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Friday, June 29, 2012

Thoughts on Alvarez

As a citizen and admitted liberal Democrat, my main focus going into yesterday was on ACA. As an academic, my real interest was in United States v. Alvarez, the challenge to the Stolen Valor Act. My partisanship trumped my intellectual interests for a day (there I go, ignoring our motto again), but now I'm back. Mary-Rose Papandrea does a good analysis at CoOp and she and I have similar First Amendment visions, so I generally agree. [Update: Margot Kaminski has more thoughts, including a tension between Justice Breyer's approach and the commercial speech doctrine and about other areas of in which the issue of protection for false speech may arise]

A few further thoughts.

1) All three opinions seem sedate, without a lot of the soaring rhetoric and efforts to separate the speech from the speaker that we often see in First Amendment cases, although Kennedy's lede ("Lying was his habit") is a nice touch. Maybe everyone was exhausted from everything else going on this week.

2) Kennedy applies "exacting scrutiny," but using slightly different language. He speaks of a requirement that the restriction be "actually necessary" to achieve its interest and a requirement of a "direct causal link between the restriction imposed and the injury to be prevented." He pulls that language out of Entertainment Merchants (the violent video games case), although it was used in a slightly different context. It sounds as if this is invigorating the "least restrictive means" prong of the strict scrutiny test, but it is hard to know precisely what this new language means.

3) The entire Court was very accepting of the government having a compelling interest in maintaing the integrity of, and respect for, military awards. I am surprised that we did not see at least a mention of the various flag cases (Johnson or Barnette), where the Court rejected the idea that the government can restrain speech to ensure respect for government and government symbols. From the logic that false speech is not an unprotected category, it should follow that government cannot restrict false speech to serve that interest, just as it cannot restrict non-factual speech or advocacy to serve that interest.

This is especially so because Justice Alito spent some time talking about the harm caused by these false statements to "the very integrity of the military awards" and "the system of military honors." But is that any more subject to harm (justifying restrictions ons peech) than the integrity of the flag?

4) Breyer's concurring opinion is troubling, even more so because Kagan joined it. The latter is surprising because Kagan's scholarship indicated a far more speech-protective position than this opinion showed (although Mary-Rose points out that it is consistent with the argument she made as S.G. in Stevens). But Breyer is harkening back to early Justice Stevens, who lowered the level of scrutiny for low-value speech in two plurality opinions (see Young v. American Mini-Theaters and Pacifica). But Stevens never got a majority for this approach; Justice Powell always resisted the judicial role in judging the "value" of speech. I had thought that a majority of the Court had moved away from the idea that something content-based got anything less than strict scrutiny based on its perceived value. Breyer did not deny that the SVA was content based, but he insisted, after some discussion, that this intermediate scrutiny was appropriate. Breyer is at this point  applying general balancing tests for all cases, looking for, as he says, "proportionality." This opinion reads a lot like his concurring opinion in Bartnicki.

5) I expected the Court to invalidate the law. My only hesitation had been the possibility that a majority might seize on the government's argument that false statements are protected only to the extent necessary to afford "breathing space" to true speech. In some ways, all three opinions adopted this view. The difference is the plurality finds a chill on speech from any government power to dictate truth or falsity, while Justice Breyer and Justice Alito are only concerned with speech about social sciences, arts, history, philosophy, etc.

6) This decision should mean that electoral lies statutes also cannot withstand First Amendment scrutiny. I suppose the distinction would be that this case turned on a harm principle and the absence of any harm caused by lies about military awards, while recognizing that other laws which punish lies (such as perjury and the prohibition on making false statements to the federal government) interfere with government processes, sufficient harm. Is there an argument that elections are government processes?

Posted by Howard Wasserman on June 29, 2012 at 01:53 PM in First Amendment, Howard Wasserman | Permalink


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