Alvarez Brief, Part I: State and Federal Laws Criminalize or Impose Civil Liability for Many Categories of Knowingly False Statements

We begin by outlining some of the ways that the law punishes knowing falsehoods — restrictions that are generally seen by courts as not violating the First Amendment.

We use the term “knowing falsehoods” in this brief as shorthand for false statements of fact that the speaker knows are false, and that are reasonably perceived as factual assertions. We exclude from this category statements that are likely to be understood as fiction, humor, parody, or hyperbole, Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 14 (1970); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 57 (1988), rather than as false statements of fact. To our knowledge, the laws we discuss likewise exclude such statements, and we believe the Stolen Valor Act, properly interpreted, does so as well. See United States v. Perelman, 658 F.3d 1134, 1138 (9th Cir. 2011) (holding that the provision of the Stolen Valor Act that bears the unauthorized wearing of medals, 18 U.S.C. § 704(a), should be interpreted as limited to situations where the wearer “has an intent to deceive”).

We do not discuss how the law should treat statements that result from an honest mistake, whether negligent or without fault, on the speaker’s part; most of the laws described below do not cover such innocently mistaken statements. We also do not specifically discuss recklessly false statements, though we note that recklessly false statements are generally treated similarly to knowingly false statements under this Court’s “actual malice” standard, New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

Here then is a partial list of the categories of knowing falsehoods that are restricted, largely uncontroversially:

1. Defamatory falsehoods, which is to say knowing falsehoods that injure an individual’s reputation. New York Times Co. v. Sullivan (holding that such speech is generally unprotected).

2. Perjury, false statements under oath in government proceedings. Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) (stating that such speech is constitutionally unprotected).

3. Fraudulent attempts to obtain money, including within otherwise fully protected speech — such as charitable solicitation — and not merely within the less protected category of “commercial speech.” Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003) (holding that such speech is constitutionally unprotected).

4. Speech actionable under the false light tort, which covers even nondefamatory but offensive knowingly false statements about another person. Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974) (holding that this cause of action is constitutionally permissible); Time, Inc. v. Hill, 385 U.S. 374 (1967) (likewise). In some states, this tort is limited to speech that is both knowingly false and “[a]n unwarranted and/or wrongful intrusion * * * [into plaintiff’s] private or personal affairs with which the public had no legitimate concern,” Cantrell, 419 U.S. at 250 n.3. But in other states the tort has no such limitation, and extends even to statements about a person that do not deal with matters that are normally confidential or embarrassing, e.g., Hill, 385 U.S. at 385, 390, though sometimes with the limitation that the falsehood be “highly offensive” to a reasonable person, Restatement (Second) of Torts § 652E.

5. Intentional infliction of severe emotional distress through knowing falsehoods, even in the absence of defamation or invasion of privacy. See Hustler, 485 U.S. at 56 (allowing recovery in such cases). The classic example of such an actionable statement is knowingly falsely telling someone that his or her spouse “has been badly injured in an accident,” Restatement (Second) of Torts § 46 ill. 1.

6. Trade libel, at least when limited to knowingly false statements disparaging a product (even outside the special context of commercial advertising), and the related tort of slander of title, at least when limited to knowingly false statements denying a person’s ownership of property. Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990) (holding that the trade libel tort is constitutional, so long as “actual malice” is shown); SCO Group, Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1296 (D. Utah 2010) (likewise as to slander of title). This is so even though trade libel does not injure the individual dignitary interests that have long justified defamation law, Milkovich v. Lorain Journal Co., 497 U.S. 1, 22 (1990) (quoting with approval Rosenblatt v. Baer, 383 U.S. 75, 92-93 (1966) (Stewart, J., concurring)).

7. Unsworn knowingly false statements to government officials, punishable under laws such as 18 U.S.C. § 1001 and state and federal laws prohibiting obstruction of justice or the making of false police reports. E.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) (upholding the constitutionality of § 1001); United States v. Konstantakakos, 121 Fed. Appx. 902, 905 (2d Cir. 2005) (noting that “deliberate falsehoods enjoy no First Amendment protection,” in the context of a prosecution for knowingly false statements on an immigration application); People v. Hanifin, 77 A.D.3d 1181 (N.Y. App. Div. 2010) (rejecting First Amendment challenge to defendant’s conviction for calling 911 to falsely claim that “he had gasoline and was going to set himself of fire”); State v. Bailey, 644 N.E.2d 314 (Ohio 1994) (holding that lying to a police officer in order to interfere with the officer’s attempt to apprehend defendant’s brother was obstruction of justice); Howell v. State, 921 N.E.2d 503 (Ind. Ct. App. 2009) (holding that falsely representing one’s identity in sending e-mails aimed at deceiving a police officer during an investigation was obstruction of justice). This likely includes knowingly false crime reports made to the public in general, if they seem certain to come to the attention of law enforcement officials. Haley v. State, 712 S.E.2d 838 (Ga. 2011) (rejecting First Amendment challenge to defendant’s conviction when defendant released YouTube videos claiming to be a serial killer and was then prosecuted for making a false statement on a matter within the jurisdiction of a state agency).

8. Knowing falsehoods likely to provoke public panic. Schenck v. United States, 249 U.S. 47, 52 (1919) (“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”); 47 C.F.R. § 73.1217 (banning knowingly false statements on broadcast radio or television that foreseeably cause “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties”); 18 U.S.C. § 1038(a)(1) (banning knowingly false statements claiming, among other things, that an attack involving weapons of mass destruction “has taken, is taking, or will take place”); United States v. Brahm, 520 F. Supp. 2d 619, 626-27 (D.N.J. 2007) (citing Schenck in upholding 18 U.S.C. § 1038(a)(1) against a constitutional challenge, in a case in which defendant posted a message on a Web site stating that the following month “there will be seven ‘dirty’ explosive devices detonated in seven different U.S. cities: Miami, New York City, Atlanta, Seattle, Houston, Oakland, and Cleveland. The death toll will approach 100,000 from the initial blast and countless other fatalities will later occur as a result from radio[a]ctive fallout.”).

9. Knowingly falsely representing oneself as a government official and acting in that capacity, even when this does not involve fraudulently depriving anyone of money or property. Thus, for instance, the federal statute barring impersonation of federal officials, 18 U.S.C. § 912, has been read to require only “that the defendants have, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct.” United States v. Lepowitch, 318 U.S. 702, 704 (1943). “[A] person may be defrauded although he parts with something of no measurable value at all.” Id. at 705.

Accordingly, this Court in Lepowitch upheld a conviction under a former version of 18 U.S.C. § 912 for defendant’s pretending to be an FBI agent and thereby causing someone to yield information about another person’s whereabouts. The Eight Circuit upheld a § 912 conviction for defendant’s pretending to be an FBI agent, including in conversations with his girlfriend, though the opinion does not report on any evidence that the pretense was the but-for cause of anyone’s giving defendant money or property. United States v. Robbins, 613 F.2d 688 (8th Cir. 1979). The Seventh Circuit upheld a § 912 conviction for defendant’s pretending to his landlady to be an FBI agent, apparently with no attempt to use the pretense to get money or property. United States v. Hamilton, 276 F.2d 96 (7th Cir. 1960). Likewise, the Kansas Supreme Court upheld a conviction under a Kansas false impersonation statute for defendant’s representing himself to a neighbor as an undercover state police officer, apparently with no attempt to use the pretense to get money or property. State v. Messer, 91 P.3d 1191 (Kan. 2004).

And courts have upheld similar statutes against a First Amendment challenge. Chappell v. United States, 2010 WL 2520627 (E.D. Va. June 21), for instance, upheld a state ban on impersonating a police officer. United Seniors Ass’n, Inc. v. Social Sec. Admin., 423 F.3d 397, 404, 407 (4th Cir. 2005), upheld a federal ban on any use of the words “Social Security” to falsely represent the material as authorized by the Social Security Administration, though the ban covered not just solicitation of money but also, for instance, posters seeking viewers for a television broadcast. And State v. Wickstrom, 348 N.W.2d 183 (Wis. Ct. App. 1984), upheld a state ban on falsely acting as a public officer, in a case where the actions included making public statements, making private statements, and filing documents falsely indicating that the speaker was a municipal judge or town clerk.

These statutes are not limited to impersonation of government officials who have coercive power such as that possessed by FBI agents or police officers. See, e.g., 18 U.S.C. § 912 (covering impersonation of any federal government agent); State v. Cantor, 534 A.2d 83 (N.J. Super. Ct. App. Div. 1987) (upholding conviction for defendant newspaper reporter’s impersonating a county morgue employee in order to get information about a homicide victim from the victim’s mother).

10. Knowingly falsely representing oneself as having a particular university degree or professional license, regardless of whether the false representation is intended to defraud a prospective employer or professional client. Long v. State, 622 So. 2d 536 (Fla. Ct. App. 1993) (upholding against First Amendment challenge a statute barring knowingly false claims of having a university degree); People v. Kirk, 310 N.Y.S.2d 155 (Cnty. Ct. 1969) (likewise, though reading the statute as limited to situations where there is an “intent to deceive”); State v. Marino, 929 P.2d 173 (Kan. Ct. App. 1996) (upholding against First Amendment challenge a statute barring knowingly false claims of having a professional license, as applied to a defendant who claimed to be a member of the Kansas bar when speaking on a television program to publicize a screenplay that he had written).

11. Knowingly providing a false social security number, even when there was no purpose to defraud anyone of anything of “pecuniary value,” and the statement is not made to government agents. E.g., United States v. Silva-Chavez, 888 F.2d 1481, 1483-84 (5th Cir. 1989); United States v. Manning, 955 F.2d 770 (1st Cir. 1992), abrogated as to other parts of the decision, as recognized by United States v. Gonsalves, 435 F.3d 64, 72 (1st Cir. 2006).

12. Knowing falsehoods to voters about the authorship or endorsement of political campaign materials, when the statements violate trademark law or other legal rules, even when no money is involved. E.g., United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997) (rejecting First Amendment arguments and upholding injunction against defendant’s using the name “United We Stand, America”); United We Stand America, Inc. v. United We Stand, America New York, Inc., 941 F. Supp. 39 (S.D.N.Y. 1996) (stating that the Lanham Act applies not just to deceptive uses of another organization’s name with respect to fundraising, but also with respect to “holding public meetings and press conferences” and “propounding proposals”) (quoting Brach Van Houten Holding, Inc. v. Save Brach’s Coalition for Chicago, 856 F. Supp. 472, 475-76 (N.D. Ill. 1994)); Tomei v. Finley, 512 F. Supp. 695 (N.D. Ill. 1981) (rejecting First Amendment arguments and enjoining Democratic candidates from using the acronym “REP,” as in “Vote REP April 7,” as shorthand for the Representation for Every Person Party, a name seemingly chosen precisely to deceive voters into thinking that the candidates were Republicans); Schmitt v. McLaughlin, 275 N.W.2d 587, 590 (Minn. 1979) (rejecting First Amendment arguments in holding that the defendant’s use of initials “DFL” in advertisements and lawn signs violated a state law barring false claims of support or endorsement by a political party, there the Democratic Farmer Labor party); People v. Duryea, 351 N.Y.S.2d 978, 988 (Sup. Ct. 1974) (dictum) (stating that a ban on false claims of endorsement by a political party would be constitutional), aff’d, 354 N.Y.S.2d 129 (App. Div. 1974).

13. Making a knowingly false statement about which office one currently holds in an election campaign. Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446 (Mich. Ct. App. 1986) (upholding against First Amendment challenge a statute banning false claims that one is the incumbent); Ohio Democratic Party v. Ohio Elections Comm’n, 2008 WL 3878364 (Ohio. Ct. App. Aug. 21) (upholding against First Amendment challenge a statute banning candidates from claiming to hold an office that they do not currently hold).