This week at the Supreme Court: United States v. Alvarez

First, apologies for the lack of posts last week, I was at a seminar on leadership of non-profits for my non-TAL related stuff I do with veterans issues.  (I am on the Board of Trustees for Soldiers' Angels.)   To start the week off right, I woke up extra early and drove to work to get a post up, only to realize when I got there that today is a Holiday.  Either way, going to get this post up now, as tomorrow I am on travel to the Supreme Court to hear the arguments.

Last week the Supreme Court Insider at the National Law Journal, Tom Mauro laid out the arguments to be heard in this case:

In briefs before the Supreme Court in United States v. Alvarez, the named party Xavier Alvarez is variously described as a "phony," a "scoundrel" and a "serial prevaricator." And those descriptions are from the briefs on his side. The Alvarez case, set for argument on Feb. 22, has produced a remarkable aray of 18 briefs on both sides of the issue: whether the Stolen Valor Act, which makes it a crime to falsely claim having won a military honor, violates the First Amendment.

Alvarez, a small-town politician in Pomona, Calif., was prosecuted under the law after claiming in a public speech that he was a retired Marine who had won the Congressional Medal of Honor in 1987. In fact, he had never served in the military or won the medal.

Alvarez's challenge to the law follows in a recent line of classic First Amendment cases in which the Court has ruled that controversial expressions ranging from dog-crush videos to virulent protests at military funerals to violent videogames are nonetheless protected by the First Amendment. Whether the Court will give similar protection to lying about military medals is not certain. "The case presents fundamental questions about how the Constitution applies to intentionally false statements," wrote Jenner & Block partner Paul Smith, who won the violent videogame case, in the latest Communications Lawyer newsletter.

The Court has said from time to time that false statements deserve little or no First Amendment protection, but those supporting Alvarez say the Court has not condoned criminalizing falsity when it causes no injury. In addition to criticizing Alvarez for his false statements, briefs by First Amendment advocates have also piled on in criticizing the Obama Administration's vigorous defense of the law.

The government's brief argues that content-based restrictions on false speech are permitted under the First Amendment so long as enough "breathing space" remains for fully protected speech. Military advocates say the law is needed to protect the value and integrity of the military awards program, which dates back to the days of George Washington – on whose birthday the case will be argued.

The article then goes on to address some of the Amicus Brief, but I have covered the bulk of them before here.  As I said there,

The court could go a number of ways: 

1)    They could decide that easily verifiable lies dealing with an interest like military medals are not to be afforded constitutional protection.

2)    They could decide that some lies are covered, but in this case the Gov’t has a compelling interest in preserving military medals, under the Constitutional authority to raise armies and to set their rules.

3)    They could decide that the law should have an imputed fraud element.  (i.e. You can lie about being an MOH recipient in a bar or something, but if you try to acquire something tangible or intangible than that would be violative.)

4)    Lastly, they could go the way folks seem to think they will and say that the Stolen Valor Amendment has an overbreadth problem, and suggest that Congress rewrite the statute with the fraud element actually in place.  Technically they wouldn’t actually suggest that, but it would be clear.  If this last happens, luckily there is already a bill in the works.

There are however two briefs cited by the National Law Journal that I wanted to address.  

 Amicus brief of American Booksellers Foundation for Free Expression and others...

"The 'breathing room' test the government derives from a distorted reading of [Times v.] Sullivan and other cases is disturbingly vague and sweeping in the authority it would accord Congress, state legislatures and municipalities to regulate false factual statements based on an asserted strong government interest. The government's defense of the Stolen Valor Act would, if accepted, open the door to government enforcement of the 'truth,' a concept smacking of authoritarianism … This Court should not sustain Alvarez's conviction unless it also would be prepared to sustain the conviction of a veteran who falsely told a grandchild of having won the Navy Expert Rifleman Medal with a motive nor more malicious than to interest the child in riflery. The First Amendment allows no such government intrusion on everyday discourse."

Of course, the grandfather wouldn't actually have to be a veteran, in fact, why not just claim to be a Medal of Honor recipient and really get the interest flowing?  The thing about being the "Truth police" is (I believe) the more ridiculous of the arguments.  As I have said, this isn't about an opinion or some material fact that the government has no interest in.  The most obvious thing that keeps the Government from outlawing lies on Facebook about your marital status etc is that the people should vote out anyone that would go that far in office.  This is about a verifiable statement of fact.  One either has the medals, or does not.  And the Government should be interested in this, since it directly impacts something under their purview, the awarding of medals to the military.  The rules for governing the military, and the awarding of medals is right there in the Constitution.  

Article I, Section 8:

The Congress shall have Power:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; 

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 

To provide and maintain a Navy; 

To make Rules for the Government and Regulation of the land and naval Forces; 

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; 

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.... 

Anyway, the other Amicus that is new to us here is this one:

Amicus brief for the Reporters Committee for Freedom of the Press and 23 news media organizations

"The purposes of the Stolen Valor Act are better served by reliance on the marketplace of ideas than by criminalizing pure speech. As Alvarez and others learned to their peril, veterans groups, medal winners, and the press work tirelessly to expose false claims of heroism … Upholding the Stolen Valor Act under the government's 'breathing space' theory would strike at the heart of press freedom by heralding a return to the early First Amendment jurisprudence of this Court's post-World War I Espionage Act cases. Newspaper publishers and others were convicted, and the convictions upheld … for publishing 'false reports' that might have a tendency to impede the war effort."

I'm willing to bet no one has been more busy getting the word out than those of us who are engaged in this sort of stuff.  But the reality is that there will always be guys like Rick Strandlof who make this untenable.  Rick first conned the city of Reno, Nevada, then he moved to Denver and changed his name to Rick Duncan, where he was a USMC vet with purple hearts etc.  When we caught him there, he simply changed his name again to Rick Gold and became an attorney.  Every time someone busts him out, he just re-invents himself.  And outside those of you reading this, what percent of people out there would even know how to go about verifying the claims?  And since it takes months to get the paperwork back, what possibility is there that whatever ancillary scam this guy is running will get caught?  

False reports on individuals are already subject to defamation law, etc.  This isn't some slippery slope down a route where the Government can prosecute willy-nilly.   What this is is an attempt to preserve to those who actually earned the medals the rightful honor they have returned.

Tomorrow I will be looking at an article on the subject that appeared in the Washington Post this weekend by Professor Jonathan Turley, who is easily my least favorite "legal mind."  Wednesday I will have some info on the actual arguments that came up at the hearing, and a look at some of the questions the Justices posed to the parties.