The Watcher Cat

The Watcher Cat

Tuesday, July 3, 2012

Lying For Fun (But Not Profit!)

I got so caught up in the other end of term cases that I missed commenting on one on a subject near and dear to my heart--the First Amendment's Free Speech Clause, which was given a strong, pro-free speech turn in United States v. Alvarez, also on the last day of the Term. In Alvarez, a divided Court struck down the Stolen Valor Act, which made it a crime to falsely claim receipt of military decorations and medals, and provided for an enhanced penalty for offenses involving false claims to have received the Congressional Medal of Honor, even when no financial gain resulted therefrom.

The Court split three ways: Four Justices (Kennedy, Roberts, Ginsburg and Sotomayor) found the statute unconstitutional as a content-based restriction on speech. This was the most predictable outcome; false statements have not been deemed worthy of constitutional protection when they cause some kind of legally cognizable harm. But even there, mere falsity is not enough--harm and some level of intent is required. (Think libel in New York Times v. Sullivan). Here, you have falsity and intent--presumably a speaker who is deluded but in good faith really believes the false statement to be true falls outside the Act. But what compelling state interest is there here, and how does this Act narrowly serve it?

The plurality opinion treated this like any other free speech case, applying strict scrutiny. Justices Breyer and Kagan would apply intermediate scrutiny--generally not applicable in First Amendment cases, but they argue that in essence that the restriction is viewpoint neutral, regulating only purported statements of fact, should require a lesser showing to support it. They base this on several statements in past decisions that false statements are not protected speech, and then concur in the judgment on the ground that the Government could have found a more narrow way of serving the interest it had in preventing masquerading as an honored veteran than the Act, which criminalized even statements within family circles.

This is another example of Breyer being willing to water down the First Amendment--he borrows from cases decided in areas such as public forum analysis, speech restrictions on public employees--areas where the Government has interests other than those traditionally of the sovereign, but rather those of an employer, landlord and even trustee--and uses them to create a free-floating reasonableness rule. In Bartnicki v. Vopper (2001), Breyer was willing to engage in a balancing test in which a generalized interest in privacy as against other citizens, not the government, could be weighed against the constitutional right of free speech, and might, on a proper showing prevail. In other words, an interest not within the constitution could outweigh an explicit constitutional right. Regrettably, Kagan joined the concurrence, indicating that, perhaps, this undefined standard could creep into First Amendment law. To my mind, that disserves the constitutional text, history, and opens the door to abuse, as I have explained at no doubt tedious length.

The minority--Alito, Scalia, and Thomas (who's surprised? Scalia actually was pro-free speech years ago, to be fair)--basically tracks the Rehnquist dissent in Texas v. Johnson that Scalia refused to join back then. What a difference a quarter century makes.

A good decision, but with worrisome overtones.

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