Aaron H. Caplan is an associate professor of law at Loyola Law School - Los Angeles, where he teaches courses in constitutional law. He has also litigated the constitutionality of punishing false statements made during political campaigns.
When can the government punish liars? The question recently arose in back-to-back federal court opinions finding the Stolen Valor Act of 2005 to be unconstitutional. The statute makes it a federal crime for any person to "falsely represent himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal." In July, the District of Colorado found the act unconstitutional in US v. Strandlof, and in August a divided panel of the Ninth Circuit reached the same conclusion in US v. Alvarez.
In striking down the act, neither court announced a "right to lie" as has been bandied about in some press accounts. Alvarez said the opposite: "There is certainly no unbridled constitutional right to lie such that any regulation of lying must be subjected to strict scrutiny." Instead, both decisions recognized that in a society committed to freedom of speech - and, as I argue below, freedom of thought - the government does not have authority to punish lies simply because they are lies. Instead, there is power to regulate certain harmful lies.
False Statements of Fact As A Less-Protected Category
Government has more power to punish speech that falls within the so-called "unprotected" (or, more accurately, "less-protected") categories, such as incitement to imminent violence, true threats to inflict bodily injury, obscenity, fraud, defamation, false advertising, or speech in furtherance of a crime. The statements in Strandlof and Alvarez fell within none of these. One could imagine scenarios where someone might lie about having received a medal as part of a scheme to defraud. In recent years, many prosecutors have used anti-fraud statutes to prosecute in those situations, purposely avoiding reliance on the Stolen Valor Act due to doubts about its constitutionality. In the latest cases the defendants' bogus boasts were not used to cheat anyone, but only to scratch some inner itch.
Are the less-protected categories of fraud, defamation, and false advertising truly separate categories, or are they expressions of a single concept, namely that all false statements of fact are per se less protected? Existing Supreme Court opinions don't answer the question. In a frequently quoted phrase from Gertz v. Robert Welch, Inc., the Supreme Court said, "there is no constitutional value in false statements of fact." Yet the Court has often given constitutional protection to demonstrably false utterances, requiring additional showings before they may be proscribed. In New York Times v. Sullivan, the Court not only recognized that some falsity is "inevitable in free debate," but went further to find affirmative value in it, quoting John Stuart Mill: "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'."
The opinions in Alvarez puzzled over how to harmonize these conflicting statements. The dissent took the Gertz dictum at its word, concluding that all false statements of fact form a single exception to the general rule of free speech. Cases like New York Times v. Sullivan represent exceptions to the exception, whereby a subset of false statements are protected because punishing them would cause an unacceptable chilling effect on truthful speech. In an interesting amicus brief in Strandlof, Eugene Volokh argued that the Stolen Valor Act was unlikely to create such a chilling effect. If that is the right question, this may be the right answer. (Amicus briefs opposing the Act were also filed by the ACLU of Colorado and the Rutherford Institute.)