Alvarez Brief, Part II: How First Amendment Doctrine Could Deal With Such Restrictions on Knowing Falsehoods

There are six general approaches that this Court might take to these sorts of restrictions.

(For purposes of our discussion, we will set aside the question whether, under United States v. Stevens, 130 S. Ct. 1577, 1584-86 (2010), the approach must be chosen based solely on which First Amendment exceptions have been historically long recognized.

We will assume that statements in this Court’s precedents that “there is no constitutional value in false statements of fact,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), and “[c]alculated falsehood falls into that class of utteranceswhich are categorically unprotected, Garrison v. Louisiana, 379 U.S. 64, 75 (1964), leave this Court with flexibility in choosing how to define the constitutional protection offered to knowing falsehoods.

We anticipate that the parties and other amici will discuss the historical question, which is complicated by the fact that many restrictions that were accepted by the courts shortly after the Framing — including seditious libel law — have since been rightly rejected by this Court. But our tentative view is that there is some evidence, though not overwhelming evidence, that the freedoms of speech and of the press were seen in the early Republic as excluding falsehoods generally, and not just personal libels, financial fraud, or perjury. See, e.g., The Law Practice of Alexander Hamilton: Documents and Commentary 811 (Julius Goebel ed. 1981) (reprinting Alexander Hamilton’s defense argument in People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. 1804), that the freedom of the press extends to “the right of publishing the truth, from good motives and justifiable ends, though it reflect on government, on magistrates, or individuals,” an argument that was not included in the Johnson’s Cases report but that was printed elsewhere at the time); Respublica v. Dennie, 4 Yeates 267, 1805 WL 911, *4 (Pa. 1805) (expressly adopting Hamilton’s view, in a case involving alleged libel against the government); United States v. Sheldon, 5 Blume Sup. Ct. Trans. 337, 1829 WL 3021, *11 (Mich. Terr. 1829) (expressly adopting Hamilton’s view, apparently with reference to false statements that interfere with “the good of society” and not just with private rights); Commonwealth v. Kneeland, 20 Pick. 206, 219 (Mass. 1838) (taking the view that “falsehood against * * * institutions and governments” as well as against “individuals” was constitutionally unprotected).)

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