Archive | Knowingly False Statements of Fact

Stolen Valor Act Held Unconstitutional

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 [...]

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Federal Government Argues that Ban on False Claims of Having Gotten a Military Medal Is “Content-Neutral”

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. [...]

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Request for Comments on a Draft Amicus Brief in the Strandlof Stolen Valor Act Case

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

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The First Amendment and Knowingly False Statements of Fact

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

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