Instant Analysis: United States v. Alvarez

I write this analysis at 35,000 feet, somewhere over Pennsylvania, as I continue my flight towards Jolly ‘Ol England.

Today, the Supreme Court per Justice Kennedy found that an act of Congress was “unprecedented,” with “no clear limiting principle,” and violated the Constitution. No, it wasn’t the ACA. It was the Stolen Valor Act. Ripoff.

So there were three opinions. Justice Kennedy wrote the plurality for the Chief, Ginsburg, and Sotomayor. Breyer wrote separately, joined by Kagan. Alito dissented, joined by Scalia and Thomas.

Kennedy Plurality

What prose. This opening paragraph reads like something the Chief wrote. It is not very Kenendy-esque.

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Con-gressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.

Remember when the 10th Circuit decided a case on this point while Alvarez was pending? Yeah. The Court did take note of that.

After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act consti- tutional. United States v. Strandlof, 667 F.3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question of the Act’s validity.

The Court noted that this case, in many respects, is a follow-up to Snyder v. Phelps.

This is the second case in two Terms requiring the Court to consider speech that can disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement that the speaker held the Medal was an intended, undoubted lie.

The Court, interestingly tied the compelling interest of honoring the soldiers to the “precepts of the Constitution for which they fought.” This makes me think, a bit, of Stevens’s dissent in Texas v. Johnson (flag burning case) where he came out in the opposite direction with respect to free speech.

And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

After reciting a long list of “content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expres- sion] long familiar to the bar,’”
the Court notes that “Absent from those few categories where the law allows content-based regulation of speech is any general excep- tion to the First Amendment for false statements.”

The Court also commented on the wide-ranging implications of this statute, which seem to apply anywhere, anytime. And this statute is *UNPRECEDENTED*. Not the ACA. The Stolen Valor Act Case. No doubt this was Kennedy gigging the Chief. Who knows.

Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered con- versations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en- tirely without regard to whether the lie was made for the purpose of material gain.

Not only is this law unprecedented, there is “no clear limiting principle.” I think the wrong case got the slippery slope argument.

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern- ment authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sus- tained, there could be an endless list of subjects the Na- tional Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the in- terest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give govern- ment a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

And it is Alvarez, and not Jones (GPS case) that gets the citation to 1984!

So Kennedy lists a number of recipients who have received the Medal of Honor. Kinda reminds me of Justice Blackmun’s listing of great baseball players in Flood v. Kuhn.

The Court stressed that “counterspeech” suffices to achieve the government’s interest. Total paen (and citation) to Holmes’s marketplace of ideas theory. And now we know that the marketplace of ideas Includes trolling “online.”

The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refuta- tion, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation . . . The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the unin- formed, the enlightened; to the straight-out lie, the simple truth. . . . See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap- plied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalien- able rights of the person. And suppression of speech by the government can make exposure of falsity more diffi- cult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orches- trate public discussion through content-based mandates.

Mandates! Inalienable rights of the person! Civic Duty! Classic Tony. And he goes off on a stronger libertarian rant (I think here Justice Breyer must have parted company)

The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi- tion. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.

And AMK tells Congress they can fix this problem by putting that stuff in the Cloud!

In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restric- tive means among available, effective alternatives.” Ash- croft, 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Con- gressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individ- uals have already created databases similar to this, see Brief for Respondent 25, and at least one data- base of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the De- partment of Defense investigated the feasibility of estab- lishing a database in 2008, the Government “concluded that such a database would be impracticable and insuf- ficiently comprehensive.” Brief for United States 55. Without more explanation, it is difficult to assess the Gov- ernment’s claim, especially when at least one database of Congressional Medal of Honor winners already exists.

And social costs!

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find re- spondent’s statements anything but contemptible, his right to make those statements is protected by the Consti- tution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.

Breyer Concurring Opinion

Breyer, along with Kagan, concurs in judgment only, and rejects a “strict categorical analysis.”

I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 4– 10. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Govern- ment can achieve its legitimate objectives in less restric- tive ways

Breyer’s entire analysis rests on an ad-hoc balancing of what he calls “speech-related harms” along with many other interests. I could call these social costs, I suppose, though perhaps the thin air up here is diminishing my thinking capacity.

In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifica- tions, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and im- portance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to deter- mine whether the statute works speech-related harm that is out of proportion to its justifications.

Breyer also (aptly) labels strict scrutiny as “near-automatic condemnation” and rational basis review as “near-automatic approval.” This sounds in Marshall’s (or was it Brennan’s–dammit, can’t Google up here) theory that strict scrutiny was strict in theory, but fatal in fact.

But what is most fascinating here is that Kagan joins onto Breyer’s balancing tests. Not what I expected from a former First-Amendment scholar.

Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter. Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas. And the government often has good reasons to prohibit such false speech. See infra, at 5–7 (listing examples of statutes and doctrines regulating false factual speech). But its regulation can nonetheless threaten speech-related harms. Those circumstances lead me to apply what the Court has termed “intermediate scrutiny” here

Breyer reject’s Holmes’s marketpalce of ideas theories. No Oliver Wendell Breyer here. Though, this echoes Breyer’s opinion in Sorrell.

Alito Dissent

Alito continues his reputation as the least-ardent supporter of the First Amendment speech (not exercise) clause. More broadly, Scalia and Roberts switched places with EMA. Scalia authored the majority opinion in EMA. Roberts concurred with Alito. Here, the Chief joins the majority opinion, but Scalia dissents.

By holding that the First Amendment nevertheless shields these lies, the Court breaks 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. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.

Alito disputes that a database would be feasible, and that “counterspeech” cannot resovle this issue. He also knocks the plurality, and Breyer, for suggesting that Congress try again till it gets it right.

JUSTICE BREYER also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it even- tually passes a law that draws the line in just the right place.

Alito is not concerned about the majority’s slippery slope, and risks of limiting false statements about history or science.

In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect. Tell- ingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.

Alito further rejects the fears of slippery slope as really an attack on over-criminalization.

In any event, if the plurality’s concern is not entirely fanciful, it falls outside the purview of the First Amend- ment. The problem that the plurality foresees—that legislative bodies will enact unnecessary and overly intru- sive criminal laws—applies regardless of whether the laws in question involve speech or nonexpressive conduct. 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 re- served 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.