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
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I think a reasonable case can be made that the law is not viewpoint neutral, raising R.A.V. v. St. Paul problems:
http://www.acslaw.org/acsblog/stolen-valor-as-viewpoint-discrimination
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
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
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