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Friday, March 09, 2012

On lying and the First Amendment

I want to jump off from Lyrissa's post on the Stolen Valor Act and First Amendment protection for lies with a couple of random points.

First, having read the argument transcript, I believe the Stolen Valor Act is going to be struck down. I could not count five votes to uphold it, unless the Court adopts the severe narrowing construction the government proposed, under which the statute applies only to statements of pure fact about oneself. But I am not sure the line can be drawn. We can debate whether this is a speech-protective Court (Erwin Chemerinsky thinks not). But in several cases the Court, by a strong majority, has been unwilling to narrowly construe federal statutes to avoid First Amendment problems.

Second, one distinction that may come up between the SVA and the electoral lies cases is who is telling the lie and about what. The key to the government's argument in Alvarez is that Alvarez was telling the lie about himself and whether he had won the Medal of Honor. On the other hand, electoral-lies laws are primarily concerned with statements made about a candidate by someone else (although the statutes by their terms also would reach self-referential statements). This fits into the government's "breathing space" argument--we protect some false statements of fact because of the risk that false statements will happen in public debate and the difficulty of telling truth from falsity. But when someone is talking about themselves, we don't have that same risk or difficulty; Alvarez knew he had not received any military honors and a person knows all the facts about himself. The Chief and Justice Alito made much of this issue during the argument. On the other hand, it may not always be so easy to tell whether one's statement about oneself is true, a point illustrated by William Saletan's Slate piece discussing the "truth" of Mitt Romney's insistence that he has not changed his stance on reproductive freedom. If so, the distinction between speech about oneself and speech about others loses its analytical force. And then Lyrissa is right that the result in Alvarez may determine the result in the challenges to the electoral-lies statutes.

Finally, I am looking forward to reading Christina's UCLA Discourse piece. The argument about seditious libel and its connection to protection for general lies seems to work on one level, but not on another.  It is true that First Amendment doctrine has properly rejected any government interest in ensuring respect for the honor and authority of government and government institutions (such as the military)--the interest used to justify both seditious libel and the SVA (although probably not the electoral-lie statutes). And I agree that it is troubling that the government is defending a statute such as the SVA via this outdated interest.

But note the critical difference between the SVA and seditious libel: the latter applied not only to false statements of fact, but also to true statements of fact, as well as to matters of opinion, public policy preferences, and rhetorical hyperbole. In fact, the line about seditious libel under British law was "the truer the statement, the greater the harm." Thus, it may be possible for the Alvarez Court to uphold the SVA--applying as construed only to factual statements by a person about himself--while still adhering to the admonition in New York Times v. Sullivan that the "court of history" has ruled that seditious libel is inconsistent with the First Amendment. Then the question is where between those end points electoral lies fall.


Posted by Howard Wasserman on March 9, 2012 at 10:07 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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True. But of these, the second one (more likely to chill) suggests that electoral lies probably warrant *greater* protection than the type of lie in Alvarez.

Posted by: Howard Wasserman | Mar 9, 2012 1:52:38 PM

There are other relevant distinctions between false claims of military honors and electoral lies. Lies about military honors might be considered less likely to threaten the public good than lies about ballot issues or candidates for elective office, since the latter can essentially "defraud" the electorate (using the term loosely) and lead to bad policy outcomes. Also, criminalizing election lies is more likely to chill important political speech, because the line between lies and truth is harder to draw in this context and because you have political opponents with a vested interest in reporting the lies. Also, the election lies statutes usually involve an administrative body determining truth or falsity at the outset (perhaps followed by prosecution and trial); whereas, the SVA involves trial by jury. Also, the government can easily provide the information necessary to allow citizens to verify who has received military honors (i.e., a website); whereas, it is far harder to provide an efficient and effective alternative mechanism for correcting electoral lies.

Posted by: Lyrissa | Mar 9, 2012 1:44:17 PM

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