Stolen Valor as Viewpoint Discrimination

February 22, 2012
Guest Post

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.

A melding of these two very different approaches occurred in the 1992 case of R.A.V. v. City of St. Paul, involving a “hate speech” ordinance. Justice Scalia, writing for the Court, accepted the interpretation that the ordinance covered only “fighting words” -- a well-established category beyond the reach of the First Amendment -- but held that because the courts had to consider the content of the speech, the ordinance was subject to strict scrutiny. He also found courts not only had to consider content, but had to examine viewpoint. A statement had to not only be “about” race, for example, but it had to demonstrate bias based upon race.

On this view, the Stolen Valor Act is clearly a content discrimination statute that the Court should very carefully scrutinize. The subject of any statement -- specific military awards -- will need to be carefully considered by any jury deliberating whether or not to convict. Was the statement actually “about” one of the military awards covered by the Stolen Valor Act?  False statements that one served in the military or accomplished great acts of heroism are insufficient. There must be a specific mention of  “any decoration or medal authorized by Congress.”

The viewpoint of the statute is less clear, but it is noteworthy that not all lies about receiving military awards are criminalized. For example, if a person falsely denies he received the Purple Heart, this will not constitute a crime. The government has given each side a different rule: Or, in Justice Scalia’s more colorful phrasing from R.A.V., Congress has chosen  “to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules.” The “debate” here is about the worth of military medals, analogous to the “debate” in R.A.V. being about racial inferiority. And as in R.A.V., the imposition of these differing rules results in a criminal sentence.

These difficulties have prompted the Solicitor General to argue for a new legal standard called “breathing room.” This asks the court to uphold a regulation if the government has a “strong” interest and there is adequate “breathing space” for fully protected speech.  Imported and inverted from civil defamation doctrine, the standard is not appropriate for evaluating a law that would allow criminalization rather than preventing civil damages for minor falsehoods.  It opens the door for criminalizing a host of lies. The government could be said to have a “strong” interest in our representations about our weight or our last snack (given the national epidemic of obesity), about our fifth grade report card or SAT scores (given the national concern with education) and our net worth or credit card debt (given the national attention to income inequality).  We would presumably have some “breathing space” around our lies if we could relate them to some “fully protected speech,” but it might make it very difficult to breathe, indeed.  And imagine if our lies were criminalized on only one side of the "debate." Imagine if we were free to lie that we weighed more than we did, but criminalized if we stated we weighed less.  

Surely, the Court should declare this version of the Stolen Valor Act unconstitutional. Congress would have the opportunity to write a constitutional statute. Indeed, it already has tried. The proposed Stolen Valor Act of 2011 is both more narrow and more broad. It criminalizes false representations “with the intent to obtain anything of value” and those representations are not limited to military medals, but to “military service.” But problematically, Congress again has chosen to criminalize only one side: A falsehood denying that one has received the Purple Heart remains outside the criminal law. Nevertheless, federal laws should criminalize fraudsters, not braggarts.

Click here for a transcript of the oral argument in United States v. Alvarez.