From today’s United States v. Strandlof (10th Cir. Jan. 27, 2012):
As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.
One judge dissents from the panel decision, reasoning:
The majority holds that such statements — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do.
The Supreme Court will have the last word on this, when it decides the same question this Term in United States v. Alvarez; but I suspect that the Tenth Circuit judges’ opinions in Strandlof, which are long and detailed, will be considered carefully by the Court.
rb1971 says:
One of the few cases where I think the 9th got it right while the 10th gets it wrong.
Footnote 3 is interesting to me, not just for the irony value, but because I would have thought (not being a litigator) best practice would have pushed the circuits to NOT decide cases where the same issue was under SCOTUS review.
January 27, 2012, 3:46 pmSoronel Haetir says:
Wouldn’t it make more sense for courts to hold such cases when SCOTUS is in the process of deciding the very question at issue? I have a hard time believing that any number of extra opinions are going to sway the justices from whatever decision they would have made anyway (though they may well use just about any material that bolsters that decision).
Putting out an opinion under these circumstances justs risks making more work for everyone involved. Whatever happened to conserving scarce judicial resources?
January 27, 2012, 3:49 pmCrunchy Frog says:
Why would the 10th Circuit care about making more work for SCOTUS, especially since in this case it is insuring a circuit split?
C10 wants this decided in the Supreme Court, and wants it decided in its favor.
January 27, 2012, 4:00 pmvalor is property says:
if it’s illegal to discriminate based on medals, awards, etc. what does it matter whether or not people claim they’ve been awarded one?
January 27, 2012, 4:21 pmangelatc (@AngelaTC) says:
I hardly ever comment because I am not a lawyer, and I don’t even watch them on TV.
The issue that troubles me here is that this seems to outlaw speech that doesn’t actually harm anybody.
Correct me if I am wrong, but fraud is already against the law, so if I were to tell potential investors that I was an former military woman with inside connections, I could get sued when the Pentagon predictably wouldn’t return my calls and my investors’ money was subsequently squandered on shiny things that benefited my needs.
Like I said, I’m not a lawyer, but the laws about libel and slander seem to only punish people when actual damage occurs. So I can call a politician a thief, but as long as nobody believes me, there’s not much he can do about it.
This law seems to protect people from….nothing important, and makes being an obnoxious idiot punishable by law.
January 27, 2012, 4:50 pmDilan Esper says:
I don’t think there’s any consensus among the courts about this. There are definitely courts that have held cases rather than deciding them, waiting for the Supreme Court to resolve an issue. I think that course is preferable, but you will see courts following the Tenth Circuit approach. (They won’t admit this, but there may be judicial ego involved as well, i.e., an attempt to get a free shot of writing a brief that might influence the Supreme Court.)
January 27, 2012, 4:52 pmAlex says:
It’s still pointless because the mandate will inevitably get stayed against Strandlof. For him, it means nothing what the 10th ultimately said. Thus, this is a purely advisory opinion.
January 27, 2012, 4:58 pmGreg Q says:
Why in the world would the 1st Amendment protect “false statements of fact”? How does allowing people to lie improve public discourse?
January 27, 2012, 5:17 pmDilan Esper says:
I will concede that it is not controlling here, but read the Supreme Court’s discussion of “breathing space” in New York Times v. Sullivan for a possible answer to this question.
January 27, 2012, 5:20 pmc.s.b. says:
Eugene is too polite to mention that the Tenth Circuit cites BOTH his amici briefs — one in Alvarez and one in Strandlof’s district court proceedings. Congrats!
January 27, 2012, 5:30 pmAnthony says:
First of all, whether the 1A should protect something is not strongly correlated with whether it actually does so. Secondly, you have the problem of correctly determining whether a statement is (a) false, and (b) made with knowing intent to deceive.
January 27, 2012, 5:32 pmTJM says:
I confess that I do not know as much about this case as I probably should, and I plan to go back to earlier posts and read the summaries of the Stolen Valor Act litigation.
Still, I fail to understand how knowingly making false statements of fact is protected by the First Amendment. If the Supreme Court rules that such statements are protected, wouldn’t this undercut most of the body of law relating to fraud?
January 27, 2012, 5:41 pmGreg Q says:
If you don’t know whether or not you were in the military, you probably need to be hospitalized for your own good.
If you have some legitimate dispute as to whether or not you won a certain medal, that’s a case you can make during trial, assuming a prosecutor is actually going to bring that kind of case.
I’m all in favor of giving “breathing room” or borderline cases, but this isn’t even remotely borderline. No?
January 27, 2012, 5:57 pmGreg Q says:
I guess I should have included the word “knowingly” in from of “false” (“lied” implies “knowingly false” rather than merely “false”, but I should have still made it clear).
So, let me re-ask the question: Why in the world would the 1st Amendment protect knowingly false statements? After all, even if you’re talking about a public figure, you can be sued for libel if you knew, or should have known, that the statement was false.
January 27, 2012, 6:01 pmTom Holsinger says:
I agree with rb1971 here. This could easily be directed at political speech such as The Onion’s satires or, for that matter, even the opinion comics such as _Bad Reporter_’s in the _San Francisco Chronicle_. Law enforcement should not be called upon to make opinions as to what is satire and what is meant to be taken seriously.
Consider that Senators John Kerry and John McCain had both been awarded medals for valor during the Vietnam War. It would have been in bad taste but obviously allowable political speech for demonstraters during those Senators’ 2004 and 2008 presidential campaigns to have dressed in uniform with replicas of those Senators’ medals to mock them.
What is the difference between that and the same guy claiming to have won a Distinguished Flying Cross (as McCain did) or a Silver Star (as Kerry did) in an attempt to convince someone that he really did win the DFC/SS?
January 27, 2012, 6:03 pmc.s.b. says:
Just a quick point to note that the 10th Circuit interpreted the statute to exclude satire or hyperbolic speech. And the demonstrator’s comments would be considered “speech that matters” as political speech.
January 27, 2012, 6:30 pmAnthony says:
I wasn’t making a statement about stolen valor in particular, I was making statements about restrictions of that type in general, since the statement from the court did not limit itself to the stolen valor act.
January 27, 2012, 6:30 pmKent Scheidegger says:
Agreed, especially the statement that the protection is needed for “erroneous statements honestly made.” 376 U.S., at 278. The protection is not for bald-faced lies, which is what this case is about.
Although the statute has no express mens rea requirement, the Court should imply one under the Morissette principle, as explained in our brief.
January 27, 2012, 6:35 pmTJM says:
Unless I am mistaken, I believe fraud usually requires that the statements are intended to induce another person to rely on the statement. Statements that are intended for purposes of mockery or sarcasm are excluded for exactly this reason. I have not read the act, so I do not know whether the crime is limited in this way. If it is, I cannot see how this law impacts political speech any more than criminal fraud would impact political speech.
January 27, 2012, 6:43 pmTom Holsinger says:
Almost all of the “body of law” concerning fraud involves CIVIL fraud. Most criminal fraud involves lost property, not “victimless” crimes (those against the State). Securities fraud is a civil charge involving statutory violations, and imprisonment is not an allowable penalty.
January 27, 2012, 6:49 pmPubliusFL says:
Wow, somebody’d better go let Bernie Madoff out of jail, quick!
January 28, 2012, 12:29 amMalvolio says:
Well, if judges had angels whispering in their ears, distinguishing truths from falsehoods, it wouldn’t be a problem, but then such celestial assistance would make a lot of things easier.
OK, how about this?
A few years from now, General Hawke, the senior military officer in Afghanistan, makes a statement to effect that President Muffley, is intellectually unqualified for his job as CinC. The President, naturally, removes the general from his post — and is so incensed that he orders that Hawke be stripped of the Medal of Honor he was awarded many years earlier for actions in, oh say, Granada.
Hawke decides to run against Muffley in the next election and gives a speech, describing himself as a Medal of Honor recipient, on the grounds that Muffley had no authority to retract a medal awarded in the name of the US Congress.
Muffley has Hawke arrested for violating the SVA. Of course, Hawke can argue his claim, that he was telling the truth, at trial, but you can imagine that a judge would be reluctant to set a precedent that people who believe they ought to be recipients of a medal be treated as if they had them.
I admit, a situation like this is unlikely, but I stand by the general principle, that we should be extremely reluctant to criminalize speech, even speech that we “know” to be false.
January 28, 2012, 12:32 amDilan Esper says:
Kent, I don’t think Sullivan is applicable for the simple reason that this is not a case involving libel of a public figure.
But you are wrong that “breathing space” only exists for unknowing falsehoods. In libel law, for instance, it also exists for statements that no reasonable person would take as factual. And it exists for statements that are intentionally false but do not cause reputational damage, at least against public figures (that’s Sullivan’s “no presumed damages” rule).
There are several “breathing space” rules in the First Amendment context, because there are good reasons NOT to make every false statement, or even every intentionally false statement, actionable. Lying may not be the most honorable of human activities, but it is a regular human activity and there are good reasons not to make every lie a court case.
January 28, 2012, 12:46 amCliveStaples says:
Really? Categorically? So if I were to slander, libel, or defraud someone and claim that it was “satire”, you think that law enforcement should just assume that it’s satire and do nothing?
January 28, 2012, 4:03 amBill Robelen says:
Mavolio,
January 28, 2012, 2:51 pmThe president does not have the authority to strip someone of a medal. The Medal of Honor can only be stripped for a bad conduct discharge. If the hypothetical general had made those comments, the president could bring charges under a courts martial. This court martial would almost certainly bring a conviction, because it is a violation under the UCMJ for a commissioned officer to make public statements criticizing the Commander in Chief. If the officer felt so strongly about the matter, the only honorable and legal thing to do would be to resign his commission, at which point he could make those statements with impunity, and still keep all medals that he had earned.
Mario says:
To ensure that those who make true statements can do so without fear. A law that would create that fear burdens speech. Same reasoning in Sullivan and Gertz. It’s not about whether the statements themselves are protected—they very well may not be. But outlawing these statements chills true statements, parody, and other protected speech. Why should a speaker risk criminal liability? It’s much easier just to stay silent—thus the law impermissibly chills and burdens speech.
I think this is the first time that so I strongly disagree with EV on constitutional reasoning. I think a fair number on the Court will decline to reach the issue of whether the lies are protected or not and just kill the law on chilling effect. Others may kill it on least restrictive alternative grounds—why not a civil remedy, or compelling interest grounds—that the statements really just go to offense. Because the law dangerously burdens obviously legit speech, it doesn’t matter whether the lies are protected speech.
January 28, 2012, 2:53 pmOrenWithAnE says:
Wouldn’t it benefit the SCOTUS to have as much studied opinion on the matter as possible? CA decisions and SCOTUS briefs have a lot in common in this regard.
I don’t have that problem, the jury does. Just as much as in a civil case for libel or slander.
Maybe, but I can’t imagine a unanimous decision of 12 jurors doing so. Not in a million years.
January 28, 2012, 4:27 pmDavid Schwartz says:
Here we’re talking about a law that prohibits people from claiming the government did something it actually did not do even if they have no intent to defraud anyone. By this standard, it would be perfectly fine to criminalize the claim that the Holocaust never happened or that the Moon landings were faked. Maybe you don’t see a problem with that, but I certainly do.
January 28, 2012, 5:12 pmDavid M. Nieporent says:
This is the same analysis that Scalia (in dissent) called out as mistaken in Maryland v. Craig. We don’t start with the purpose of the right; we start with the text of the right. The fact that the purpose of the First Amendment is to improve public discourse does not mean that only speech which improves public discourse is protected. (*)
It also asks the wrong question. The correct question is, “Where does the Constitution empower Congress to punish false statements of fact?” (Let’s assume for the sake of argument that the commerce clause allows it to do so in cases of commercial fraud. But that’s not this case.)
(*) Note: I am not saying that the First Amendment was intended/understood to protect all categories of speech; I realize it was not. I am saying, however, that we don’t start by excluding everything that doesn’t fit its “purpose.”
January 28, 2012, 6:59 pmAnon. says:
David: Clause 14 of Article 1 § 8. If Congress can regulate the armed forces (subject to restrictions in the Bill of Rights), that would seem to pretty easily include regulating the award of medals and citations to the armed forces.
Conversely, it would seem pretty strange to me to say that regulation of federal awards are purely a state matter.
January 28, 2012, 8:17 pmgeokstr says:
Hmmm…”breathing space”…
Is that like penumbras, and emanations, and auras, and seepages, and infestations, and willow-’o-the-wisps, and other mythical justifications for trashing the Constitution?
January 28, 2012, 8:17 pmRoscoe says:
According to the opinion the government wanted a stay, it was Strandlof that wanted to go forward.
My guess is that he wanted two bites at the apple. If the 10th Circuit had stricken the law down and the mandate issued he would have been acquitted. At that point it wouldn’t have mattered to him what the Supreme Court does.
Now that the 10th Circuit has ruled against him, he gets another shot that the Supreme Court might go his way.
January 28, 2012, 8:28 pmCockleCove says:
Well, it’s not unlawful to discriminate among job seekers, for example, on that basis. Those of us who don’t have military decorations, Pulitzer Prizes, etc. are not a “protected class”.
Similarly, non-veterans don’t have a colorable basis for complaining that they don’t qualify for the hiring & retention preferences given to many military veterans.
January 28, 2012, 9:08 pmhttp://www.dol.gov/elaws/vets/vetpref/vetspref.htm
arbitraryaardvark says:
The opinion is full of false statements of fact. Nonetheless, I am opposed to jailing the authors of the opinion for 6 months. As john stuart mill discussed, the solution to bad speech is more speech, not censorship.
It’s nice to see comments back up; I was not able to leave this comment yesterday; I could read them but not post.
There is enough wrong with the opinion to fill a note or comment for a law review, but I’m not sure there would be a market. Such an article would likely be moot, or at least superceded , once the supreme court rules on this issue.
January 28, 2012, 9:10 pmCockleCove says:
Well, it’s not unlawful to discriminate among job seekers, for example, on that ground. Those of us who don’t have military decorations, Pulitzer Prizes, etc. are not a “protected class”.
Similarly, non-veterans don’t have a colorable basis for complaining that they don’t qualify for the hiring & retention preferences given to many military veterans.
January 28, 2012, 9:11 pmhttp://www.dol.gov/elaws/vets/vetpref/vetspref.htm
Bob Roberts says:
Is the law inspired by the authors of the book Stolen Valor?
http://amzn.to/A4DeiT
January 28, 2012, 9:21 pmGreg Q says:
I take it you didn’t bother to read the opinion, or even the law? If you show up to mock them, and do not claim to have actually won the medals, well, you’re being an idiot and helping the campaign of the person you’re trying to mock, but you’re not violating the law.
If you show up wearing a uniform and the medals, and falsely claim that you’d won those medals, and attacked the candidates based upon that false claim, then you are committing a fraud against your listeners, and that should be a crime.
If you go out in every day life, and claim that you’ve won those medals, again, you are committing a fraud against your listeners. Following Gresham’s law (“bad money drives out good”), you are also harming every person who actually did earn the right to wear that uniform, and those medals. I see no reason why the Constitution should protect that, and I see no reason why Congress should not prevent that.
(While I have friends who’ve served in the military, I never have.)
January 28, 2012, 10:21 pmarbitraryaardvark says:
@ greg q
Common law fraud has nine elements:[3][4]
a representation of an existing fact;
its materiality;
its falsity;
the speaker’s knowledge of its falsity;
the speaker’s intent that it shall be acted upon by the plaintiff;
plaintiff’s ignorance of its falsity;
plaintiff’s reliance on the truth of the representation;
plaintiff’s right to rely upon it; and
consequent damages suffered by plaintiff.
Most jurisdictions in the United States require that each element be pled with particularity and be proved with clear, cogent, and convincing evidence (very probable evidence) to establish a claim of fraud. – corpus wikipedia secundum.
Here, the guy apparently was engaged in fraud, ripping off donors to his veteran’s agency,and could have been prosecuted on that basis alone. Instead, they relied solely on the stolen valor act, which I think is unconstitutional for the reasons in the dissent.
January 28, 2012, 10:34 pmGreg Q says:
Under your argument, no one would ever be guilty of libel, even if you could prove that they knew the statement was false. No?
As we know that the Constitution does not protect knowing false statements, even about public figures, that would invalidate your argument, no?
January 28, 2012, 10:37 pmGreg Q says:
@arbitraryaardvark:
Which of those nine elements do you claim weren’t involved in this case?
He wasn’t a veteran, he knew it, and his listeners didn’t. He relied on his claim to advance his agenda (materiality and speaker’s intent). Our military gets better people if being a member is a source of honor (plaintiff’s right to rely). If he got anything from the plaintiff’s that he wouldn’t have gotten w/o the lie, they were damaged, no? That’s all nine, yes?
I don’t care what his agenda is, even if it’s only that he wants the respect he would deserve if he’d earned the right to wear the uniform and the medals. All nine of those elements are still going to be there (if you trick me into showing you respect that you do not deserve, you’ve harmed me). Which is why it is,a nd should be, actionable fraud.
January 28, 2012, 10:54 pmGreg Q says:
Not true, David.
1: If they weren’t trying to defraud anyone, why are they making the claim?
January 28, 2012, 11:04 pm2: Anyone who believes the claim has been defrauded.
3: It’s possible that the Holocaust denier / moon landing denier actually believes his / her claims. Absent serious mental illness, it’s not possible the military faker believes his / her claims.
Greg Q says:
Well, in this case, Congress is given the power to raise an army, establish regulations, etc. So Congress’s power to punish people who violate those regulations seems rather well grounded in the Constitution, no?
“The Few, the Proud, the Marines.” That gets diminished if anyone who wants to can claim to be a Marine, without actually having been one. In general, Americans have a good deal of respect for those who have served. If people are allowed to collect that respect w/o serving, it makes serving less valuable, which makes it harder to get good people for the military.
Good question, but I believe I’ve answered it.
January 28, 2012, 11:15 pmDavid Schwartz says:
It seems you agree with me that it should not be Constitutional to criminalize Holocaust denial or allegations of Moon landing fakery. (For the three reasons you stated.)
And none of those differences are essential to the argument I’m responding to. Which was:
So why you say start off with “Not true” and then agree with me?
January 29, 2012, 12:02 amErik says:
While I don’t actually have a strong opinion here, my initial thought was “Justice Hugo Black is spinning in his grave.” Absolutely no question he would strike down this law. Congress shall make no law.
I don’t think fraud is protected, provided the proper scienter requirement regarding an intent to induce reliance. That moves from speech closer to conduct. Given that, I’m not sure why a special act is even needed. If it doesn’t have those requirements, that creates some concern. Not here, but in cases where the Judge or Jury has to make findings of fact regarding falsity, intent, etc. What if a claim is made that it’s satire but a court does not believe him. That leads to uneasy areas.
January 29, 2012, 12:36 amDilan Esper says:
Hmmm…“breathing space”…
Is that like penumbras, and emanations, and auras, and seepages, and infestations, and willow-‘o-the-wisps, and other mythical justifications for trashing the Constitution?
Nope. “Breathing space” is simply the common sense notion that you have to be careful not to draw First Amendment lines on the razor’s edge, and should instead protect some speech that you might find marginal or dubious in value, because of the danger that you will chill the expression of speech that would otherwise be fully protected.
For an analogy that I know conservatives and libertarians will buy into, consider the problem of tort liability rules that, in their zeal to prevent injuries, chill socially beneficial activities, e.g., you can’t build certain types of playgrounds because of the fear of lawsuits over children’s injuries. The idea is the same– you can’t impose liability on the razor’s edge in marginal situations but should only do so in clear-cut situations because otherwise you chill socially beneficial activity.
January 29, 2012, 1:33 amDilan Esper says:
I don’t really buy into David Nieporent’s theory of how to analyze the constitutional questions (I don’t think anyone is claiming the Stolen Valor Act exceeds Congress’ enumerated power) but nonetheless, I don’t really think that THIS sort of regulation is found within the power to raise and support armies (or Congress’ power to regulate the armed forces, which actually would be a more logical place to situate it). This is not a law directed at members of the military, or even applicants to the military. It’s directed at speech uttered by people who may have never agreed to abide by any military’s rules.
If it didn’t violate the First Amendment (and I think it does), it probably falls within the necessary and proper clause.
January 29, 2012, 1:40 amBruce Hayden says:
I think the argument could be that faking the honor lessens it, and makes it harder to raise an army, esp. of the Few, the Proud, etc.
January 29, 2012, 2:22 amDavid M. Nieporent says:
To be clear, I didn’t say that it “exceeds” Congress’s enumerated power, as if it turned out that the District of Columbia were actually 10.1 miles square. I said it isn’t remotely in the same ballpark as any of Congress’s enumerated powers.
Anyone can claim to be a Marine without actually having been one. The Stolen Valor Act criminalizes the false claim to have received medals or honors, but not the false claim to have served in the military.
As for your argument, Congress has no power to control speech in order to get people to “respect” the military. Schenck is no longer good law. And if Congress can’t do it directly, it would be odd to suggest it can do it indirectly. (Or, to put it the other way, if people can directly create disrespect for the military, it seems odd to suggest that they can’t indirectly do it.)
January 29, 2012, 3:58 amRobert says:
This is a confusing realm, but typically, the Court finds a way to shoehorn 1st Amendment exceptions when they feel it’s necessary. I’d bet a month’s salary the Court will do so here by a wide margin (I don’t work at a firm, so nobody should get excited and take the bet). The Court is going to give serious consideration to what the compelling interest is here, and they will certainly give due consideration to the flood of amici briefs explaining the harm done to the integrity of the awards system.
Regarding an earlier post about wearing a uniform to satire McCain, you could certainly throw on a police uniform to satire police officers in certain contexts. But the moment you start wearing it around the streets and claim to others you are a cop, your “speech” loses its protection.
Merits briefs for Alvarez are posted here:
http://www.americanbar.org/publications/preview_home/11-210.html
January 29, 2012, 4:48 amAnon says:
I still don’t understand David Nieporent’s argument: how can you claim that regulation of display of federal awards is purely a state matter?
Certainly Clause 14 gives Congress the power to give awards to members of the military. It would seem obvious that power would include the right to give those awards exclusively, and to ensure that only those awarded them display them. Otherwise, you could say, “Congress has the right to award the Congressional Medal of Honor, but imitators can sell (at your local Walgreens, CVS, or Duane Reed) an identical version that is impossible to distinguish from the real thing.”
Now, while I don’t agree that sort of law is outside the ballpark of the enumerated powers, I would agree there’s a good case it violates the First Amendment, which places a high burden on these sorts of laws. In fact, your citation of Schenck, which is a First Amendment case and not an enumerated powers case, seems to suggest you agree.
January 29, 2012, 9:28 amNo Theory of Jurisprudence says:
“You are under arrest” is more speech. So I agree with you and Mill. Sort of.
January 29, 2012, 2:10 pmMario says:
Yes, I believe it would be unconstitutional for the government to toss someone in the slammer for libel or slander for a host of reasons. An individual seeking a civil remedy for harm to his or her reputation is very different—and the government’s courts are restrained in that remedy to avoid chilling speech. I appreciate your thoughts, but perhaps we simply disagree.
IMHO, the closer category here is not libel or slander—no particular individual is hurt here—but fighting words. The statements only go to offense, and are not of such a nature as to cause harm by their very utterance. It’s unnecessary and dangerous to carve out a new category.
January 29, 2012, 2:17 pmMario says:
Yes. But he wouldn’t have protected flag burning, mind you, or expressive conduct generally. I’m curious as to how he’d rationalize perjury as a crime.
January 29, 2012, 2:28 pmTom Holsinger says:
The 10th Circuit’s opinion is particularly devoid of context, and that is a common judicial means of reaching outlandish results. The opinion is abstract, bloodless and ignores something called politics. Freedom of speech is about politics. War is a political act. Public commendation and recognition of valor in combat is a political act.
And lies are often political acts. Ask Josef Goebbels.
The danger of allowing criminal prosecution of intentionally false political speech lies in the potential “chilling deterrent effect”, which the 10th Circuit opinion carefully ignores.
I am surprised that no one has mentioned the implications here of the Supreme Court decision in the Westboro Church case, _Snyder v. Phelps_ (2011) 562 U.S. …, which makes it very clear what is about to happen. How does it make a difference if a young male member of the Westboro Church really did not believe “God hates gays”, and just said so for ulterior reasons, such as a desire to get into the pants of a young female member of the church?
There is a clear Constitutional distinction between civil and criminal penalties. False and malicious speech can not merely create liability for civil damages, but punishment (punitive damages). A civil defendant found liable for intentional fraud cannot, however, be imprisoned. I started with SEC Enforcement and know very well that its civil prosecutions for securities fraud cannot result in criminal penalties. We had to hand those matters off to the U.S. Attorney and state prosecutors.
Criminal fraud prosecutions are very, very rare, with those almost always being by federal authorities in the context of interstate conspiracies. These days it is email and phone fraud, aka 18 USC 1341, and associated RICO charges under 18 USC 1961, et seq.
January 29, 2012, 2:29 pmTom Holsinger says:
oops, fraud on the government is a standard criminal charge under federal and state law. It is charges of criminal fraud harming third parties which are rare, and generally done by federal as opposed to state prosecutors. Bernie Madoff’s prosecution is an example of the former.
January 29, 2012, 2:41 pmJarbidge says:
For people who agree with this decision, what is the lower bound, if any? Which of the following knowingly false statements could congress/a state legislature/a city council permissibly criminalize?
1)I graduated magna cum laude from Oxford
2)I attended Oxford
3)I made the Dean’s list one semester at TriCounty Community College.
4)Of course I’ll respect you in the morning.
5)Of course Santa Claus is real.
(to be clear, I’m not suggesting a legislature would outlaw petty lying – Lord knows they would be putting themselves at risk – but what they could constitutionally outlaw)
January 29, 2012, 2:47 pmBored Lawyer says:
Maybe I am missing something, but I always understood NY Times v. Sullivan and its progeny as allowing for a “breathing space” by imposing a very high mens rea requirement onto what had been a strict liability tort at common law. Namely, you have to show actual malice– either knowing conduct or reckless disregard for the truth.
The 10th Circuit here holds that the same mens rea requirement applies to the statue, and therefore the breathing space requirement has been taken care of. What is the problem?
I don’t see the distinction between criminal and civil liability. Either can chill speech, and I have never heard of a First Amendment distinction on that basis. There are plenty of criminal prosecutions for fraud — under mail fraud, wire fraud, bank fraud, securities fraud and related RICO. No one has ever dreamed the First Amendment protects those.
As for stating that the Holocaust never happened, or that the moon landing was faked, the problem with such prosecutions is that the people who state these things genuinely believe them. They can give you elaborate explanations as to why their view is correct. True, most of us consider these to be crackpot theories. But a prosecutor would have a very hard time proving that a Holocaust denier, for example, acted “knowingly.”
January 29, 2012, 2:52 pmMario says:
Fraud is not speech. Fraud is an act—like accepting a contract. Fraud illegally alters legal rights and duties, and assaults property rights. This is not fraud. The speech in the statute implicates no property interests as the sovereign has defined them. Fraud also requires a showing of harm, absent from this statute. Just as violent video games being sorta’ “like” incitement or fighting words isn’t good enough for the 1A, that the speech in the statute is sorta’ “like” fraud isn’t good enough for the 1A either.
I think your reading of Sullivan is alright, just too narrow considering its historical context—but that’s a matter of opinion where reasonable minds can certainly disagree, sure.
As to the other point, on criminal v. civil in the 1A context—one example that springs to mind is the broader basis for a DP vagueness challenge in the criminal context where the 1A is implicated. The scrutiny is especially searching and the requirements especially stringent. There’s also plenty of dicta requiring a strong showing to impose criminal liability in the 1A context. I don’t see either of these in the civil arena, except with “quasi-criminal” statutes. These are off the cuff recollections, but I think appropriate enough for a blog post.
Facially, parody, theatre, and all manner of obviously protected speech fall inside the text of the statute. Even under it’s own reasoning, the 10th ruled incorrectly—this law is facially overbroad.
January 29, 2012, 3:49 pmDavid Schwartz says:
Tax protestors are routinely convicted for knowingly failing to comply with the legal requirement to file income tax returns. I’ve met tax protestors and Holocaust deniers and I’ve read the writings and heard the rantings of Moon landing deniers. Their level of conviction in their crackpot theories seems about the same in all three, at least to me. I certainly wouldn’t expect juries to parse any difference.
Could the government criminalize claiming that there’s insufficient evidence to conclude that carbon dioxide emissions due to human activity are a primary factor in a current global warming trend?
January 29, 2012, 4:18 pmTom Holsinger says:
Jarbridge, my wife adds:
6) I’ll be ready in a minute, Dear.
January 29, 2012, 5:09 pmNo Theory of Jurisprudence says:
Bad analogy. Tax deniers aren’t afforded any criminal protection on the basis of income tax constitutionality because, even if they subjectively hold the honest but mistaken belief that the tax code is unconstitutional, the issue has been decided by the Supreme Court such that the law will not recognize their subjective belief as “honest”. However, I think you can challenge criminal violations of the tax code on the honest but mistaken belief that the code says X but means Y, and your defense will go in front of a jury.
Constitutional challenges, not so much, and for obvious reasons.
Anyways, with respect to tax deniers, there’s an underlying act (not paying taxes) which has nothing to do with speech. They aren’t convicted for talking about the tax code; they’re convicted of violating it.
The check to your rather weird concerns (that the government could criminalize statements about moon landings or holocaust denial) is the same answer to equally weird concerns: governments are elected. The fear that every government which has the ability to criminalize moon-landing-deniers will do so is as idiotic as the belief that the moon-landing was fake. You might as well worry about racist cyborg-unicorns.
January 29, 2012, 6:18 pmDavid M. Nieporent says:
Actually, there’s something called the “Cheek defense,” named after a tax protester who litigated his case all the way up; if they sincerely believe that the law doesn’t require them to pay taxes, they can’t be criminally convicted. (They can still be forced to pay the taxes, of course.)
January 29, 2012, 6:40 pmDavid Schwartz says:
That is precisely what they say. (For example, a typical tax protestor argument is that the code section that lists some unusual sources of income that are to be included in taxable income is exhaustive and thus that anything not listed is not taxed.) The defense *does* go before a jury. And the jury doesn’t believe the defense.
My point is that there’s no reason to think this would play out any differently in the case of Holocaust or Moon landing denial.
Right, but this element is the same — whether or not they sincerely-held an unpopular, “conspiracy nut” belief. There’s no reason to think this element would play out any differently with Holocaust or Moon landing deniers. Likely it would go the same as it does with tax protestors, with the jury almost never believing that the crazy beliefs are sincerely-held.
For what it’s worth, I’ve met several Holocaust deniers. I don’t think their beliefs are sincerely-held. (Though I think it’s probable that many Holocaust deniers, particulary in Arab countries, sincerely hold their belief that the Holocaust never happened.)
Exactly. So in the case of all the tax protestors who were convicted (including Cheek!) the Jury didn’t believe them. There’s no reason to expect any different in the case of Moon landing or Holocaust deniers. The arguments, at least to me, sound precisely the same.
January 29, 2012, 6:48 pmNo Theory of Jurisprudence says:
Most people don’t believe self-serving statements made by people accused of not-paying their taxes. The fact that the jury doesn’t believe the criminal’s self-serving statement is a problem, if at all, with the jury system, and not a First Amendment concern. In self-defense I shot that man, 8 times, in the back. I swear.
Except nobody is proposing a law to criminalize moon-landing deniers. We criminalize tax protesters because not paying taxes presents a rather severe free-rider problem.
I actually don’t think that ignorance of the law should be a defense to tax code violations, and the tax code is rather unique in that regard. In any case, are we convicting tax protesters of being wrong about the tax code, or of violating it? You don’t seem to disagree with me that we’re convicting people of violating the tax code. As there is no law prohibiting moon-landing denial, your concern strikes me as irrational.
So your complaint is with the jury system; i.e., you simply don’t think they can be trusted to reach the correct result. We should do away with juries, then, rather than trying to invent constitutional tests which will prohibit some future law from being passed that has no chance of ever being passed in the first place. The problem with the unnecessary constitutional test is that it inevitably prohibits a bunch of thoughtful, useful laws we’d all like to pass.
Please set aside the tax protester problem, and explain what it is you’re concerned about. Do you think anyone is going to be convicted of denying the moon landing in your lifetime? Do you think the outcome in the Stolen Valor Act challenge has anything to do with that?
January 29, 2012, 7:07 pmGreg Q says:
A city or state should be able to outlaw any of the first three, and probably #5. Congress probably doesn’t have grounds to outlaw any of them.
1: You do not have a 1st Amendment right to lie. Not even, or should I say especially, in a political context.
2: The Federal Government has enumerated powers. Cities and States can do anything they damn well please that doesn’t explicitly violate the Constitution. Now, if any City or State passed any o the above laws, we’d see a bunch of idiots voted out in the next election, but that’s not a Constitutional issue.
January 29, 2012, 7:32 pmwhit says:
you do realize that some jurisdictions have/have had criminal libel statutes?
these have held up
i don’t agree with them, AS POLICY, but at least as far as case law goes, they are constitutional
January 29, 2012, 8:01 pmTom Holsinger says:
Greg,
Given that the Supreme Court in_Snyder v. Phelps_ found insufficient the only public purposes supporting the Stolen Valor Act, why do you think they’ll reach a different result this time?
January 29, 2012, 8:50 pmMario says:
The thrust of David’s point, and I think it’s a good one, is that criminalizing falsehoods could spillover into areas of debate. Crack pots are somewhere on the spectrum closer to truth than lies, but it is a spectrum.
And I think pointing to the political process as a guard is not a good idea—although EV does suggest that in his brief. These rights are not guaranteed because the political process routinely protects them on its own.
January 29, 2012, 10:02 pmDavid Schwartz says:
It’s telling that you picked denying the Moon landing as your example instead of denying the Holocaust. I could paste a long list of articles where people were jailed or charged with crimes for the equivalent of claiming the Moon landings were faked.
Because it shows that this view of the First Amendment is gaining traction:
“Why in the world would the 1st Amendment protect “false statements of fact”? How does allowing people to lie improve public discourse?”
January 29, 2012, 11:41 pmMario says:
Post incorporation? Example?
January 30, 2012, 7:01 amMario says:
The only cases I know of where the Court has dealt with criminal libel convictions are 379 U.S. 64 and 384 U.S. 195 where the convictions were soundly reversed. Both cases have been cited with approval. I could be wrong, however, and welcome correction.
January 30, 2012, 7:31 amNo Theory of Jurisprudence says:
Well the First Amendment was never intended to place limits on, for instance, state legislation, hence the “Congress shall make no law…” preface. To say these rights were strictly “guaranteed” was false for most of our nation’s history, and changed only by judicial fiat, “interpreting” a constitutional amendment passed under political duress.
While there’s plenty of anecdotal support for the notion that the BOA was always intended to protect us from ourselves, actions have always spoken louder than words, and the same Congress that passed the First shortly thereafter enacted the Alien and Sedition Acts. Your contention that the political process is an imperfect guard is simply an acknowledgment that democracy doesn’t work. Which might not be wrong, or bothersome, except there’s still the awkward matter of deciding who gets to, er, decide these things.
Is it telling? Ok: Please set aside the tax example, and explain what your concern is? Do you think an American is going to be convicted in your lifetime of denying the Holocaust? (As a personal matter, I think it would be silly to prosecute Holocaust denial, but I also don’t think democracy depends on having a fundamental right to deny the Holocaust, which is unique to the United States.)
However, I am asking you for several articles where Americans were jailed (or were almost jailed, until the Supreme Court stepped in) for crimes equivalent to claiming that the moon landing was false, in your lifetime.
Regaining traction. For most of this country’s history, false statements of fact did not enjoy special protection. The first victim of free speech jurisprudence has always been public discourse, which we all now bemoan as unnecessarily toxic–though hopefully not beyond repair. Hardly shocking, since we’ve elevated publishing patent nonsense or garbage to a fundamental right. The Stolen Valor Act, which I find silly, at least has the virtue of reflecting an electorate that takes the political process seriously. If you had to choose between a functioning political process, and the absolute right to deny the Moon landing, which would you choose?
January 30, 2012, 9:09 amgarik16 says:
Quoting the Court:
The problem is that this isn’t necessarily true. As noted in the comments above, Congress could certainly pass a law against knowingly false statements about Climate Change Science (or say even the Holocaust, but climate change science is an area where I think most people would agree that politicians blatantly lie for their own agendas), if lying is totally unprotected speech. And then you’d have Courts having to figure out when someone was KNOWINGLY speaking falsely…which is really really a slippery slope right there. Figuring out what a person believes, as this type of holding would require, is basically impossible.
January 30, 2012, 9:39 amloki13 says:
This is so true! I long for the day when we could return to the days of the Framers, when the political conversations were so much more gentile, and no spurious accusations and horrible false statements were hurled against one’s political opponents, and everyone agreed that political discourse was not very toxic.
Plus, they occasionally settled things with gins!
January 30, 2012, 9:40 amloki13 says:
[EDIT- editing is down. I meant to write guns. If they had settled things with gins, that also would have been interesting. Although that is much more British- back then, we would have used rum.]
January 30, 2012, 9:42 amNo Theory of Jurisprudence says:
Most western countries manage just fine to enforce defamation without having the “actual malice” adopted by SCOTUS. Canada, for example, has specifically rejected that standard, may chill speech in a way many/most Americans find deplorable, but hasn’t yet descended into totalitarian madness.
The United Kingdom is still a free country, even though non-public plaintiffs can apparently prevail in suit for mere negligent defamation (without any requirement that the statements be knowingly false). If their courts can handle it, why can’t ours? Indeed, many American crimes require proof that the defendant acted knowingly; what about speech prohibitions makes them uniquely difficult to police? Most of the time we can just ask the speaker if he knew it was false, and often he will oblige, as did Larry Flynt. (That’s not “knowingly” though.)
I’m not breathlessly invoking some beautiful picture of pre-14th Amendment America. What I’m saying is that the toxic political environment all our predecessors inhabited peppered their views of the allegedly sacred importance of absolute freedom to defame, to lie in the public realm, and to publish attack ads about political opponents on the eve of an election, poisoning the electorate without otherwise affording the opponent an opportunity to respond.
There have been a lot of thoughtful, legitimate attempts to reign in the political process which have been thrown out by reason of the First Amendment. Miami Herald Publishing Co. v. Tornillo and Citizens United come to mind, and they weren’t passed in the good old days of the 18th century, but in the 1970s, and last decade, respectively. My problem is precisely that I don’t think it wise to let some vague, ignored even in its own time, amendment prohibit practical solutions to real modern problems enjoyed the world over… except here. This is especially true with respect to state laws stricken on Fourteenth Amendment grounds, which had nothing at all to do with forcing SCOTUS free-speech jurisprudence on every state.
January 30, 2012, 12:13 pmloki13 says:
Most western countries don’t have a First Amendment. Other countries (assuming you’re not big into natural law) have the right to strike their own balance, but its not ours. Many people complain about the UK as a libel-shopping forum, so I am somewhat surprised you use them as a shining example.
The Constitution prohibits lots of thoughtful, legitimate attempts to reign in things we might like at one time or another. Drat.
January 30, 2012, 12:28 pmDilan Esper says:
I think the “harm done to the integrity of the awards system” is phony. It’s quite easy for the government to set up a system to verify awards claims. And there’s no evidence of legitimate awards winners losing jobs or opportunities or suffering any sort of harm because there are jerks out there claiming they won decorations they didn’t win.
This is about people being pissed off, not people being injured.
January 30, 2012, 2:38 pmNo Theory of Jurisprudence says:
And yet, life goes on in those places… It’s almost as if, contrary to what we were told in grade school, fundamental freedoms, democracy, happiness, and puppies! don’t depend on a Court’s interpretation of the First Amendment at all.
The difference is, in the event the people of the UK decide that there is something broken with their defamation laws, they can fix them. Whereas here, if we think there’s something wrong with letting a newspaper publish a defamatory editorial on the night before an election, there’s nothing we can do about it, because the democratic process simply isn’t involved. There are still places where free people can get together and agree to limits on the campaign advertisements of corporations and unions in the run up to a national election; the U.S. isn’t one of those places.
Which is precisely why we should question–just like the ratifiers of the constitution–whether ours is a system of government that makes much sense. The fact that we can’t pass thoughtful, legitimate legislation is a problem, and not a trivial one, especially if the thing preserved is worse than trivial, like the absolute right to defame public figures.
January 30, 2012, 3:08 pmloki13 says:
Yes, life goes on. Life goes on in many countries. It goes on in the UK. It goes on in North Korea. It goes on in Saudi Arabia. It goes on in Germany. What’s your point?
We have our system for a reason. You might not like the reason, and would prefer a system that did not have a constitution or any rights that couldn’t be overriden by the legislature. And that’s a choice (I won’t even say it’s a bad one). But just pointing out that there exists different systems doesn’t make them better for a particular issue.
For one, I happen to really like our First Amendment system, even when it produces results I don’t like on occasion. And if you don’t like it, feel free to agitate to have the First Amendment removed from the Constitution. After all, that’s your right!
January 30, 2012, 4:04 pmTed says:
Is “life goes on” the aspirational standard you use to compare systems? “Life goes on,” for most of DPRK’s citizen as well. Obviously, free speech is useless.
Um. When was the amendment system abolished? And why wasn’t I so informed?
I think it makes a lot of sense to protect false speech that causes no actual, provable harm.
January 30, 2012, 4:13 pmDavid Schwartz says:
Are you saying the Constitution wasn’t accepted by a Democratic process? Or are you saying a Democratic process necessarily requires that a majority of the moment get precisely what it wants?
January 30, 2012, 4:18 pmTed says:
He’s saying that he’s bummed Congress can’t take away the rights reserved to the people by our constitution. I can’t say that I share in his disappointment.
January 30, 2012, 4:53 pmMario says:
If you want to be that particular, the original BoR was to be a textual insertion into Art. I section 9, a limitation on Congress (thus the vestigial phrase, “Congress shall make no law”). Not the courts. Not the executive. But everyone understood it restrained the executive and the courts. And everyone was worried about a tyranny of the majority: the Feds, and especially the Anti-Feds. Or we could roll back to just a prohibition on prior restraint, Sullivan and the last 60 years be damned. The BoR was certainly about guarding against a failure of the political process—as were all the redundancies and checks and balances in the constitution. The Alien and Sedition Act, which was by no means universally understood to be constitutionally kosher, is an excellent example of why that security was so important. But perhaps we are two reasonable minds disagreeing on a view of history.
Nevertheless, your criticism goes to an ancillary point, not the substance of my argument: that (1) this law is overbroad because it textually criminalizes all manner off obviously protected speech (2) the unnecessary exception will lead to kooky and dangerous results, see Kozinski’s opinion for a decent list, as well as some points developed here.
January 30, 2012, 5:16 pmMario says:
Bingo. I agree and think that it’s really about fighting words.
January 30, 2012, 5:18 pmMario says:
Are you really arguing that “well they do it in Canada so why not here?”
In Canada, when the government violates your civil rights, and you win in court at personal expense and so on, they give you a piece of paper saying the violated your civil rights. No damages. Not even an apology. Not even a lousy t-shirt. A declaration and no more.
The president ignores the Canadian Supreme Court. Canadian police can lock you up without recourse under a breach of the peace theory. It’s not merely deplorable. It’s dysfunctional.
Civil rights in Canada are not “just fine.” No. By definition, we can’t see the chilled speech.
January 30, 2012, 5:28 pmTom Holsinger says:
I agree with Dilan Esper and Mario here.
Note Justice Alito’s dissent in _Snyder v. Phelps_.
The public peace and order, and in particular provision of public redress for intentional infliction of private pain so as to avert private vengenance, are THE principal objectives of any criminal justice system.
The Supreme Court majority in _Snyder_ found those interests insufficient to justify infringement of the 1st Amendment freedom of speech clause even concerning civil damages.
The ONLY justification for the Stolen Valor Act is the public interest in minimizing abuse of public commenation and recognition of valor in battle. And that same 8-1 majority in _Snyder_ found this insufficient as well.
What is so different about the Stolen Valor Act, as opposed to the private tort suit in _Snyder_, that essentially the same Court will reach a different result now?
January 30, 2012, 5:49 pmohwilleke says:
The Stolen Valor Act is really in no way materially different from a finding that the United States Government has service mark (i.e. trademark for services) rights for military honors punishable by similar sanctions. Several trademark like statutes are indeed cited by the majority opinion (e.g. criminal penalties for falsely using the Olympic logo to convey that one is actually affiliated with the Olypmics).
January 30, 2012, 6:21 pmAmazed says:
If the Stolen Valor Act were held to violate protected speech, then how could you ever prosecute a fraud again? Fraud is fraud. If I ask you if you want to buy the Brooklyn Bridge and you say yes and give me money for it, why is that a crime, but you telling me you’re a medal of honor winner and wear a corresponding ribbon so that I will give you money for speaking fees, or even buy you a drink, how is that different? Both are verifiable, but both are still fraud.
January 30, 2012, 6:46 pmJarbidge says:
On the subject of fighting words, who is being provoked? Medal winners? Would they reasonably be expected to “exercise a higher degree of restraint”, like police officers in LEWIS v. CITY OF NEW ORLEANS?
(I’m not sure I know anyone who has won any of the higher medals, but they would be combat veterans, and the combat veterans I know tend to be very low key; I would imagine their reaction to a Class A blowhard would be disdain rather of fisticuffs.)
January 30, 2012, 7:02 pmDavid Schwartz says:
The difference is that fraud requires many elements that the Stolen Valor act does not. For example, fraud requires:
1) That the misrepresentation be material.
2) That the speaker intend the listener to rely on the misrepresentation.
3) That the listener in fact rely on the misrepresentation.
4) That the listener suffer actual damages as a result of its reliance on the misrepresentation.
So accepting the Stolen Valor act as Constitutional suggests that none of these elements are essential to a Constitutionally-permissible law against fraud. This represents a significant widening of the exceptions to the First Amendment.
January 30, 2012, 7:02 pmTed says:
I don’t want to get all lawyerly on your ass, but you are applying a layman’s definition of fraud. At common law, fraud had nine elements, and each had to be proven with with specificity. Among these elements is the requirement that the plaintiff rely on the false statement and suffer actual “legal” damages and that the plaintiff
My understanding is that the SVA simply requires a false statement. It doesn’t require reliance, and it doesn’t actual damages. This is a rather large expansion over the 1st’s exception for fraud.
January 30, 2012, 7:06 pmNo Theory of Jurisprudence says:
My point is that anyone who suggests that freedom of speech is fundamental to a free society is unaware of free societies that do not protect speech to the degree protected here. That being understood, the First Amendment looks more like an unnecessary burden on the democratic process, than a necessary anti-majoritarian measure to protect us from ourselves.
Pointing out existing free democratic systems should put the lie to any assertion that constitutional rights are a necessary condition to freedom and democracy and love and happiness. And we should always look outwardly to see which forms of government we can emulate to better our own political system, and indeed often do so.
In terms of “better for a particular issue” if strong majorities throughout the country agree on X and Y, and pass laws to enforce X and Y, what good is an immutable amendment which prohibits legislatures from passing X or Y? Particularly in a case like Tornillo, which isn’t even chilling speech but rather encouraging it, what’s the First Amendment justification?
Most importantly, why should I assume that there’s something useful about the First Amendment? The fact that we’re the only country in the world to fetishize about free speech to this disagree suggests we’re the weird eggs and not the other way around.
Unfortunately, it doesn’t even matter if most people agree with me about what the law should be. We live in a system where it doesn’t matter what majorities think the law should be, because those laws will still be subject to judicial review, interpreting an amendment passed in 1791 (but not by a democracy). It is pretty twisted that in the 21st century Americans still don’t have the right to govern ourselves in several meaningful categories.
Because states have bicameral legislatures, something like 12% of the population can block a constitutional amendment. So I don’t have any meaningful ability to do anything about the First Amendment.
Having said that, what is it you think I’m doing here, advocating against abusive judicial outcomes?
January 30, 2012, 8:05 pmNo Theory of Jurisprudence says:
No, I aspire to live in a place that is ruled through the consent of the governed, rather than in a place that is ruled by the dead. Judicial review is something we have in common with Iran. A free place is one where citizens can get together and make policy decisions based on their collective values, where people can decide that they dislike littering more than they like having the absolute right to pamphleteer (in other words, the right to live in a litter free world is considered greater than the right to pamphleteer). We no longer get to make evaluative decisions like that, which makes us in some ways as “free” as Iran.
See above, due to the structure of the amendment process, which was ill-conceived at the time, it now takes something like 12% of the population to block constitutional amendments. Only the most banal amendments get passed now, except in times of crisis, or when you simply invade half the country and hold a gun to their head until they add the 13th, 14th, and 15th.
Ok, and you need a First Amendment for that?! How about you pass a law that says: “False speech that causes no actual, provable harm is not actionable.” What’s wrong with that approach?
January 30, 2012, 8:17 pmTed says:
So now the “immutable amendment” becomes subject to a change under a 88% majority.
The fact is, free expression is a right. That right is reserved to the people, via the constitution. That document provides a method in which that document can be changed. If you don’t like that, tough cookies. Move or start a revolution.
Also, societies who have greater restrictions on free speech are almost by definition less free.
I’m going to categorically disagree with you that government restrictions on the content of a newspaper encourages free speech.
January 30, 2012, 8:19 pmMario says:
It’s very different from fraud.
January 30, 2012, 8:29 pmNo Theory of Jurisprudence says:
As a matter of fact, yes, even the loosest definition of “Democratic process” doesn’t encapsulate the United States in 1789. I don’t think you get to call your system of government “Democratic” when over half the population is expressly forbidden the franchise.
But then again, what do you think is happening in any one of the dozens or hundreds of times that SCOTUS overturns a decision made by the Democratic process? Which universe respects the “Democratic process” more, the one where a bunch of slave-owning founders who I’ve never voted for, who lived before I was born, passed a bunch of cruel laws, protected them by super majorities so strict that I’ll never have a puncher’s chance at overturning them, or the one where democratic majorities already recognizing universal franchise can decide for themselves whether the sanctity of the democratic process is more important than protecting the absolute “right” of corporations (i.e. “people”) from any regulations concerning political contributions?
I’ll speak for myself, Ted. What I am saying is that I didn’t reserve any rights to the people by the constitution, which is some thing I was born into, and not something that I’ve accepted through the democratic process. And it occurs to me that, in a democracy, I really don’t care what George Washington considered so sacred or fundamental or important that he decided people like me should never have an opportunity to reverse him, because he’s deader than disco.
You talk about “rights” but every SCOTUS decision prohibiting some duly enacted law takes away a corresponding right. Not everyone agrees that the absolute right to defame is more important than the right to live in a society where other people don’t have an absolute right to defame. We’re adult enough to make policy decisions about defamation law without resort to judicial interpretation of the constitution. Nothing important is at stake with respect to defamation law (or the Stolen Valor Act).
January 30, 2012, 8:32 pmNo Theory of Jurisprudence says:
I’m not sure “everyone understood” any such thing, but I do know that virtually “everyone understood” that the First Amendment placed no limits on states until the 20th century, or at the earliest, the end of the 19th century.
Followed by:
Who do you think passed the alien and sedition acts? Your crowning example of why we need a First Amendment was a law passed by the people who ratified the First Amendment, and which was never ruled violative of the First Amendment, but which was subsequently cured by the existing “democratic process” (to the extent you’re comfortable slandering “democratic process”).
What the Alien and Sedition Acts prove is that elections are a powerful tool against tyranny, not that we should all bow to our judicial overlords.
When you assume that the law “textually criminalizes all manner of obviously protected speech” you assume the conclusion. My problem is that lots of “obviously protected” speech shouldn’t be.
As to two, it doesn’t lead to any kooky and dangerous results that can’t be reversed by simple majorities. The kooky and dangerous results are the limits on electorates placed by Supreme Court opinions.
January 30, 2012, 8:43 pmDavid M. Nieporent says:
No; a free place is one where individuals make decisions, free from “collective” values. There is no such thing as “collective” freedom, and the “freedom” to run other people’s lives is an oxymoron.
January 30, 2012, 8:44 pmNo Theory of Jurisprudence says:
No. I am saying that because they do it in Canada, and that is a free place, I think it’s safe to say that this particular Tenth Circuit decision is not critical to the safety of the Republic. That being the case, why don’t we just sort this out through the political process, rather than burdening the country with ever more judicially created anti-democratic rules.
MOTHER OF GOD, BUT WHAT ABOUT THE CANADIAN LAWYERS???? Of course that’s also patent nonsense, because Canadian courts do have the power to fashion remedies for breaches of rights, and their powers exceed the ability to issue declarations.
My entire endgame here is to live in a country where the Supreme Court does not have judicial review over “constitutional questions”. I wish our elected officials more often ignored our unelected ones.
January 30, 2012, 8:54 pmNo Theory of Jurisprudence says:
Ok, it’s a right. Wearing sunglasses at night is also a right.
And the millions of people who have voted for and supported laws that were subsequently overturned by the Supreme Court were what… not people? I’ve never met anybody who ratified the First Amendment.
The funny thing is the Articles of Confederation also had an amendment process, but the founders simply ignored those procedures when it suited them, which is why we now have a constitution. I’d happily follow their lead, which is generally how I interpret the dozens or hundreds of democratic acts which millions of us have tried to pass over SCOTUS’s objections. Citizens United is a good example. If SCOTUS reverses the health care mandate, that will be another fine example of them interfering in the democratic process.
Disagree all you want, I don’t much care. Here’s the statute:
It doesn’t prohibit the newspaper from making attack adds, it simply requires them to allow a rebuttal.
January 30, 2012, 9:06 pmNo Theory of Jurisprudence says:
Sure, fine, I’m actually ok with this David, except for the last bit. Your freedom ends when it interferes with my life, and most legislative decisions are aimed at addressing this, even though the legislatures are often wrong, or stupid, or simply behaving disingenuously. I think drugs should be legal, but ostensibly anti-drug laws are premised on some assumption that drug use harms non-drug users. I think prostitution should be legal, but ostensibly anti-prostitution laws assume that prostitution harms someone. I’m pro-gay rights, but some people view homosexuality as an abomination so abhorrent to their personal belief structure that they are mentally or physically troubled by its mere existence.
You can’t avoid the fundamental problem of how we order these corresponding rights just by saying that right X is fundamental but right Y is not. I am generally against any law which criminalizes harmless behavior, but I disagree with a lot of other people about what kind of behavior is truly harmless. No one can decide for the rest of us whether thoughtful political discourse is more important than absolute free expression, although we’ve often demonstrated, through legislative act, that the two may be mutually exclusive.
You can deal with this problem a number of ways. You can have a political system where nine lawyers create complicated legal rules (that only they can ultimately interpret) to address what’s really important, taking into consideration those rights so fundamental and natural and important that they emanate from penumbras of the constitution, and these decisions are irreversible through any normal or reasonable political process. Or you could have a political system where the people get together and argue with one another about how important right X or Y is, they have an election, decisions get made, and if we get it wrong we can revisit the legislation in the next election cycle.
We know that the first system is what the United States and Iran use.
January 30, 2012, 9:19 pmDavid Schwartz says:
If we had the second system, I’d vote for the first one. The ability of a majority of the moment to make rapid changes in fundamental rights based on overblown panic from short-term events terrifies me.
The Supreme Court gets it wrong all the time, sure. And I agree, we have a terrible system in the United States. But power to the people to make changes more rapidly would almost certainly make it worse.
January 30, 2012, 10:14 pmMario says:
Well sir, if you don’t think parody, film, theatre, and so on are protected—which fall into the text of the act—then our differences are too basic to converse. More, it seems our differences are more fundamental than this particular Act. Because you and I don’t share elementary assumptions about the government’s legitimacy, the discussion as pertains to the Stolen Valor Act can only be fruitless. I have good friends who think in your vein as well, or at least ponder it. That’s cool. Just—it’s not close enough to a normative discussion for us to really have a dialogue.
On Canada, I know Canadian lawyers who study this area. We correspond with each other. I just—you and I clearly can’t have a dialogue.
One final point, well good-faith suggestion.
I believe there was more nuance and division on the matter than you suggest. If I may, I’d politely recommend some primary source documents. (Madison seems fairly authoritative—or what do I know anyhow.) There are loads on googlebooks now, from Rawle to Tucker to Story and hoards of others—things that used to cost tons and used to weigh almost as much. Again, you and I share a different historical interpretation. (Isn’t originalism wonderful? :) )
January 30, 2012, 10:15 pmDavid M. Nieporent says:
I think I see where your argument went off the rails.
January 30, 2012, 11:00 pmNo Theory of Jurisprudence says:
Such a strange belief that political wisdom died with the framers. If they had the political will to do right, to protect freed speech by enacting a First Amendment, why couldn’t we do the same, today? Why the need to protect a democracy from itself? Has something happened since 1791 that renders us incompetent to rule on these issues for ourselves?
As an empirical matter, is the Supreme Court so useful at coaxing us from rapid change? Were they so useful in Korematsu v. U.S.? Did the Supreme Court halt or hasten us towards the Civil War? When, exactly, has the Supreme Court ever acted like a political moderator? What was Roe v. Wade but the Court’s “rapid changes in fundamental rights based on overblown panic from short-term events”? The Supreme Court has been the great accelerator of radical social change, which is precisely why so many of its advocates praise the Court.
The idea that the Constitution is necessary to prevent wild swings in political will is also belied by history; the most consequential constitutional amendment–the 14th–wasn’t passed on sober reflection of the previous years, but in a moment of national panic, hastened through ratification through cheap political threats.
Also, if the major fear is that majorities can’t be trusted, shouldn’t amendments be the response to irresponsible majorities? If you had a valid fear that the legislature wantonly abandon free speech, shouldn’t the default be: 1) let us legislate, but 2) when we screw it up, we’ll pass an amendment targeting the precise evil? For example, if your fear is really that people will go to jail for denying moon landings, let’s have a constitutional amendment prohibiting majorities from imprisoning people for denying moon landings, rather than have a court decide that bipartisan campaign finance reform violates the rights of not-people.
Also, even if majoritarianism was evil, that alone wouldn’t justify our current system. Majoritarianism might be untenable, but judicial review no better.
January 30, 2012, 11:25 pmJarbidge says:
How do you feel about Brown v. Board of Education, Lawrence v. Texas, or Loving v. Virginia? Because they overrode the democratic preferences of millions of Americans. The Bill of Rights is supposed to thwart the preferences of the majority, to the extent they constitute a tyranny of the majority.
January 30, 2012, 11:29 pmNo Theory of Jurisprudence says:
You think “film” falls into the text of a 1791 amendment? Reasonable minds have disagreed since minute one about what the text addresses, and you can’t resolve that longstanding disagreement merely by asserting that your pet peeves are covered.
And you aren’t going to be saved by Supreme Court judges. The Lovers is a film, so it clearly fell within the text of the amendment (per you), yet none of them could agree about what was protected. Opinion: Film is protected, obscenity in film is not, stick to the Roth v. US test. Black and Douglas: First Amendment absolutely protects filmmakers from conviction for making films. Justice Stewart: Uhm, rule is limited to, uhh, “hard-core pornography” and this isn’t hard-core pornography, because I’d know hard-core pornography when I see it. Goldberg: This film is not obscene, ergo, I’ll concur. Three dissenters (two opinions) behind that. It’s just a bunch of nonsense, over what should be, by your measure, extremely straightforward: is this a film? Yep. Does film “fall within the text” of the constitution? Sure. So why do we get 19 different blubbering opinions from the nation’s greatest legal thinkers?
Is it possible that these issues aren’t nearly as straightforward as you’re presenting them?
In this case, which one of us views the government as illegitimate? The illegitimacy of democracy is a necessary premise of judicial review.
No we don’t. It seems pretty apparent that both you and I agree about what actually happened.
January 30, 2012, 11:41 pmNo Theory of Jurisprudence says:
I’ll start with what I don’t think about them, as I’ve just finished articulating why this:
is not a good explanation for judicial review. You’ve cited three of the greatest Supreme Court decisions in history, not because they were properly decided, but because they protected rights that most of us hold dear today, and so in hindsight they look genius. What they weren’t, however, were decisions in which the Supreme Court was protecting democracy from overblown panic resulting from short-term events, as each was overturning laws that had been on the books for decades.
No, the Bill of Rights was supposed to protect individual rights from Congressional acts (you’ve cited three cases that would not have been impacted by the original Bill of Rights; those are all 14th Amendment cases). The Fourteenth Amendment was maybe supposed to thwart the preferences of the majority, but the fallacy is assuming that it intended the Supreme Court to do so; Section 5 isn’t superfluous.
Returning to how I feel about those cases, obviously I can’t complain about the results, because I’m a freedom loving, racism hating, gay supporting liberal. But the result in each one of those cases could have been accomplished through the political process, and there are real questions as to whether, for instance, Brown impeded rather than accelerated racial mixing in the US. In so far as part of Brown’s legacy was the national busing scandal, I join Biden: “it was a liberal train wreck.” Federal district courts trying their best to interpret Brown’s “all deliberate speed” literally bankrupted certain school districts, and still managed to dramatically increase the white flight which even today ensures that school districts the nation over remain racially separated. I say all this because I’m not sure that Brown was rightly decided, and I’m uncertain that the resulting chaos was on the net-positive for the country, or for blacks for that matter. Of course, if we’re being fair, we measure the goodness of Brown against the evil of Plessy, or the goodness of Loving against the evil of Pace.
As for Lawrence v. Texas, wrongly decided: the Bill of Rights was never intended to “thwart the preferences of the majority” to discriminate against homosexuals. Personally? I respect human rights, and so I love the result. But I am an intellectually serious person, and I can’t just pick and choose the supreme court decisions I find the deplorable, and then ignore all the rest.
My position is that democracy is not the best government because it produces the best results, but because it is the most just, in that the people being governed are the ones doing the governing. Thus democracies, unlike legal oligarchies, tend to produce the government that the people deserve. In the case of Texas in 2003, any place that would enforce a bigoted law like that deserves whatever it gets. What we didn’t deserve was the benevolent wisdom of the Supreme Court, and so for them to swoop in and save us from ourselves was unjust.
January 31, 2012, 12:10 amDavid Schwartz says:
That’s not the test. The test is whether it *does* thwart the preferences, not whether it was intended to.
For example, the right to due process means that if you can show that something is process that is due, you are entitled to it. It does *not* mean that if you can show that the framers would have considered it to be due then it is due. That’s the silly parody of originalism.
January 31, 2012, 4:56 amloki13 says:
I have to point this out- this is my favorite line. Really? So, people who advocate for our particular balance just aren’t worldly enough, like you? I mean, I can remember a whole conversation I had with ShelbyC about Germany’s anti-holocaust speech law (he was a natural rights guy, so it was kind of pointless, but still). I vaguely remember, like, long conversations in law school, and even, you know, law review articles about the cooperative benefits of different free speech regimes (although maybe those are out of favor now, being all international law-y stuff).
But still, I love this. Everyone who doesn’t agree with you doesn’t know about the rest of the world. I guess this make us real murikans!
January 31, 2012, 7:48 amloki13 says:
[EDIT- in previous post, cooperative is really comparative. Stoopid auto-correct.]
January 31, 2012, 7:49 amBored Lawyer says:
I don’t want to get all lawyerly on your ass, but you are applying a layman’s definition of fraud. At common law, fraud had nine elements, and each had to be proven with with specificity. Among these elements is the requirement that the plaintiff rely on the false statement and suffer actual “legal” damages and that the plaintiff
My understanding is that the SVA simply requires a false statement. It doesn’t require reliance, and it doesn’t actual damages. This is a rather large expansion over the 1st’s exception for fraud
While civil fraud requires these elements, criminal fraud does not. No need for the Govt. to show reliance nor damages by anyone. This is long settled in mail and wire fraud cases.
Of the 9 elements of common law fraud listed by the prior poster, only the first five need be shown in a criminal fraud prosecution.(1.a representation of an existing fact; 2.its materiality; 3.its falsity;4.the speaker’s knowledge of its falsity; 5.the speaker’s intent that it shall be acted upon by the plaintiff;)
There may be some extra elements between a mail fraud and a Stolen Valor violation, but it is not much, and it is hard to say that these differences are Constitutionally required. (Especially since the 10th Circuit has now held that the SVA requires both a showing of knowing falsehood and intent to deceive.)
BTW, on element No. 2 (materiality), the Supreme Court has held that fraud statutes require such a showing in Neder v. United States. However, it has also held that a different statute (the false statements to banks and federal agencies re loans, 18 USC @ 1014) does NOT require a showing of materiality. U.S. v. Wells (1997). So it seems that that element at least is not Constitutionally required.
January 31, 2012, 2:02 pmNo Theory of Jurisprudence says:
It was not intended to thwart states from, for example, passing laws prohibiting murder. If it *does* thwart that majoritarian preference, then something has gone wrong.
Actually, that’s no longer true, as “substantive due process” doesn’t require that you prove the procedure is “due” but only “prove” that it is “fundamental” or “natural” or some other nonsense.
There’s no silly parody. Originalism (which I’m not married to) may only hold that a procedure which is due cannot be suspended. The 14th Amendment’s due process under an originalist theory might hold that once a procedure is set forth for whites, you can’t deny the procedure to blacks.
What neither the 5th nor 14th had anything at all to do with, is affording homosexuals the right to marry. The judiciary should have some plausible constitutional basis for affording homosexuals equal rights to heterosexuals… and they don’t. It is up to us, the people, to ensure that homosexual’s rights are protected.
February 1, 2012, 2:15 amNo Theory of Jurisprudence says:
No. What I think is what I said: people who argue that the First Amendment is essential to a free society are ignoring an empirical fact about the world.
There might be some other reasons for cherishing the First Amendment. For example, someone could believe that more freedom is always better than less freedom, and honestly but mistakenly think that a country with a First Amendment is necessarily “more free” than one without.
You do not need to ask me “Really?” anymore. Please assume that if I make an argument, I really mean it.
February 1, 2012, 2:22 amDavid Schwartz says:
Right, but what will have gone wrong is that the Amendment would have been badly drafted. It’s not for Courts to fix that. The right to due process wasn’t intended to give people access to DNA evidence. But if access to DNA evidence is process that is due, that’s what it does, whether intended to or not.
February 1, 2012, 4:43 amloki13 says:
Interesting. What you actually said was:
There’s a difference between freedom of speech and the First Amendment. And that’s two different arguments. As illustrated by the differences between, say, the UK and the DPRK, I would argue that freedom of speech *is* fundamental to a free society. Full stop.
What makes people incredulous is your continued assertions that they haven’t considered that other countries exist without a First Amendment, as I snarkily pointed out. Every free, western country has some mechanism for allowing freedom of speech (with different balances).
So you’ve erected a strawman to argue against. No one seriously argues that the First Amendment is “essential to a free society.” They believe that free speech is essential to a free society (which I don’t think you’re seriously arguing against) and they happen to like our way of doing it.
February 1, 2012, 7:03 amBarb says:
Who is this unworthy judge who said (from the post above):
So I guess all fraud is legit ? All libel and slander? Granted, someone may say things of religions or persons which are not true, believing that they are true –but that’s different than claiming to be what you are not as a matter of historical record.
February 1, 2012, 6:49 pmDavid Schwartz says:
These laws arguably withstand strict scrutiny — that’s why you chose them as examples. The Stolen Valor act does not.
February 1, 2012, 11:00 pmloki13 says:
More importantly, those laws have a longstanding tradition. See Brown v. EMA. What we should be suspicious of is the legislature creating entirely new categories of unprotected speech. That’s where I see the problem. False statements of fact are either sufficiently punishable under old law (as, inter alia, fraud, defamation, or perjury) or should be unreachable.
For example, were the legislature to create a new category of unprotected speech “any false statement about the size of a fish you caught” I think that people would have problem with that. On the other hand, if someone receives a loan from another person based on catching the largest trout, when no such fish was ever caught, that could be actionable as fraud.
People that are familiar with the military know the following- few military personnel brag about their actual commendations and awards (I have known many family members for long periods of time before I was aware of how well they served our country) and should be suspicious of any that immediately drop their awards into casual conversation seeking to build their reputation (they are unlike Harvard grads in this way). And while a healthy respect for the military and service in it can be a good thing, it doesn’t need government protection- and if it does, there’s no reason the government can’t take this precedent and expand it to other areas (respect for postal carriers, respect for DMV personnel, respect for faceless government bureaucrats).
February 2, 2012, 9:21 amMario says:
Every film that is not a documentary involves statements that are knowing falsehoods. You miss my point, which is a sequoia in the forest—or are you seriously questioning whether film is protected at all as a medium (really?)? And you ignored other media like parody, satire, and so on which fall within the text of the statute. That would include pure speech of the same—facially overbroad. Or maybe you question the validity of overbreadth analysis at all because it was not how they did things in the 18th century. As I said, we simply cannot have a discussion as it’s too far removed from a normalist view, and we disagree on interpretations of history (clearly).
Good luck to you!
February 2, 2012, 11:07 amNo Theory of Jurisprudence says:
What if the Supreme Court held that “due process” in the 14th (or 5th) Amendment meant everyone was entitled to an exclusively white jury? If “that’s what it does” then that’s what it does, right?
The only reason that any “process” might be “due” is because the constitution says so. You can’t resolve constitutional interpretation disagreements by asserting that “X is process that is due.” The entire fight is over the scope of X. “Constitutional Intent” is an interpretative framework for the limits of X. What is your theory? Because it can’t be “X is whatever process is due.”
You caught me. I concede that free societies are interested in free speech. I disagree with anyone who thinks the First Amendment is essential to a free society. I also disagree with anyone who thinks that our system of protecting free speech results in more liberty.
Here, citizens can say whatever they want with impunity. This discourages participation in the political process, as public figures have no protection from the harmful defaming statements of strangers. Consequently, qualified public candidates shy from public service. The political process becomes unnecessarily combative, which means we’re fed sound bites as opposed to juicy morsels of actual proposed policy. Elections necessarily devolve to the lowest common denominator, which benefits unprincipled demagogues, who are the only people capable of winning elections in a society that would sacrifice intelligent discourse for the right to wear a naughty-worded jacket in public.
The rights the speech elements of the first amendment protect are trivial (the “right” to defame a public figure). The resulting chaos may not be. Civilized countries sort this out in the democratic process. We don’t. Neither does Iran.
That would be objectionable. If they passed a law that prohibited people from trafficking in fish in interstate commerce, that would be objectionable, too, but not protected by the First Amendment. Do you think the legislature is at risk of passing a “big fish” law? If not, why’d you bring it up?
I’m not married to the Stolen Valor Act, but it’s obviously not intended to protect people who should know better than to believe puffery by public figures. Most people should know better than to buy into Ponzi schemes; fraud laws protect the minority who don’t.
Patent nonsense. Statements about imaginary people can never be “knowing falsehoods” because they are statements about people who don’t exist.
Please stop asking me “really?”. I mean what I say.
In any event, of course I think film enjoys some protection under the statute. That doesn’t mean all film “falls into the text of a 1791 amendment.” Things that weren’t covered by the 1791 amendment won’t be covered simply because they are converted into “film”. “Film” is not protected; speech is.
They might, if they are “speech”. Some parody and satire might not be “speech”.
What a clever constitutional test. Of course “pure” speech prohibitions are “facially overbroad.” Now all we have to decide what is or isn’t “pure” speech. Do you have a theory?
Actually, yea, it seems pretty stupid to invent a test (like “overbreadth analysis”) which has no basis in history or law, when it’s much easier to ask: Does this law obviously violate the constitution? If the answer is no, maybe judicial restraint is called for, lest they just make it all up.
What do you think “normalist” means here? I looked up the word and I couldn’t figure out what kind of views you were accusing me of holding. Not trying to be a &&&& but I seriously don’t know how I’m supposed to respond.
February 3, 2012, 4:08 amDavid Schwartz says:
As I said, that’s the comical parody of originalism. If your point is simply that the Supreme Court can do objectively bad things, then I agree. But so can the people. So I’m not sure what conclusion we draw from that.
When a person says “you will get that which is due you”, no reasonable person could interpret that to mean “you will get what I think you are due”. The only sensible interpretation is that if something is in fact due you, you will get it. A right to due process of law means that if some process is in fact due, you have a right to it. That is, a showing that X is “due” leads to a finding that it is a right.
“Due process” is probably not the best example to choose of Constitutional interpretation because the Constitution doesn’t grant a due process right. It only makes due process a condition of certain deprivations. But as for what “due process” means, it means whatever process is in fact due. It doesn’t mean “what processes I, the speaker/writer, think are due”. If that’s what the framers meant, they would have been quite capable of saying so. They formulated a recipe (show X is due, you have shown X is a required prior to deprivation), not a result.
February 3, 2012, 2:54 pm