Which Lies May be Punished?

August 23, 2010
Guest Post

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.)

The majority, in my view, had the better of the argument because it looked beyond dicta to the facts and holdings of the cases. Past decisions upholding punishment for lies involved harms beyond mere disapproval of lying. These include the financial losses that accompany fraud, the obstruction of justice that flows from perjury or false swearing, or the injury to psyche caused by defamation. Even Oliver Wendell Holmes' famous remark from US v. Schenck that the First Amendment does not protect "falsely shouting fire in a theatre and causing a panic" includes harm in the form of a panicky crowd that can stampede. Falsely shouting fire on a lonely beach is a different matter. On this understanding, the majority correctly concluded that the less-protected categories defined thus far are what they purport to be.

The use of an alias provides a good example. I. Lewis Libby tells people his name is "Scooter," and Marshall Mathers presents himself as "Eminem," although both are demonstrably false statements of fact regarding their names that can be disproved through government birth records. One is free to use an assumed name so long as it is not done as part of a scheme to defraud. The same should apply to a false statement about receiving a medal, which can be disproved through government records in the same way. Indeed, the ease of proving falsity makes it suitable for correction in the marketplace of ideas, as seen at the Medal of Honor Imposters website.

Truth Police

Our free speech alarms should ring especially loudly whenever an utterance is banned purely out of official disapproval. If speech could be banned merely because it were false, Congress could ban assertions in favor of creationism or evolution. Galileo's assertion that the earth revolved around the sun was a factual assertion that was once deemed officially false. The government should not be the truth police in the absence of other harm.

Volokh's amicus brief recognized this peril, and proposed that false statements of fact could not be punished if made when discussing the government, history, or science. But if false statements are presumptively proscribable, it becomes difficult to construct a legal principle to explain the exceptions to the exception. The Alvarez majority approach is conceptually cleaner and provides better guidance in separating proscribable from protected false statements.

Controlling Speakers to Control Listeners' Thoughts

Freedom of speech, like freedom of religion, is also about freedom of thought. When despotic governments have acted as truth police, they punish perceived untruths in large part to ensure conformity of thought in society at large. The Stolen Valor Act shares that vice. The tip-off is in Congress's statement of purpose, which is "to protect the reputation and meaning of military decorations and medals." Congress wants to control what everyone thinks military medals mean.

People should be allowed to decide for themselves what meaning to attach to symbols - especially symbols of government. This is the lesson of Texas v. Johnson and US v. Eichman, which rejected any valid interest in dictating how the flag must be perceived as "a symbol of nationhood and national unity." As we know from West Virginia State Board of Education v. Barnette, "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion."

The dangers of government as truth police outweigh any damage that may come from the imposters who tell obnoxious but not harmful lies about themselves. Faced with these charlatans, we should take a deep breath and remember Justice Jackson's statement from US v. Ballard that the price of free speech "is that we must put up with, and even pay for, a good deal of rubbish."