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Thursday, March 08, 2012

Electoral Lies and Stolen Valor: Is the Cure Worse Than The Disease?

Does the First Amendment protect lies that cause only diffuse and intangible harms? That's the issue at the heart of U.S. v. Alvarez, which is currently before the Supreme Court and which addresses the constitutionality of punishing those who lie about receiving military honors. (Listen to the oral arguments in Alvarez here.) It is also the issue at the heart of a petition for certiorari in 281 Care Committee v. Arneson., 638 F.3d 621 (8th Cir. 2011), which addresses the constitutionality of a Minnesota law that makes it a "gross misdemeanor" to make a knowingly or reckless false statement about a ballot issue or a candidate during an election campaign. Though Alvarez and Arneson are p0tentially distinguishable, the Supreme Court decision in the former will inevitably shape the answer to whether the Minnesota election law statute, and the sixteen other state statutes like it, is ultimately deemed constitutional. I've long been interested in this topic (see my essay, Where's the Harm?), so it is particularly nice to come across Christina Wells' new article (discussed below), which breathes fresh life into the debate over whether lies receive First Amendment protection.

Your stance in this debate is likely shaped by how you begin your analysis. If you start by asking whether intentional or reckless falsehoods have any constitutional value--whether they make any positive contribution to public discourse--then you are more likely to conclude that criminalizing lies is constitutional, even if they cause no harm. If you start with the presumption that government may not regulate speech without an important or perhaps even compelling justification, then you are more likely to presume that lies causing only diffuse harms are protected by the First Amendment.

First Amendment jurisprudence does not protect falsehoods as such, but it does acknowledge that falsehoods are sometimes inevitable in public debate and that it is not always easy to distinguish truth from falsity. Therefore, the First Amendment does not allow punishment of merely negligent falsehoods, and it broadly protects speech that cannot be interpreted as stating actual facts or that is not provably false. But all of the Supreme Court cases allowing the punishment of lies involved lies that caused concrete harms--lies that defamed an individual (or corporation), or invaded his privacy, or enabled fraud. In contrast, the question before the Court in the Stolen Valor case (Alvarez) is whether the First Amendment allows an individual to be punished for an intentional or reckless falsehood, doubtless offensive to most, that harms public discourse by polluting the information stream, and thereby diluting the value of military honors and muddying the message the government tries to convey by awarding them. Similarly, the question with regard to statutes regulating knowingly or recklessly made falsehoods during election campaigns is whether the harm they cause--pollution of the stream of information available to voters about candidates and issues and p0ssible distortion of electoral outcomes--is sufficient to justify government regulation.

Even granting that lies potentially pollute public discourse, one might still question whether a governmental remedy is needed. Mr. Alvarez, who lied about receiving the Congressional Medal of Honor, was detected after he told his lie to a former Marine who uncovered the truth in "just minutes" after "a few text messages and a check of a website with information on the fewer than 100 living Congressional Medal of Honor winners." And lies during election campaigns can be "policed," albeit imperfectly, by news media, websites like Politifact, and ordinary citizens willing to engage each other online and off. Even if these alternative methods for policing falsehoods do not work as well as government action, it is still worth questioning whether government investigation of political truths might cause enough negative effects that the government cure for lies would be worse than the disease.

In her new article forthcoming in 59 UCLA L. Rev. Discourse (2012) and titled Lies, Honor, and the Government's Good Name: Seditious Libel and the Stolen Valor Act, Chris Wells uncovers new evidence of negative consequences flowing from governmental suppression of lies. She does so, perhaps paradoxically, by delving into the history of prosecutions for seditious libel and comparing them to the regulation of lies under the Stolen Valor Act. (Get her article on ssrn here ).

Professor Wells points out that the government's asserted justifications for punishing seditious libels are similar to its justifications for punishing false claims to military honors. "Historically, government officials justified seditious libel prosecutions by claiming criticism undermined the government's honor and authority and reduced the public's respect for it, ultimately threatening national security. . . .The government's justifications for the Stolen Valor Act are eerily similar. The government seeks to punish all intentional lies about receiving a military honor because they 'misappropriate the prestige and honor associated with the medal.'" The argument further links lies about the medals to impairment of military readiness, ultimately "punish[ing] lies because they arguably undermine respect for government or government personnel." (Id. at 1-2.)

Professor Wells then traces the English roots of seditious libel and the rise and fall of seditious libel prosecutions within the United States. She recounts, of course, the debate over the Sedition Act of 1798, but she also discusses the punishment of seditious speech under the Espionage Act of 1917, when thousands were arrested simply for criticizing the US war effort. She notes: "Courts, applying a combination of constructive intent and the 'bad tendency' test, convicted hundreds" of critics of the war effort, on the grounds that their criticisms would undermine that effort. Gradually, however, the Supreme Court came to appreciate that punishing speech based on "bad tendency" insufficiently constrained official discretion, and the "Court developed its modern low value speech framework largely in response to [this problem.]" (Id. at 12).

Under this framework, the low value categories of speech all involve "independent harms" apart from their putative effects on government reputation or prestige. As Professor Wells writes, "The harm requirement is integral to creating low value speech categories. It allows the Court to create narrow categories that do not punish speech because of its disfavored content, but because that speech in a particular context makes no contribution to the exchange of ideas as evidenced by external indicia of harm." Under this framework, the government may not begin with the presumption that lies are unprotected because they do not involve "speech that matters." Instead, it must begin with identification of concrete harm caused by the speech it seeks to regulate, for any other approach gives undue discretion to government officials to suppress speech they dislike. Professor Wells' argument in its full form is cogent and persuasive, and I hope I've not done it an injustice in my summary. It is my hope that our Supreme Court will take note of the lessons of the history of seditious libel Chris explains, lest they doom us to repeat it.

[Full Disclosure: Christina Wells is my co-author, together with Ron Krotoszysnki, Jr., and the late Steve Gey, of an Aspen casebook on First Amendment Law. This blog post was inspired by this Adam Liptak article on Ohio's election falsehoods statute.]

Posted by Lyrissa Lidsky on March 8, 2012 at 03:46 PM in Article Spotlight, Constitutional thoughts, Criminal Law, First Amendment, Lyrissa Lidsky | Permalink


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Interesting piece -- though I think laws surrounding election lies are really a separate creature from the "Stolen Valor" types of lies. And I will admit to be much more comfortable with the former than the latter. Regarding electoral lies, while it is true, as you state, that "lies during election campaigns can be 'policed,' albeit imperfectly, by news media, websites like Politifact, and ordinary citizens willing to engage each other online and off," when you have certain networks perpetuating lies; organizations like Politifact coming under increasing fire (deservedly) for trying to maintain a political balance in their falsehood reporting, regardless of whether that balance is warranted; and then the morass of the internet, I think government action is the only thing that will stand as a true deterrent to electoral lies. Of course, the FEC has become toothless, as one party has determined it will not allow the FEC to exercise its functions, but the FEC fines are too little, too late, and do not have any impact of the outcome of an election. I do not know how the 16 states you mention operate, but I like what they do in the UK. If a candidate has lied in a campaign or committed some kind of electoral fraud, they re-run the election for that seat. Now there is an incentive for candidates to stay on the straight and narrow.

Posted by: DHMCarver | Mar 9, 2012 2:57:48 PM

Having read Professor Wells's paper on SSRN, I am afraid that I find myself unpersuaded. As she acknowledges, the Sedition Act (which permitted only a defense of truth) and the Espionage Act (which didn't even permit such a defense) had far more potential to suppress truthful speech than the Stolen Valor Act. Under the Stolen Valor Act, only intentional deception (about an issue of historical fact) is sufficient for liability. This standard would be regarded as posing an insufficient threat of suppressing protected speech if there were an individual victim, as in a defamation action, at least under current doctrine. The fact that there may not be an identifiable victim of the type deception proscribed by the Stolen Valor Act, however, does not strike me as having any relevance to the question whether liability for intentional falsehood creates an unacceptable risk of chilling protected speech. Moreover, violations of the Stolen Valor Act implicate a government interest that the Court has found sufficient to regulate false speech --the interest in preventing fraud (even before there is an individual victim). It strikes me that violations of the Act are a kind of fraud -- an effort to deceive others in order to enhance the violator's credibility or prestige. I do not grasp why this interest is not sufficient to support a prohibition on intentional falsehood.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Mar 9, 2012 4:04:32 PM

I think a reasonable case can be made that the law is not viewpoint neutral, raising R.A.V. v. St. Paul problems:


The law is a largely empty gesture that I have seen ridiculed by many actual veterans. The article is interesting but sedition is rather more broad and clearly covers much more protected ground in practice than the very narrow law here. But, it wouldn't take much to find constitutional fault with such a selective act of symbolism.

"But there is no constitutional value in false statements of fact."

This also can be overblown. Justice Breyer during the oral argument of Lawrence v. Texas: "Could they say, for example, it is against the law at the dinner table to tell really serious lies to your family?"

The implication seems to be "no," but why not? There IS some constitutional value to discretion to tell private lies, for instance, dignity benefits to certain people. Judge Kozinski below referenced this private speech benefit. Prof. Volokh alluded to it but noted that there is little real chance of legislatures actually invading that sort of thing. This was noted in a co-written amicus brief supporting the law. Later, on his blog, he discussed a bill in Arizona that would require teachers to not say things in class rooms, even university professors, that would violate broadcast standards.

He is well aware of the breadth of inane local legislation, so his comment was far from reassuring.

Posted by: Joe | Mar 9, 2012 8:53:34 PM

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