Act has no scienter requirement. A person who makes an honest mistake, claiming to have received one medal when in reality it was a different one, has violated the act. Will the court read such a requirement into the law and limit its application to intentional violations?

Similarly, there is no exception in the law to the use of medals in satires or for purposes of making a political statement. Justice Sonia Sotomayor made exactly this point at oral argument. Solicitor General Donald Verrilli, who was defending the law, replied, “t would depend on whether that was, that expression, was reasonably understood by the audience as a statement of fact or as an exercise in political theater. If it’s the latter, it’s not within the scope of the statute, and it wouldn’t be subject to liability.” But the law draws no such distinction. Will the court read it into the law?

As written, the unconstitutionality of the Stolen Valor Act should be an easy question. But the court has narrowly construed federal laws in order to save them. The court frequently has said that statutes should be interpreted so as to avoid constitutional doubts. There is a difference, though, between interpreting a statute narrowly and rewriting it. The ultimate question for the justices is whether the Stolen Valor Act can be saved by interpretation.

Still, the underlying issue is a fascinating one and unlikely to be resolved by this case: What is the First Amendment protection for lies?

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.