Prof. James Weinstein (Arizona State) and I filed an amicus brief last week in United States v. Alvarez, the Supreme Court’s Stolen Valor Act case. If you’re interested in the First Amendment and knowingly false statements of fact, you might want to have a look at the brief, whether in PDF form or in the posts below, which contain nearly all the substantive text (minus a few footnotes). Here’s the Summary of Argument:
Consistent with this Court’s repeated observation that “there is no constitutional value in false statements of fact,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), various state and federal laws restrict a wide range of knowingly false statements, and not just the familiar categories of defamation, fraudulent solicitation of money, and perjury. Most of these laws are broadly accepted as constitutional, and we expect that this Court will be-lieve that the laws should indeed be upheld.
The best way to do so would be for this Court to (1) treat knowing falsehoods as a categorical excep-tion to First Amendment protection, while (2) recognizing some limitations to this rule (for instance, with regard to statements about the government, science, and history) in order to avoid an undue chilling effect on true factual statements, statements of opinion, or other constitutionally valuable expression. Recognizing such a general First Amendment exception for knowing falsehoods will avoid a proliferation of First Amendment exceptions, and of cases upholding content-based speech restrictions under strict scrutiny — developments that would threaten the coherence of free speech doctrine and dangerously dilute the protection currently provided to valuable speech by the strict scrutiny test.