Although most people are focusing on Chief Justice Roberts’ vote to uphold the healthcare law, it turns out the Chief also voted with the “liberals” today to strike down the Stolen Valor Act as violating the First Amendment. This is an important First Amendment opinion with lots of points for discussion.
The Stolen Valor Act makes it a misdemeanor to falsely represent oneself as a recipient of military honors. The final vote from the Court was 6-3, but the six votes were spread between Justice Kennedy’s plurality opinion (joined by the Chief and Justices Ginsburg and Sotomayor) and Justice Breyer’s concurring opinion joined somewhat surprisingly by Justice Kagan (more on that in a minute). The dissent was written by Justice Alito, joined by Justices Scalia and Thomas.
I will just note a few things that captured my attention after a first read:
Reliance on the marketplace of ideas: Although Justice Kennedy spends a lot of time in his plurality opinion discussing how the current statute does not require prosecutors to demonstrate any material harm resulting from the false speech, he also notably places a lot of confidence in the marketplace of ideas to discredit false statements. In particular, he relies heavily on the ability of counterspeech to flush out the truth. In this case, Kennedy writes, the Government could easily post online a database listing those who have received military honors. Justice Breyer’s concurring opinion also discussed the importance of the marketplace of ideas and encouraged the Government to embrace “information-disseminating devices” to correct the truth.
It is this same confidence in the marketplace of ideas that has played a vitally important role in the Court’s free speech jurisprudence from New York Times v. Sullivan to Citizens United. It is also the same marketplace of ideas theory of the First Amendment that has been heavily criticized for decades. In a recent book chapter about Sullivan I wrote for Foundation Press’s First Amendment Stories, I wonder whether the assumptions that case made about the marketplace of ideas are more or less true in the digital age. In today’s Alvarez opinion, a majority of the Justices indicate that they believe the Internet can make counterspeech more effective and easier, not harder. I wonder how far the Justices would be willing to take their trust in the Internet as an effective tool for counterspeech and what it means for the future of defamation law.
The dissent raises some good questions about whether it would even be possible to create a complete and accurate list of those who have received military honors. The dissent also might have questioned the assumption that people would actually refer to the database, or even trust its reliability; furthermore, they might have mentioned recent studies indicating that even exposure to true facts appears to do little to correct false beliefs and perversely tends to make people even more confident in their beliefs (known as the “backfire” effect). One need only remember that some people still believe that President Obama was not born in this country to question the ability of the Government to counteract even easily verifiable false speech.
Public v. Private Concern: Curiously, the dissenters indicate that they are still big fans of the marketplace of ideas, but only with respect to statements on matters of public concern. (They really have to say this, don’t they, to justify decisions like Citizens United and R.A.V.) Justice Alito is worried that “[l]aws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern” would be particularly problematic. For a long time the question of whether speech is a matter of public or private concern has been important in defamation and privacy law as well as cases involving government employees. Last year’s decision in Snyder v. Phelps also relied significantly on this distinction.
It is not all that obvious to me that the speech at issue in Alvarez was a matter of private, rather than public, concern, especially given that the defendant made the statements when he was publicly introducing himself as a newly elected board member of the Three Valley Water District Board. I am sympathetic to efforts to distinguish between speech of high and low value, but embracing a public v. private concern dichotomy is likely to cause more problems that it will solve. That said, I predict we will see that the distinction between public and private concern, or high- and low-value speech, will play an increasingly important role in the Court’s free speech opinions in the future.
Justice Kagan: Even more interesting that the Chief’s decision to join the plurality opinion is Justice Kagan’s decision to join Justice Breyer’s concurrence. In this opinion, Justice Breyer claims that intermediate scrutiny and not strict scrutiny is the proper framework for analyzing the constitutionality of the statute. He embraces this lower level of scrutiny because he believes that false statements about easily verifiable facts that do not involve “philosophy, religion, history, the social sciences, the arts, and the like” are less likely than true facts to make a valuable contribution to the marketplace of ideas. (Combined with the dissenters, that’s five votes for basing First Amendment protection on the perceived value of the speech.) Justice Breyer notes that the approach he advocates is similar to a proportionality test examining the “fit” between the statutory ends and means.
Many of us wondered whether Kagan actually believed the argument she supported as Solicitor General in U.S. v. Stevens (the animal cruelty case), and now I think we have confirmation that she did. I am still wondering what her vote here means for her views on the constitutionality of the FCC’s regulations on indecency in broadcast media, an issue the Court ducked last week. Like the dissenters, Justice Breyer and Justice Kagan seem to advocate different standards for high- and low-value speech. Just as we can never count on Justice Breyer as a reliable vote to protect free speech rights, Justice Kagan’s vote in Alvarez indicates that we are going to have to hesitate before we make any assumptions about how she will vote in First Amendment cases.
Breyer’s concurrence is going to control on the issue of when the Government can restrict false speech, and I have to agree with the dissent’s complaint that it gives unclear guidance about how Congress could rewrite the statute to pass constitutional scrutiny. Both the plurality and concurrence suggest that Congress could avoid a First Amendment problem by amending the statute to require some sort of material harm resulting from the false representation. That seems easily enough done. But Justice Breyer also mentions that Congress could instead narrow the scope of the law so that it applies only to some military awards. This kind of sounds like a suggestion that Congress limit the law to the worst of the worse, an approach a majority of the Court liked in Virginia v. Black (the cross-burning case). But Justice Breyer also expresses concern about free-roaming prosecutorial discretion and his belief that even intentional lies can serve many valuable social purposes. I came away from reading Breyer’s opinion with the impression that he is still unsure what he thinks about laws that criminalize false speech.
Constitutional interpretation: One of the plurality’s concerns was that if this law survived constitutional scrutiny, there would be no logical stopping point for what lies the Government could criminally punish. The dissenters rejected this argument out of hand, stating that “[t]he safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.” Interesting statement coming on the same day these three dissenting Justices also voted to strike down the healthcare mandate. As Rebecca Tushnet said on her blog, “Eat your broccoli!”
Justice Alito: One thing that wasn’t so surprising about this decision was that Justice Alito wrote the dissenting opinion. You might all remember that he has been writing lots of dissents in First Amendment cases lately, including Snyder v. Phelps (Westboro Baptist church funeral protests), Brown v. Entertainment Merchants Association (violent video games) and U.S. v. Stevens (animal cruelty). At least this time he wasn’t a lonely dissenter; Justices Thomas (who also tends to march to his own drummer on First Amendment issues) and Scalia joined his opinion.