The Volokh Conspiracy

The 2-to-1 decision, came in United States v. Alvarez; I think that this is probably not quite right, see this amicus brief I filed in a similar case, though I think the question — what restrictions does the First Amendment impose on laws that restrict knowing lies? — is difficult, and the majority makes a solid argument for its position. I’m not sure whether I’ll have a chance to blog more about this in the next few days, but I thought I’d note the decision.

Note, by the way, that the decision did indeed hold that the Stolen Valor Act is unconstitutional even if limited to knowing falsehoods (a limiting construction that the court could have and should have imposed, if it were sufficient to make the statute constitutional); see PDF pp. 19-20.

The case is United States v. Strandlof, which I discussed here, and in which I filed this amicus brief.

I found the opinion to be quite thoughtful and interesting, but I ultimately wasn’t persuaded (despite the recent United States v. Stevens precedent, on which the court heavily relies). The court’s theory seems to suggest that, while fraud is constitutionally unprotected, attempted fraud is protected, at least so long as no-one who relied on the attempted fraud can be identified. And it also seems inconsistent with the Court’s acceptance of false-light invasion of privacy claims — see my brief for more details on those cases — which rest neither on a specific well-rooted false light invasion of privacy exception nor on any plausible judgment that the false light tort passes strict scrutiny. (Note that the Court has treated the imposition of civil liability for speech much the same as the imposition of criminal liability, so I don’t think the false light cases can be distinguished simply on the grounds that they are tort cases and not criminal cases.) Because of the false light cases, and various others, it seems to me (and I so argue in my brief) that the relevant First Amendment exception is a general one for knowingly (or recklessly) false statements of fact, albeit with some narrow exceptions-to-the-exception, and knowingly false factual claims of having received a medal would fall into that.

But in any event, the court took a different view, and it will be interesting to see what the Tenth Circuit does, since I expect that the government will appeal.

UPDATE: Note that my analysis assumes that the Stolen Valor Act would be interpreted as limited to situations where the display of a medal would be understood as a statement of fact, rather than as fiction, hyperbole, humor, or parody. But I think that’s a sensible interpretation, and one that a court could easily apply as a clarifying construction of the statutory element of “falsely represent[ing]” oneself as having gotten a medal.

A pretty poor argument (see p. 6), it seems to me — the law applies to speech of a certain content, and is justified by a worry that the content of the speech will mislead people.

I’ve argued that the ban is constitutionally permissible, because it fits within the knowingly-false-statements-of-fact exception to First Amendment protection. But it is definitely not content-neutral.

I decided to take up the court’s open invitation to file amicus briefs in this case (follow the link if you want more facts); the Rutherford Institute has also apparently decided to do the same. Since the filing date has been extended by several days, I thought I’d post a fairly early draft of the brief and ask for corrections and suggestions, both as to the wording and as to the substance. I want the brief to be as legally sound and as helpful to the court as possible.

I plan on filing the brief Friday, January 15, so if you have comments by Thursday, January 14, I’d love to hear them. If you have broad thoughts that you think might contribute to an interesting conversation, please feel free to post them in the comments; but if you have narrower items (typo corrections, wording suggestions, and the like), please feel free to e-mail them to me at volokh at law dot ucla dot edu. Please also keep in mind that my goal here is to provide helpful legal analysis, so arguments that the existing Supreme Court precedents are incorrect and should be overturned — something that the district court in this case obviously can’t do — won’t be useful here. The PDF version of the brief is here [UPDATE: replaced the draft PDF with the final version]; I also quote the substance below [UPDATE: The following is posted by permission of the Board of Trustees of the Leland Stanford Junior University, from the Stanford Journal of Civil Rights and Civil Liberties at 6 STANFORD J. C.R. & C.L. (forthcoming 2010), where this brief will be reprinted]:

INTEREST OF THE AMICUS CURIAE

Eugene Volokh has taught First Amendment law for more than 10 years, and has written over 30 law review articles on the First Amendment, as well as the casebook The First Amendment and Related Statutes: Problems, Cases, and Policy Arguments (Foundation Press, 3d ed. 2007). In particular, he has looked closely at the “false statements of fact” exception to First Amendment protection. In response to this Court’s Dec. 18, 2009 order, he asks for leave to file the attached amicus brief, which offers an impartial analysis of the First Amendment question raised by this case.

INTRODUCTION AND SUMMARY OF ARGUMENT

The boundaries of the “false statements of fact” exception to First Amendment protection are not well-defined. There is indeed such an exception, and it is not limited solely to defamation and fraud: It covers many kinds of false statements of fact, including false light of invasion of privacy, intentional infliction of emotional distress through false statements (even when the statements are not defamatory), trade libel, perjury, unsworn false statements of fact made to government officials, and falsehoods that are likely to lead to physical harm. And while some of these statements are not only false but very harmful (libel is the classic example), others are considerably less harmful: Consider, for instance, false statements that are not defamatory but that place someone in a false light.

But some false statements of fact are immune from liability, even if they are knowingly false. This is most clearly true for knowingly false statements about the government, but also probably true for knowingly false statements about broad historical, scientific, or current-events controversies, such as the Holocaust or global warming. And the Court has never articulated a clear rule for which knowingly false statements of fact are constitutionally protected and which are not.

Yet while there is no general well-settled rule for which knowingly false statements of fact are constitutionally unprotected, punishing false statements of fact about one’s own medals seems to be constitutionally permissible, because the reasons for protecting some knowingly false statements of fact do not apply to such lies. In particular, because such claims about having gotten a medal are so objective and verifiable, punishing false statements in this field is especially unlikely to deter true statements.

Finally, the Court in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), has made clear that some content discriminations within unprotected categories of speech are unconstitutional because they pose the risk of viewpoint discrimination. But the Stolen Valor Act does not pose such a risk, and seems likely to fit within one of the exceptions the R.A.V. court identified.

Continue reading ‘Request for Comments on a Draft Amicus Brief in the Strandlof Stolen Valor Act Case’ »

Is there an exception to First Amendment protection for knowingly (and recklessly) false statements of fact, or are there several narrower exceptions for libel, fraud, and the like? I’ve blogged before about this question (I’m inclined to think the answer is that there’s a general reckless/knowing false statements of fact exception, subject to the limits imposed by R.A.V. v. City of St. Paul, but I’m not sure this is so). There’s now a new opinion, United States v. Strandlof (D. Colo. Dec. 19), in which this question is raised; and the court both lays out the issue well and recognizes that the question is difficult enough to merit more briefing, including amicus briefing. (The case, by the way, involves Rick Strandlof, who — under the name Rick Duncan — claimed to be a wounded and decorated Iraq War veteran, and who tried to use this claim to “rally[] opposition to the Iraq war and support for struggling vets.”)

Here’s the bulk of the opinion:

Defendant is charged with violating the Stolen Valor Act of 2005 (the “Act”), codified at 18 U.S.C. § 704(b) & (d). As originally enacted, section 704 criminalized the wearing, manufacture, or sale of unauthorized military awards. Congress, however, felt that these protections were inadequate to protect “the reputation and meaning of military decorations and medals.” According to one of the bill’s sponsors, “there are some individuals who diminish the accomplishments of [military] award recipients by using medals they have not earned. These imposters use fake medals — or claim to have medals that they have not earned — to gain credibility in their communities. These fraudulent acts can often lead to the perpetration of very serious crimes.”

The Act makes it a crime to

falsely represent[] [oneself], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item …

18 U.S.C. § 704(b). Section 704(d) provides enhanced penalties for violations implicating certain types of military honors, including the Purple Heart and the Silver Star. The Amended Information charges defendant with falsely representing himself to have been awarded a Purple Heart on four separate occasions in 2006 and 2009, and falsely representing that he had been awarded a Silver Star on one occasion in 2009. The Amended Information does not charge defendant with wearing unauthorized military decorations or otherwise violating 18 U.S.C. § 704(a), nor does it allege that any third party was actually misled or defrauded by defendant’s misrepresentations.

The express language of the Act, now codified at section 704(b), is markedly different from the language of the original statute, codified at section 704(a). Whereas section 704(a) punishes the act of knowingly wearing, manufacturing, or selling military decorations without authorization, section 704(b) purports to criminalize the mere representation that one has earned such awards. [Footnote: Although the Act prescribes no mens rea requirement, under accepted doctrines of statutory interpretation, one may be implied.] It requires no further action or effect, such as that the falsehood induced reliance thereon or otherwise caused detriment to innocent third parties. Moreover, the penalties imposed by the Act are based clearly on the content of the speaker’s representation, i.e., that one has received the military honors represented by the decorations.

In short, it appears to this court that the Act purports to criminalize pure speech on the basis of its content. A law that imposes a content-based restriction on pure speech generally is subjected to strict scrutiny and cannot stand unless it is narrowly tailed to serve a compelling government interest. A compelling governmental interest is an interest “of the highest order.” Accordingly, the universe of interests sufficiently compelling to justify content-based restrictions on pure speech is extraordinarily limited.

My research has revealed no precedent from any jurisdiction holding that the protection of the honor and reputation of military awards qualifies as a compelling government interest sufficient to justify a content-based regulation of pure speech. Indeed, Supreme Court precedent regarding restrictions on flag burning, a different but not totally unrelated area, would seem to indicate that it does not. See Texas v. Johnson, 491 U.S. 397, 403-07 (1989). At least one federal court has found that the government has a “legitimate” interest in safeguarding the dignity associated with military decorations in connection with the expressive conduct of wearing unauthorized military medals. United States v. McGuinn, 2007 WL 3050502 at *3 (S.D.N.Y. Oct. 18, 2007). [Foonote: However, I am not persuaded that this decision withstands scrutiny in light of Texas v. Johnson.] That decision, however, is of little import here, since regulations that impact expressive conduct, such as flag burning and the wearing of military medals, are typically subject to a more lenient standard, and can be upheld on a less stringent showing of governmental interest, than those that are directed at pure speech. See Johnson, 109 S.Ct. at 2540 (“The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”). A determination that there is a “legitimate” or “important” government interest in preserving the reputation and dignity of military awards, therefore, does not suggest that such interest necessarily would be found compelling.

On the other hand, it is not readily apparent to this court whether and, if so, to what extent, these precedents apply when the speech complained of is admittedly a false statement of fact, untethered from an expression of an idea or opinion. Defendant relies heavily on New York Times Co. v. Sullivan, 376 U.S. 254 (1964), for the proposition that tolerance of some false speech is required in order to preserve the free exchange of ideas that is the foundation of our democratic society. Yet it is not at all evident how, if at all, that decision, which established standards governing the circumstances under which media outlets may be held civilly liable for defamation, translates to the realm criminal law. Of course, “[f]raudulent misrepresentations can be prohibited and the penal laws used to punish such conduct directly.” Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637-638 (1980). But see United States v. Williams, 553 U.S. 285, __ (2008) (Souter, J., dissenting) (“The fact that fraud is a separate category of speech which independently lacks First Amendment protection changes the analysis … although it does not necessarily dictate the conclusion. The Court has placed limits on the policing of fraud when it cuts too far into other protected speech.”). Yet the Act does not require that anyone be defrauded, misled, or otherwise harmed by the misrepresentation, and the Amended Information does not so charge.

The current briefing attendant to the motion on these issues is inadequate to permit the court to make a well-informed decision. Given the intricacies and foibles of First Amendment law, it would not surprise the court to learn that additional issues and considerations that also should be addressed and analyzed. Thus, I will require the parties to submit supplemental briefing addressing the issues raised herein as well as any others that may be implicated. In addition, I will invite amicus curiae briefs, subject to the requirements and restrictions set forth below.

THEREFORE, IT IS ORDERED as follows:
1. That defendant SHALL FILE a supplemental brief pertinent to his Motion To Dismiss Information [#13] filed December 2, 2009, on or before January 4, 2010;
2. That the government SHALL FILE a supplemental response brief on or before January 11, 2010;
3. That any amicus curiae MAY FILE a motion for leave to file a brief regarding the issues raised by an inherent to the motion by no later than January 11, 2010. Any such motion must: a. State the movant’s identity and interest in the case;
b. Indicate whether the movant supports granting or denying defendant’s motion to dismiss; and
c. Include a proposed brief ….