U.S. Supreme Court

Chemerinsky: The First Amendment and the Right to Lie

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Erwin Chemerinsky

With all the attention on June 28 focused on the U.S. Supreme Court’s ruling on the Patient Protection and Affordable Care Act, another decision that day, United States v. Alvarez, largely escaped notice. In Alvarez, the court declared unconstitutional the federal Stolen Valor Act as violating the First Amendment. Perhaps most important, the court made clear that there is generally a First Amendment right to lie.

The Stolen Valor Act makes it a federal crime for a person to claim falsely to have received military honors or decorations. The act is very broadly written. For example, there is no intent requirement in the statute. If a person mistakenly says that he received a Medal of Honor, but it was really a Purple Heart, that violates the law. There is no requirement that the lie be publicly uttered. If a person, say on a date, lies to impress, that violates the law. Even satire or fictional depictions, as in the film Forrest Gump, would seem to violate the statute.

Xavier Alvarez was a member of a water district board in Claremont, Calif. Justice Anthony M. Kennedy began his plurality opinion by saying: “Lying was his habit.” At his first public meeting as a member of the board, Alvarez introduced himself by saying: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the congressional Medal of Honor. I got wounded many times by the same guy.”

This was untrue, and Alvarez’s lie was quickly exposed and ridiculed in a local newspaper and on blogs. He also was indicted for violating the Stolen Valor Act and pleaded guilty, while reserving his right to appeal and challenge the constitutionality of the Stolen Valor Act.

The core of the government’s argument to the Supreme Court was that false speech adds little of value to society and thus is generally without First Amendment protection. In its brief, the government argued that false statements “have no First Amendment value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully protected speech.”

Six justices rejected this claim and declared the Stolen Valor Act unconstitutional. However, there was no majority opinion. Justice Kennedy wrote for a plurality of four; his opinion was joined by Chief Justice John G. Roberts Jr. and by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Justice Kennedy explained that the Stolen Valor Act is a content-based restriction on speech; whether it applies depends entirely on what is said. Justice Kennedy said that content-based restrictions on speech must meet the “most exacting scrutiny.”

Perhaps most important, Justice Kennedy’s plurality opinion rejected the government’s claim that lies are generally without First Amendment protection. Justice Kennedy acknowledged that prior decisions discussing defamation and fraud had allowed punishment of false speech, but he said that the court “has never endorsed the categorical rule the government advances: that false statements receive no First Amendment protection.” He expressly “reject[ed] the notion that false speech should be in a general category that is presumptively unprotected.” He said to allow the government to punish false speech would have a chilling effect on expression.

Justice Kennedy’s opinion then went on to explain that the Stolen Valor Act failed “exacting scrutiny.” He said that the government failed to offer any evidence that “the public’s general perception of military awards is diluted by false claims such as those made by Alvarez.” He said that true speech is the best remedy for false speech. He added that the government could create a database listing those who have received military honors and thus allowing quick exposure of liars.

Justice Stephen G. Breyer concurred in the judgment, joined by Justice Elena Kagan. Justice Breyer disagreed with the strict scrutiny used by the majority and said that “in this case, the court’s term ‘intermediate scrutiny’ describes what I think we should do.” He also called this ” ‘proportionality’ review.” He agreed with the plurality and rejected the government’s claim that false speech is generally without First Amendment protection.

Indeed, Justice Breyer even defended the benefits of lying in some contexts: “False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth.”

Justice Breyer emphasized the breadth of the statute and the ability of the government to achieve its goals in narrower ways. For example, he observed, Congress might adopt a narrower law that prohibits falsely claiming a military honor with the goal of receiving a tangible benefit.

What is puzzling about Justice Breyer’s opinion is why he said that intermediate, rather than strict, scrutiny is appropriate. The law is clearly settled that content-based restrictions on speech must meet strict scrutiny and will be upheld only if they are proven to be necessary to achieve a compelling interest. Justice Breyer offers no reasons why he is applying a more deferential standard of review. Also, ” ‘proportionality’ review”—the label Justice Breyer uses to describe his analysis—never has been part of First Amendment analysis.

Justice Samuel A. Alito Jr. wrote a strong dissenting opinion, joined by Justices Antonin Scalia and Clarence Thomas. Justice Alito said that Congress was responding to an “epidemic of false claims about military decorations” and adopted “a narrow statute that presents no threat to the freedom of speech.” He accused the majority of breaking “sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest.”

The decision is important in a couple of respects. First, it is one of a number of decisions in the past two terms where the court has protected unpopular speech. In Snyder v. Phelps, decided in 2011, the court held that it violated the First Amendment to impose civil liability on those who went to the funeral of a person who died in military service and expressed a vile, anti-gay and anti-lesbian message. In Brown v. Entertainment Merchants, also decided in 2011, the court declared unconstitutional a California law that made it a crime to sell or rent violent video games to minors without parental consent.

What makes Alvarez surprising is that the Roberts court had generally rejected free speech claims when the institutional interests of the government were at stake, showing deference when the restrictions on speech were for the military or in schools or in prisons. In Alvarez, the court struck down the Stolen Valor Act, notwithstanding the government’s claim that it was important for the military.

Second, Alvarez is one of the court’s most emphatic statements that false speech is generally protected by the First Amendment and it is for the marketplace of ideas, and not for the government, to decide what is true and what is false. The protection of false speech, of course, is not absolute. There still can be liability for defamation and punishment for false advertising. But the six justices in the majority were clear that speech cannot be punished just because it is false.

Put most simply, Alvarez stands for the proposition that there really is a First Amendment right to lie.

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.

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