In the fourteen years that I practiced as a media defense lawyer before joining the Berkman Center, there was one sentence from one Supreme Court opinion that I learned to loathe above all others. It appears in Gertz v. Robert Welch, Inc. (1974) and reads as follows: “But there is no constitutional value in false statements of fact.” The court goes on to explain:
Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues [...] They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
The primary reason that I hate this particular sentence is that it is quoted out of context by plaintiffs’ attorneys at one point or another in virtually every defamation action. Although the Court held that falsity itself does not advance society or the debate on public issues, it nevertheless went on — at the bottom of the very same page, mind you — to hold that there is nevertheless significant constitutional value in protecting certain falsehoods to ensure that publication of the truth is not chilled:
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” [...] And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, at 279: “Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.” The First Amendment requires that we protect some falsehood in order to protect speech that matters. [emphasis mine]
As a result, I experience a chill down my own spine whenever I hear of a law that purports to ban “false” speech of this category or that, and the Stolen Valor Act is no exception. But the Stolen Valor Act, which made it a federal misdemeanor to represent oneself falsely as having received a U.S. military decoration or medal, was meant to target knowing falsehoods. (Although the specific section that forbids these false statements does not in fact contain a knowledge requirement, let’s assume for the purposes of discussion only that the number of people who might be innocently mistaken about having received military honors is de minimis. Let’s also assume that the law would not be applied to target actors in dramatic productions, on the theory that the actors are not claiming to have received these honors themselves.) Both Gertz and the earlier landmark decision in New York Times Co. v. Sullivan tell us that even when discussing public officials, knowing or intentional falsehoods are not protected against defamation claims. And we have long prohibited people from falsely claiming to be police or other government officials.
Yet on June 28 — the same day as its health care ruling — the U.S. Supreme Court, in a plurality opinion with a two-justice concurrence, affirmed the U.S. Court of Appeals for the Ninth Circuit in U.S. v. Alvarez, holding that the Stolen Valor Act is unconstitutional. And the reason is largely that notwithstanding that troublesome sentence in Gertz and subsequent cases (see Hustler Magazine, Inc. v. Falwell (1988), “False statements of fact are particularly valueless”), the Court recognized that it isn’t quite true that falsehood is always without merit. Justice Kennedy, in the plurality opinion, states, “The Court has never endorsed the categorical rule the government advances: that false statements receive no First Amendment protection.” Breyer goes further in his concurring opinion:
False factual statements can serve useful human objectives, for example: in social contexts, where they may prevent embarrassment, protect privacy, shield a person from prejudice, provide the sick with comfort, or preserve a child’s innocence; in public contexts, where they may stop a panic or otherwise preserve calm in the face of danger; and even in technical, philosophical, and scientific contexts, where (as Socrates’ methods suggest) examination of a false statement (even if made deliberately to mislead) can promote a form of thought that ultimately helps realize the truth. See, e.g., [...] New York Times Co., supra, at 279, n. 19 (“Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error’” [...]).
And rightly so. In a very fundamental sense, falsehoods and lies are integral to how we think as human beings. We see the world not only as it is, but as it might have been and as it could be. Without that capacity, people could do no more than react to stimuli; they could not compare the world they see to a different concept in their minds and exercise free will to choose what to do next. In that sense, all of human achievement is based upon the ability to believe in things that do not exist.
That’s different than claiming that one’s own imaginings are true, of course, but (as Breyer’s comments indicate) the fact that falsity is integral to our thought is expressed in its role as an important tool in our everyday lives: We lie to each other not only for gain but to show compassion; sometimes we lie to ourselves to make life bearable; we use lies as a mirror for truth. We all have a responsibility not to use falsehoods to harm others or frustrate public discussion, but determining whether falsehood inherently lacks value is a matter that is beyond judicial determination.
For that reason, I believe the Court was on the right track when, instead of leaving false speech outside the First Amendment entirely, it applied First Amendment scrutiny and determined whether there were significant harms being prevented by the Stolen Valor Act. Both the plurality and the concurrence recognized that existing bans on false speech that pass constitutional muster do so because the speech at issue causes concrete harm, whether tortious harm to individuals (e.g., from defamation, fraud, or trademark infringement), or injury to the function of government (e.g., through perjury, false statements to government officials, or false claims to be a government official). And although the plurality and the concurring justices disagreed as to what level of scrutiny to apply (the plurality applying strict scrutiny and the concurrence applying an intermediate “proportionality” approach), both found that the Stolen Valor Act failed the test.
The plurality held that the government established a compelling interest in defending the integrity of military awards, but proved neither that false claims to military honors devalued public perception of such awards, nor that “counterspeech would not suffice” to prevent that harm. As Justice Kennedy writes, “The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right.” He also notes that many of the evils alleged could be prevented if the government were to maintain a public database of verified medal recipients. Justice Breyer similarly found that the Stolen Valor Act balanced speech against a “substantial countervailing objective,” but held that the objective could be achieved through less burdensome ways, such as requiring proof of harm as an element or limiting the statute’s reach to situations in which harm is particularly likely to occur.
I am less convinced than the Justices that there is a compelling interest at stake here; the arguments in support of the law, in the briefing and elsewhere, seem to echo economic concepts of brand tarnishment (in terms of diluting public perception of military honors) or fraud on the market (in terms of positive treatment that an individual does not deserve). It strikes me as dangerous to import trademark and other commercial speech theories into non-commercial contexts as compelling government interests. Not only have we traditionally distinguished between the constitutional value of commercial and non-commercial speech, but bringing these concepts into the non-commercial realm threatens significant harm to concepts of personality and presentation of the self. If the law could get involved every time we overstate our achievements or put a positive spin on unfortunate incidents from our past, there are few of us who would be in a legitimate position to cast the first stone. And while military honors without doubt hold a special place in our society, I am less certain that protecting the “brand” of a particular medal is a compelling interest in the abstract, as opposed to preventing the exploitation of the medal for specific unauthorized purposes.
Falsely claiming military honors is also significantly different from falsely claiming to wield government authority. If you claim to be a police officer, you can compel people to submit to authority you do not have, or induce trust that is unjustified in your ability to act in a dangerous situation. Falsely claiming to have won a medal might also induce trust and respect that is unjustified, but the impact on the public is substantially more vague; people are not bound to subject themselves to a decorated veteran in the way they must subject themselves to the exercise of power by a government official, nor do military honors represent a public notice of the ability to obtain government assistance in the same manner as a police officer’s badge. We might expect more or better of a decorated veteran than other citizens, and might treat them better as a result, but the harm is attenuated at best.
That being said, I believe the result reached by the Court is correct. The recognition that false speech is entitled to some degree of First Amendment protection even apart from Gertz’s concern with providing breathing room for true speech acknowledges an important truth about how we live and communicate. And it puts a big dent in that sentence that I dislike so much.
But as for Xavier Alvarez, the man who sparked this case by claiming to have received the Congressional Medal of Honor and of whom the plurality wrote in the first sentence of the opinion, “Lying was his habit,” this ruling should provide little comfort. “The remedy for speech that is false is speech that is true,” states Justice Kennedy and a century of First Amendment jurisprudence. There will be plenty of speech about Mr. Alvarez after this opinion; while falsehood might have some social value, if you tell enough lies your sins will find you out.
Photo by Zygia used under a Creative Commons license.