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.
ARGUMENT I. The Supreme Court Has Never Fully Defined the Scope of a “False Statements of Fact” Exception
As this Court’s Dec. 18, 2009 order recognizes, it’s not clear exactly when false statements of fact — even knowingly false statements — are constitutionally unprotected. [Footnote: “Knowingly false” is used in this brief as shorthand here for statements that are (1) made with knowledge of their falsehood or with conscious reckless disregard of a substantial risk that they are false — basically the New York Times v. Sullivan “actual malice” standard — and are (2) reasonably perceived as statements of fact, and not as fiction, hyperbole, humor, or parody, see Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 14 (1970); Hustler Magazine v. Falwell, 485 U.S. 46, 57 (1988).]
On the one hand, this zone of lack of protection extends beyond just defamation and fraud, see New York Times New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003). It also covers false light invasion of privacy, where the only damage is the offensiveness of the falsehood, not its injury to reputation. Time, Inc. v. Hill, 385 U.S. 374 (1967). It apparently covers knowingly false statements that intentionally inflict severe emotional distress, even in the absence of defamation or invasion of privacy. Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988). It covers perjury. Konigsberg v. State Bar, 366 U.S. 36, 50 n.10 (1961). It likely covers unsworn statements to federal officials, which are punishable under 18 U.S.C. § 1001. See, e.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982). It likely covers “trade libel,” even outside the special context of commercial advertising, Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990), even though trade libel does not injure the special individual dignitary interests that have long justified defamation law, Milkovich v. Lorain Journal Co., 497 U.S. 1, 22 (1990) (quoting with approval Rosenblatt v. Baer, 383 U.S. 75, 92-93 (1966) (Stewart, J., concurring)). It probably explains the continued soundness of Justice Holmes’ statement that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47, 52 (1919).
And it makes sense that such statements are generally constitutionally unprotected, because “there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). Once a sufficient mens rea — usually, “actual malice” — is shown, such false statements of fact are constitutionally punishable.
But on the other hand, the Court has made clear that some speech may not be constitutionally punished without regard to whether a factfinder concludes that the statement was made with “actual malice.” New York Times Co. v. Sullivan held that false statements about a government agency (as opposed to a particular government official) may not be punished, period. “For good reason, ‘no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.’” New York Times Co. v. Sullivan, 376 U.S. at 291 (quoting City of Chicago v. Tribune Co., 139 N.E. 86, 88 (1923)); see also Rosenblatt v. Baer, 383 U.S. 75, 83 (1966) (following New York Times Co. v. Sullivan on this score).
Likewise, the First Amendment probably limits prosecutions for alleged lies about history or science (at least outside commercial advertising, and absent defamation of a specific living person). A case like State v. Haffer, 162 P. 45 (Wash. 1916), in which defendant was found guilty of libeling President Washington — Washington state law then allowed prosecutions for defaming the dead — might well come out differently today. Schaefer v. United States, 251 U.S. 466 (1920), in which speakers were convicted for “willfully . . . [publishing] false reports” during World War I, might similarly come out in favor of First Amendment protection today. See id. at 494 (Brandeis, J., dissenting) (concluding that allowing such prosecutions “subjects to new perils the constitutional liberty of the press,” and “will doubtless discourage criticism of the policies of the government”). Prosecutions for Holocaust denial are probably forbidden by the First Amendment, even if a factfinder could be persuaded that the deniers are knowing liars and not just fools. See, e.g., Steven G. Gey, The First Amendment and the Dissemination of Socially Worthless Untruths, 36 Fla. St. U. L. Rev. 1 (2008) (so concluding); Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. Rev. 1107, 1116-20 (2006) (likewise); James Weinstein, Speech Categorization and the Limits of First Amendment Formalism: Lessons from Nike v. Kasky, 54 Case W. Res. L. Rev. 1091, 1105 n.64 (2004) (saying that such statements “may well” be protected). But see Kenneth Lasson, Holocaust Denial and the First Amendment: The Quest for Truth in a Free Society, 6 Geo. Mason L. Rev. 35, 85 (1997) (concluding that Holocaust denial can be punished, but as part of a broader argument — which is likely inconsistent with current First Amendment law — that “hate speech” and “[g]roup[ ]libel” can be punished as well).
Perhaps because of this uncertainty, there is also a controversy about whether false statements of fact in election campaigns may be punished, even using comparatively mild civil sanctions. Compare, e.g., State v. Davis, 27 Ohio App. 3d 65 (1985) (affirming criminal conviction for knowingly making false statements in a political campaign), with State ex rel. Public Disclosure Comm’n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998) (striking down a law imposing civil liability for knowingly false statements in election campaigns). Likewise, the law is unsettled for some other categories of false statements as well. Many knowingly false statements are unprotected, because false statements of fact lack constitutional value. But some knowingly false statements are protected, and others may well be, too.
II. Punishing False Statements About One’s Own Credentials Is Especially Unlikely to Deter Valuable Speech
This uncertainty in the false-statements-of-fact caselaw means that there is no clear answer to whether the Stolen Valor Act is constitutional. Nonetheless, several factors point to the conclusion that it probably is, if it is limited — as the Court’s Dec. 18, 2009 suggests — to knowingly false claims.
Why would any knowingly false statements of fact be constitutionally protected at all? The chief reason is probably the one the Supreme Court identified in New York Times v. Sullivan: The risk of liability for falsehoods tends to deter not just false statements but also true statements. New York Times v. Sullivan, 376 U.S. at 278-79. Some speakers may sincerely believe, for instance, that some statement about the government is true, but may realize that they might be mistaken. Other speakers may be confident that the statement is true, but may worry that a hostile jury will wrongly conclude that the statement is false. In either case, the speakers may be deterred from making true statements — statements that do have constitutional value — for fear that the statements will be punished as false statements. That is the famous “chilling effect” of libel law, id. at 300-01 (Goldberg, J., concurring in the judgment), and of punishments for false statements more broadly.
New York Times generally tried to deal with this problem by requiring clear and convincing evidence that the speaker knew the statement was false. But for statements about the government, the Court created a rule of per se constitutional protection, without any need for a jury to guess whether the speaker knew that his statement was false. The Court did not set explain in detail its rationale for creating this per se rule; it said, “For good reason, ‘no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence,’” id. at 292, but did not elaborate on that “good reason.” But it seems likely that the reason the Court had in mind was that an “actual malice” rule for alleged libels on the government would only diminish, and not eliminate, the chilling effect of defamation liability.
The same per se rule of constitutional protection might well apply to false statements about historical figures, historical events, war news, or scientific theories. The truth about such matters is especially likely to be uncertain. Resolving what is true may be an especially politicized endeavor, with judges, prosecutors, and jurors of different ideological persuasions reaching very different conclusions about science or history or complex current events. The chilling effect of possible liability would thus be especially great in many such cases.
Moreover, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’” New York Times, 376 U.S. at 279 n.20 (quoting John Stuart Mill, On Liberty 15 (1947)). In historical or scientific matters, for instance, our main assurance that conventional wisdom is correct is precisely that historians or scientists have both reached and maintained a consensus on the conventional wisdom despite people’s unfettered freedom to criticize and try to rebut that consensus. Banning factual criticism of a historical or scientific theory — even when the prohibition is limited only to criticism that a jury finds to be false and insincere — cripples the process of academic debate and review, and makes us less confident that the outcome of the academic debate is correct.
Yet punishing people’s false claims about their own military decorations implicates none of these concerns. Whether I have received a military decoration is unusually easy for me to be sure about, and much easier than it is for me to be sure about whether some other person has done something bad (the issue in most libel cases). Cf. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 n.25 (1976) (concluding that false statements in commercial advertising should be more easily punishable than other false statements because “[t]he truth of commercial speech . . . may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else”). The truth of such claims is also unusually easy for the jury to determine with precision, so jurors’ ideological sentiments are relatively unlikely to influence their judgment. And protecting false statements about such matters is not necessary for protecting the soundness of historical or scientific debate.
It is true that false claims about one’s medals will not ordinarily cause as much harm as, say, libel may. But because false statements of fact are seen as generally lacking constitutional value, the Court has never required a showing of any “compelling government interest” in order to restrict such statements; the compelling interest test has generally been reserved for restrictions on valuable speech (such as statements of opinion or true factual assertions, see, e.g., Florida Star v. B.J.F., 491 U.S. 524 (1989)) and not for restrictions on low- or no-value speech. None of the cases cited at the start of Part I, which authorized punishment or liability for false statements of fact, used the compelling interest test.
In fact, some of those cases involve harms that are considerably more modest than those implicated in the typical libel case. Liability for false light invasion of privacy, for instance, is not premised on any injury to a person’s reputation, and on the often devastating personal, social, and professional effects that reputational harm can cause. Rather, false light liability is aimed at compensating for the sense of “mental distress from having been exposed to public view” in a misleading way, even when the speech is “laudatory” rather than derogatory. Time, Inc. v. Hill, 385 U.S. 374, 385 n.9 (1967). Such distress is a nontrivial harm, but not nearly as grave as that caused by libel; it is far from clear that there is a compelling government interest in preventing such distress. Nonetheless, even such a relatively modest harm can justify restricting knowingly false statements of fact, at least where the factors discussed above — the danger of an undue chilling effect, or the value of unfettered debate to scientific or historical inquiry — are absent.
And the harm caused by false claims of military honors is substantial, though not as great as the harm caused by other statements. People who lie about decorations generally do so for a reason: They may want to get elected to public office, see, e.g., Government’s Memorandum of Points and Authorities in Opposition to Defendant’s Motion to Dismiss Indictment, United States v. Alvarez, No. 2:07-cr-01035-ER (C.D. Cal. Jan. 14, 2008), https://volokh.com/files/alvarezresponse.pdf, or to get more credibility for their own statements in another’s election campaign, or to get more credibility in some nonelectoral political debate, or even just to get more respect from neighbors, acquaintances, and potential business associates. They are thus trying to manipulate people’s behavior through falsehood, and their statement is quite likely to indeed affect others’ behavior (especially since having a military decoration is often seen as an especially important mark of good character). Just as trying to affect federal agent’s behavior through falsehoods is a significant harm, see 18 U.S.C. § 1001, so trying to affect private citizens’ behavior through falsehoods is a significant harm.
III. Though the Stolen Valor Act Treats Some False Statements Differently from Others, Such Content Discrimination Is Likely Constitutionally Permissible
Finally, any restriction on certain kinds of false statements of fact must be consistent with the nondiscrimination principle of R.A.V. v. City of St. Paul, 505 U.S. 377 (1992): “[C]ontent discrimination” even within a class of “proscribable speech” is presumptively unconstitutional, id. at 387, because it may “impose special prohibitions on those speakers who express views on disfavored subjects,” id. at 391. Thus, for instance, a law punishing knowingly false statements about the war in Afghanistan might well be unconstitutional, because it might be an attempt to specially burden one side of the debate, and make criticisms of the war more dangerous.
But though the Stolen Valor Act does treat some false statements differently from others, it appears to fit within one of the exceptions to the R.A.V. principle: “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” Id. at 390. False claims of military honors are not limited to any particular viewpoints, or even particular topics of debate. They can equally be raised by people who are anti-war, who are pro-war, or who are just trying to get themselves elected to an office that is entirely unrelated to the military.
For these reasons, the Stolen Valor Act, if read to apply only to knowingly false representations, is likely facially constitutional.