It is a busy time at the Roberts Court. In addition to wrestling with the health care hullabaloo, and examining the federal government's pre-emption of immigration laws, the Court is also mulling over a significant First Amendment issue, which could either further vindicate or vitiate the Court's reputation as a defender of free speech rights. The issue involves the Stolen Valor Act (SVA), which prohibits falsely representing either verbally or in writing the receipt of a military award. The SVA prohibits reprehensible speech, but also implicates the First Amendment's restriction on passing any law abridging free speech. Amid many divergent viewpoints, the main divide is whether the First Amendment protects false speech.The US Court of Appeals for the Ninth and Tenth Circuits voiced both sides of this debate in their respective decisions to strike down, United States v. Alvarez, and uphold, United States v. Strandlof, the SVA.
In Alvarez, the Ninth Circuit held that the First Amendment generally protects false speech, with exceptions for a few narrow categories of speech. Among these categories are "certain subsets of false factual statements, carefully defined to target behavior," such as defamation or fraud. This approach relies upon the Supreme Court's decision in United States v. Stevens, where the Court not only described a discrete list of categories of unprotected speech, but also hinted that the list was nearly finite.
Conversely, the Tenth Circuit stated in Strandlof that, "knowingly false factual statements are not intrinsically protected under the First Amendment," while acknowledging that some protection exists to ensure "breathing space" for protected speech. Those espousing the "breathing space" analysis rely on considerable dicta from the Supreme Court, placing false statements of fact outside the ambit of First Amendment protection. During oral arguments in Alvarez, Justice Scalia seemed to agree with this position, stating that he believed there was no "First Amendment value in falsehood."
Both positions present problems. Relying on Stevens for a finite list of proscribable speech leaves other forms of false speech potentially subject to strict scrutiny. As noted by their amicus brief [PDF] in Alvarez, 20 states identified various state laws, such as outlawing bomb-threat hoaxes and impersonating a police officer, that are unrelated to either defamation or fraud, but whose proscription is important to a well-ordered society. Stevens' categories of unprotected speech also do not include false statements to law enforcement officers, perjury, or false distress calls to the Coast Guard, but these categories of speech also seem to be legitimate targets of government regulation.
Conversely, if the government may regulate speech based solely on its falsity, vast swaths of speech would suddenly be amenable to government scrutiny. Chief Judge Kozinski of the Ninth Circuit aptly characterized this "ever-truthful utopia" as "terrifying," and went on to raise the specter of government prosecutions for "career advancement ('I'm sooo lucky to have a smart boss like you') ... to set up a surprise party ('I need help moving the piano') ... or to maintain innocence ('There are eight tiny reindeer on the rooftop')." Kozinski recognized that "[s]aints may always tell the truth, but for mortals living means lying."
However, most false speech is proscribed because of its injurious effects. The differences appear in the quantum of proof required before the speech is prohibited. When one individual deceives another individual in a private transaction, the courts require proof of actual harm before civil or criminal liability attaches. For example, in Illinois ex rel. Madigan v. Telemarketing Associates, Inc., the Court required not only fraudulent intent on the part of the speaker, but also detrimental reliance on the part of the listener. Additionally, in any tort action involving speech, such as defamation or infliction of emotional distress, the plaintiff must establish actual injury to justify a damage award. The listener's reliance or the tort victim's injury serves an evidentiary function, separating the potentially harmful speech from actually harmful speech.
When the speaker deceives the government, by contrast, there is a presumption of harm because the speaker is damaging the integrity of the governmental process. While federal law criminalizes false statements to federal officials, it does not require the federal official to act on or even credit the false statement. The false statement need only be "material," which means the statement "must have 'a natural tendency to influence, or [be] capable of influencing, the decision of the decision-making body to which it was addressed.'" Similarly, a grand jury need not actually believe a false statement for a lying witness to be liable for perjury.
While the SVA regulates speech between private individuals, it does not require the listener to suffer any injury. Thus, if it is to be justified at all, it must be justified by a law requiring some detriment to the functioning of government processes.
At oral argument in the Supreme Court, Solicitor General Verrilli stated that allowing fakers to claim unearned military honors debases the meaning of the award. As a military officer, I completely agree with this statement. When somebody claims an unearned award, it deeply discounts the incredible dedication required to receive that award legitimately. Our nation's finest, members of our armed forces, should not have their achievements cheapened by charlatans while their government, as a representative of a supposedly grateful nation, stands idle, powerless to address the misappropriation of powerful symbols of courage and character. If courage is the coin, then falsehood cannot be the currency.
In spite of this apparent harm, however, the magnitude of the problem, at least by the evidence in the legislative history, does not warrant the drastic step of restricting speech wholesale. Moreover, the logical implication of upholding the SVA is that the government may restrict false speech so long as the government interest is sufficiently strong and well-articulated. Yet the Court has characterized such thinking as "startling and dangerous." In Stevens, the Court stated that the "First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits." Although the litany of horribles postulated by Chief Judge Kozinski might not come to pass, the concept that the government may criminalize speech simply because it is false is antithetical to First Amendment freedom.
Besides, the SVA is hardly the only means by which the government can protect the integrity of military honors. For example, Congress could focus on the harm to deceived individuals, and amend the SVA to require a listener's detrimental reliance on the false claim, and thus, transform the SVA into a kind of constitutionally acceptable anti-fraud statute. Alternately or perhaps concurrently, Congress could address the harm to the governmental processes, hold comprehensive hearings, and solicit the views of military commanders and others to establish the existence vel non of an epidemic of faux military honorees.
Although the ends of the SVA are laudable, the means need to be refined to comport with the First Amendment. It is no small irony that the very principles of the First Amendment, principles defended at great personal risk by our military personnel, could serve to restrict the government's ability to honor those same military personnel. Yet, there is another side: it is a more fitting tribute to the sacrifice of our men and women in uniform to ensure that our liberties are respected and preserved by careful and close scrutiny of any government action restricting a citizen's right to speech.
Jeff Barnum is a third year law student at the University of Washington School of Law, and a Lieutenant in the United States Coast Guard.
The opinions expressed herein are solely those of the author.
Suggested citation: Jeff Barnum, Amending the Stolen Valor Act to Protect Free Speech, JURIST - Dateline, April 28, 2012, http://jurist.org/dateline/2012/04/jeff-barnum-stolen-valor.php.
This article was prepared for publication by Leigh Argentieri, an assistant editor for JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org