Posted in: Constitutional Law

As another law school academic year kicks off, we constitutional law professors (and our students) naturally turn our attention to the question of how best to understand—and teach—the Supreme Court’s most recent decisions.  In today’s column, the two of us focus on one of this summer’s biggest First Amendment cases—United States v. Alvarez.  (The case was nicely described and summarized in a column for this website by our fellow columnist Julie Hilden not long after it came down, and also insightfully analyzed by another Justia colleague, Mike Dorf, on his blog, Dorf on Law.)  Below, we offer our distinctive doctrinal assessment of the various opinions in the case, which may assist professors and students who are covering the case.

A Summary of the Doctrinal Moves That Were Made by the Justices in the Stolen Valor Act Case

At issue was the constitutionality of the Stolen Valor Act (SVA), a federal law that makes it a crime for a person to falsely represent that he or she has received a military decoration or medal.  The Court held that the law violates the Free Speech Clause of the First Amendment. There was no majority opinion for the Court:  Justice Kennedy wrote a plurality opinion joined by Chief Justice Roberts and Justices Ginsburg and Sotomayor; Justice Breyer penned a concurring opinion joined by Justice Kagan; and Justice Alito wrote a dissent joined by Justices Scalia and Thomas.

Justice Kennedy’s plurality opinion began by pointing out the obvious fact that the SVA is a “content-based” law insofar as its prohibitions turn on the specific content (i.e., lies about military decorations) of a person’s communications, and content-based laws are usually subject to exacting judicial scrutiny.  Justice Kennedy acknowledged that various categories of unprotected or lesser protected speech, such as threats, fighting words, incitement, etc., are defined by their content but may nonetheless be regulated by legislatures under a more lenient level of judicial review, but he insisted that there is no general category of “false statements of fact” that receives less than full First Amendment protection.

Justice Kennedy also admitted, however, that there is some language from some prior cases suggesting that false factual statements fall outside the First Amendment.  This language, understood in context, however, suggested only that the falsity of statements may be a relevant factor in the Court’s upholding the regulation of such speech, when the false speech actually does cause, or is likely to cause, cognizable harm to other persons (as in the context of defamation or fraud).  But past precedent does not establish that false factual statements comprise a category of unprotected speech.

Indeed, Justice Kennedy pointed out, if government could regulate false statements, free of constitutional constraint, simply because they are false, then government could prohibit a broad range of communications—including countless “white lies”—that people engage in every day.  “That governmental power,” he asserted, “has no limiting principle.”

Applying strict scrutiny to the content-based SVA, Justice Kennedy concluded that the statute was unnecessary to protect the integrity of federally conferred medals (even if that goal is an overriding or compelling governmental objective),  because the  constitutionally preferred remedy for bad, false speech is good, true speech.  In the case of the SVA, for example, private people and the government alike can, with their own speech, expose liars to be the scoundrels they are.  Inasmuch as there are means that are less restrictive than criminally prosecuting liars to accomplish the government’s interest of preserving the integrity of military honors, the SVA failed strict scrutiny.

Justice Breyer’s concurring opinion is far less conventional than Justice Kennedy’s.  Justice Breyer never mentioned, let alone emphasized, that the SVA is content-based.  Instead, he wrote his opinion as if there were no formal free speech doctrine in current use that constrains the decisions of judges.  He observed, without recognizing any doctrinal categories, that courts in free speech cases generally consider the interests of the speaker in freely communicating his or her message, the justifications that government advances for impairing freedom of speech, and the alternatives available to government to accomplish its goals.  Sometimes, after considering all of these factors, judicial review requires near-automatic invalidation of a law (under strict scrutiny); sometimes it requires the near-automatic upholding of the law (under minimum rationality/rational basis review); and sometimes it requires some form of proportionality or intermediate level scrutiny analysis.

According to Justice Breyer and his free-form balancing approach, the SVA should implicate intermediate scrutiny because: (1) the harm to speakers here (the “chilling effect” that inhibits speech) is limited insofar as the veracity of the prohibited speech, a simple factual assertion that the speaker has received a military decoration, is easily verifiable and does not involve contested matters of philosophy, religion, history, politics, or the like; (2) false assertions of fact contribute less to the marketplace of ideas than true assertions of fact do; and (3) government often has a good reason to prohibit false assertions of fact.

Although intermediate scrutiny isn’t “strict,” neither is it toothless, and Justice Breyer concluded that the SVA could not survive this standard of review.  Justice Breyer expressed concern about the breadth of the statute and recommended the enactment of a more finely tailored statute, perhaps one that required specific proof of harm to others or material advantage to the lying speaker before criminal prosecution could succeed.

Justice Alito’s dissent starts, naturally enough, from the doctrinal pole that is directly opposite that of the plurality.  The dissent (like the concurrence) barely mentions that the SVA is content-discriminatory; instead, what was essential to Justice Alito was that the statute was limited to knowingly false statements of facts that are directly within the personal knowledge of the speaker.  Such lies, the dissent argued, have no value and are thus not protected by the First Amendment. Therefore, the SVA, in Justice Alito’s view, should easily be upheld as constitutional.

What about other statutes that regulate other kinds of lies?  Justice Alito recognized that government prohibitions of some lies might also “chill” and suppress protected speech that is not false. In that case, the Court would review the prohibition rigorously for prophylactic reasons, not because the proscribed lies have First Amendment value, but instead because of the law’s impact on protected speech.

Finally, responding to the “slippery slope” concern that if lies are unprotected speech, the government might prohibit lying on an endless list of subjects—such as lying about college records, achievement or prowess in the arts or athletics, etc.—the dissent argued that such legislative abuses would be unlikely to occur, and in any case would be corrected by the political process:  “The safeguard against such laws is democracy, not the First Amendment.  Not every foolish law is unconstitutional.”

A Critique of the Court Doctrine That Was Forged in the SVA Case

We see essentially one overriding problem with all three of the opinions that were issued in Alvarez. They don’t really provide a clear answer to the key question that is presented by the case:  How should the First Amendment treat factual lies?

Certainly, if we look at the Justices’ writings collectively, because there was no majority opinion, we have no clear resolution of that question.  But more troubling still, even if the nine Justices were to rally around one of the three approaches that are offered in their various opinions, there would still be no coherent resolution of the issue of the First Amendment status of false factual assertions.  Why?  Because none of the three approaches really identifies a workable approach to dealing with false assertions as a general matter.

In other words, the confusion and lack of clarity that emerge from Alvarez result not only from the fragmentation on the Court, but also from the fuzzy quality of each of the opinions. Although one could (and we will) write a longer law review article explaining our sense of the shortcomings of each approach, we summarize our critique of the three opinions as follows:

The Plurality Opinion

Justice Kennedy’s opinion differentiated between harm-causing lies and non-harm-causing lies as a basis for holding that strict scrutiny governs the review of the SVA, but would not necessarily govern laws pertaining to other false statements, such as the law of defamation or the law of fraud.  But this is a very ambiguous distinction—who knows what kind or magnitude of harm would satisfy the plurality’s analysis?  Why, precisely, is the concern about the possible devaluation of military medals not a cognizable harm?

Relatedly, Justice Kennedy suggested that the fact that the regulated speech is a lie is often relevant to the First Amendment analysis, but he doesn’t say how it is relevant; indeed, he doesn’t seem to formally even take it into account in his application of strict scrutiny to the SVA.  Finally, Justice Kennedy doesn’t clarify how the regulation of lies that do (to his mind) cause harm should be evaluated.  Do they never warrant strict scrutiny?  If they warrant some lower level of scrutiny, what is that level?  For example, our regime of regulating defamation doesn’t seem to map onto the strict/intermediate/rational basis scrutiny grid very well, and yet the plurality never tries to harmonize its approach here, in the SVA case, with our treatment of lies in the defamation context.

The Concurrence

The primary problem we see with Justice Breyer’s invocation of intermediate scrutiny to review the SVA’s prohibition of false statements of fact is that the trigger for invoking that scrutiny seems so nebulous.  The big knock on intermediate scrutiny generally is that it is too malleable and indeterminate in its application.  If the very basis for invoking it is also a malleable and indeterminate amalgam of factors (Justice Breyer’s opinion offers only vague intuitions about the value of particular speech and the generally good reasons government might have to regulate it), then the problem of subjectivity and unpredictability is exacerbated.

To be clear, we do not necessarily oppose subjecting false statements of fact to intermediate scrutiny, but if that occurs, such scrutiny should apply to the entire category of false statements of fact, not just those false statements that strike Justice Breyer as being of particularly low value, the prohibition of which further important government interests.

In other words, categories and categorical analysis have served free speech values well, and abandoning categories in favor of an unstructured, ad hoc assessment of the kind that Justice Breyer undertakes is problematic (even if he ends up upholding and striking down most of the same laws we would.)

The Dissent

Again, according to the dissent, all lies are unprotected speech unless they chill protected speech. But what happens if they do chill protected speech? Should strict scrutiny apply?  That’s not what we do in the context of defamation. Thus, like the other opinions, the dissent does not adequately locate this dispute about false facts in the larger setting of cases—including defamation cases—in which the Court has grappled with false assertions of fact in other areas.

Also, the dissent provided no limiting principle for the review of regulations of lies that do not chill protected speech. The only check on such laws would then be political accountability.  And that’s not an adequate response for many folks—perhaps particularly so when it comes from Justices who insisted upon the need for limiting principles and decried the unreliability of political accountability when they dissented in the health care case, decided the very same day as Alvarez.