First Amendment

By Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New York (CUNY) School of Law. Professor Robson is also the ACS faculty advisor for the CUNY School of Law Student Chapter.

All of us are not in jail because very few lies are crimes. Falsehoods under oath, or to a government agent or agency, or in a fraudulent scheme, are all criminalized. But lies based on their subject matter are much more rarely the subject of criminal sanctions.

In the 2005 Stolen Valor Act, Congress has criminalized false statements that one has received a military medal such as the Purple Heart. The lie is a crime even if it is a mere boast in a bar or on E-Harmony.  Importantly, a lie about the same subject matter -- for example, the Purple Heart -- is not criminalized if the false statement is that one has not received the award when one has.

The Ninth Circuit, in a divided opinion, held this provision of the Stolen Valor Act unconstitutional as content discrimination under the First Amendment. Just last month and after the United States Supreme Court had taken certiorari, the Tenth Circuit also in a divided opinion, held the provision constitutional.

The Supreme Court will have a choice between two different approaches. On the one hand, falsehoods might be entirely beyond the protection of the First Amendment. Under this so-called categorical approach, while there are no such things as “false ideas,” there are certainly false statements of fact that are not essential to the truth-seeking function of the First Amendment. The government should be able to regulate these false statements, as it regularly does with regard to allowing damages actions for defamation and regulating commercial representations about products.

On the other hand, government regulations making content or viewpoint distinctions -- regulating the speech because of what the speech is “about” or because of the opinion it advocates -- are highly suspect. Courts demand that the government interest be compelling, with a burden on the government to show there are not less restrictive means.

by Nicole Flatow

Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

“No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.   

 "There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

“One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote: