2011-2012 Supreme Court Term: United States v. Alvarez: A Return to Harm-Based Analysis in First Amendment Cases?

In its recent decision in United States v. Alvarez the Supreme Court struck down the Stolen Valor Act, a federal law that made it a crime to lie about having received military honors. There is no majority opinion.


I summarized the facts of this case in a post dated February 25, 2012. A briefer summary follows.

The Stolen Valor Act, 18 U.S.C. Section 704, provides:

Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States. . . shall be fined under this title, imprisoned not more than six months, or both.

The law enhances the penalty where the defendant has lied about receiving the Congressional Medal of Honor, as Xavier Alvarez did in this case. Federal prosecutors charged Alvarez with violating this law. He pled guilty, reserving the right to challenge the constitutionality of the law. The United States Court of Appeals for the 9th Circuit found the law to be unconstitutional and overturned his conviction.


In a divided series of opinions none of which commanded a majority of the justices, the members of the Supreme Court affirmed the decision of the Ninth Circuit and declared the law to be in violation of the First Amendment.


Plurality opinion:

Justice Kennedy wrote for himself and three other justices - Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor.

Kennedy utilizes the newly-popular "historical" approach now favored by the Court. In two recent cases the Supreme Court has disposed of First Amendment challenges to laws by asking whether or not the speakers were engaged in a "historically unprotected category of speech." In United States v. Stevens (2010) the Court found that there was no tradition of suppressing the sale of "depictions of animal cruelty" and it struck down the law criminalizing that behavior. In Brown v. Entertainment Merchants Association (2011) the Court used the same reasoning and came to the same conclusion about the sale of violent video games.

In the following passage from his opinion Justice Kennedy identifies the historically unprotected categories of speech:

[C]ontent-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expression] long familiar to the bar,’” Id., at ___ (slip op., at 5) (quoting Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (KENNEDY, J., concurring in judgment)). Among these categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam); obscenity, see, e.g., Miller v. California, 413 U. S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (providing substantial protection for speech about public figures); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (imposing some limits on liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U. S. 490 (1949); so-called “fighting words,” see Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); child pornography, see New York v. Ferber, 458 U. S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976); true threats, see Watts v. United States, 394 U. S. 705 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 716 (1931), although a restriction under the last category is most difficult to sustain, see New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). These categories have a historical foundation in the Court’s free speech tradition. The vast realm of free speech and thought always protected in our tradition can still thrive, and even be furthered, by adherence to those categories and rules.

In this case Justice Kennedy utilizes the same historical approach and finds that there is no general category of unprotected speech for "false statements" in general. What's different in this case is that Justice Kennedy incorporates a realistic analysis into the historical approach. He reasons that the law has traditionally punished false statements that cause "harm." he devotes the lion's share of his opinion to carefully considering both the value of permitting this type of speech and the harm that would flow from permitting it.

Justice Kennedy acknowledges that many laws punish or criminalize false statements. He distinguishes these laws on the ground that in each and every case the particular type of false statement causes some definite and identifiable harm. Kennedy reasons that these existing laws are justified not simply because people are outraged that someone has lied, but because as in instances of defamation or fraud individuals or governmental processes are affected by the false statement:

     The federal statute prohibiting false statements to Government officials punishes “whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government . . . makes any materially false, fictitious, or fraudulent statement or representation.” §1001. Section 1001’s prohibition on false statements made to Government officials, in communications concerning official matters, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context.
The same point can be made about what the Court has confirmed is the “unquestioned constitutionality of perjury statutes,” both the federal statute, §1623, and its state-law equivalents. United States v. Grayson, 438 U. S. 41, 54 (1978). See also Konigsberg v. State Bar of Cal., 366 U. S. 36, 51, n. 10 (1961). It is not simply because perjured statements are false that they lack First Amendment protection. Perjured testimony “is at war with justice” because it can cause a court to render a “judgment not resting on truth.” In re Michael, 326 U. S. 224, 227 (1945). Perjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system. See United States v. Dunnigan, 507 U. S. 87, 97 (1993) (“To uphold the integrity of our trial system . . . the constitutionality of perjury statutes is unquestioned”). Unlike speech in other contexts, testimony under oath has the formality and gravity necessary to remind the witness that his or her statements will be the basis for official governmental action, action that often affects the rights and liberties of others. Sworn testimony is quite distinct from lies not spoken under oath and simply intended to puff up oneself.     Statutes that prohibit falsely representing that one is speaking on behalf of the Government, or that prohibit impersonating a Government officer, also protect the integrity of Government processes, quite apart from merely restricting false speech.***
     The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 539–540 (1987) (prohibiting a nonprofit corporation from exploiting the “commercial magnetism” of the word “Olympic” when organizing an athletic competition (internal quotation marks omitted)).

The irony of Justice Kennedy's opinion is that while it purports to follow a historical approach in analyzing First Amendment problems, it inevitably reverts to realistic analysis. This case demonstrates that by itself the historical approach is utterly incapable of resolving difficult First Amendment cases. The dissenting justices contend that there is historical justification for criminalizing false statements, and if we were to decide this case on semantics alone we might agree with their analysis. But reality has a way of making itself felt. Policy analysis cannot be denied its place. And Justice Kennedy is forced to consider - is right to consider - the nature and gravity and likelihood of the harm that this particular type of speech causes.

I have no doubt that Justice Kennedy is correct in finding that "strict scrutiny" is the correct standard to apply in this case, as it was in Stevens and Entertainment Merchants Association. The laws that were challenged in those cases and in this one are all "content based" laws that seek to punish speech based upon the ideas that are being expressed. What was lacking in both Stevens and Entertainment Merchants Association was a serious consideration of whether the legislative judgment might be right - that the sale of depictions of animal cruelty or the sale of interactive games of violence to children might actually cause harm. In this case the "harm principle" takes center stage as Justice Kennedy seeks to distinguish the Stolen Valor Act from other laws that punish "false statements."

One of the important aspects of applying "strict scrutiny" is that the burden of proof falls upon the government - and Justice Kennedy holds the government to its burden. Kennedy writes:

The Government points to no evidence to support its claim that the public’s general perception of military awards is diluted by false claims such as those made by Alvarez. Cf. Entertainment Merchants Assn., supra, at ___–___ (slip op., at 12–13) (analyzing and rejecting the findings of research psychologists demonstrating the causal link between violent video games and harmful effects on children). As one of the Government’s amici notes “there is nothing that charlatans such as Xavier Alvarez can do to stain [the Medalwinners’] honor.” Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration.

Kennedy observes that the government was also unable to prove that the Stolen Valor Act was the "least restrictive means" to achieve its purpose of protecting the integrity and value of military honors:

The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation, see, e.g., Bigham, Water District Rep Requests Alvarez Resign in Wake of False Medal Claim,San Bernardino Cty., CA, The Sun (May 21, 2008). There is good reason to believe that a similar fate would befall other false claimants. See Brief for Reporters Committee for Freedom of the Press et al. as Amici Curiae 30–33 (listing numerous examples of public exposure of false claimants). Indeed, the outrage and contempt expressed for respondent’s lies can serve to reawaken and reinforce the public’s respect for the Medal, its recipients, and its high purpose. The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right.

Justice Kennedy reminds us of the lessons that Holmes and Brandeis taught:

The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth. See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.

 In this case Justice Kennedy returns to his characteristically strong, clear style of writing. It's a pity that this was not a majority opinion.

Concurring opinion:

Justice Breyer was joined by Justice Kagan concurring in the judgment in this case. As he so often does, Justice Breyer dispenses with all standard constitutional doctrine and dives directly into the process of weighing the value of speech against the harm it may cause - a process that he calls "intermediate scrutiny" but which is better described simply as balancing. (Before ascending to the High Court Breyer distinguished himself at the Harvard School of Government for his advocacy of risk/benefit analysis in the field of administrative law.) ("Intermediate scrutiny" has heretofore been considered the proper standard for evaluating the constitutionality of content neutral laws - and this law is without a doubt content based.)

The virtue of Justice Breyer's approach is that like Justice Kennedy he, too, seriously considers the costs and benefits of punishing false factual statements. A principal disadvantage of his approach is that it does not accord sufficient deference either to precedent - to the weighing that his colleagues and forebears on the bench have already performed. Nor does his approach give adequate consideration to the judgments of the framers or to the traditions of free speech that American citizens have adhered to over centuries. 


The decision in the health care case was released the same day as Alvarez. These two members of the Court - Breyer and Kagan - were the only justices who joined Chief Justice Roberts in finding that Medicaid expansion is a separate and different program from the existing Medicaid program, and that therefore the federal government may not withhold funding for existing Medicaid as a lever to force the states to join the expanded program. This could signal the formation of an important new alliance on the Court.

Dissenting opinion:

The dissenting opinion of Justice Alito, like the plurality opinion of Justice Kennedy and the concurring opinion of Justice Breyer, focuses upon the question of whether this type of speech causes "harm." In voting to uphold the law Justice Alito concludes that it does. He states:

By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.

Justice Alito describes the "real harm" that is caused by lies about military honors in the following passage:

As Congress recognized, the lies proscribed by the Stolen Valor Act inflict substantial harm. In many instances,the harm is tangible in nature: Individuals often falsely represent themselves as award recipients in order to obtain financial or other material rewards, such as lucrative contracts and government benefits.10 An investigation of false claims in a single region of the United States, for example, revealed that 12 men had defrauded the Department of Veterans Affairs out of more than $1.4 million in veteran’s benefits.11 In other cases, the harm is less tangible, but nonetheless significant. The lies proscribed by the Stolen Valor Act tend to debase the distinctive honor of military awards. See Stolen Valor Act of 2005, §2, 120 Stat. 3266, note following 18 U. S. C. §704 (finding that “[f]raudulent claims surrounding the receipt of [military decorations and medals] damage the reputation and meaning of such decorations and medals”). And legitimate award recipients and their families have expressed the harm they endure when an imposter takes credit for heroic actions that he never performed. One Medal of Honor recipient described the feeling as a “‘slap in the face of veterans who have paid the price and earned their medals.’”

There are two problems with the foregoing argument. First, regarding the instances of fraud referred to  at the beginning of the paragraph, there was no evidence that Xavier Alvarez lied about winning the Medal of Honor in order to obtain something of value, nor does the existing statute impose such a requirement. Nearly everyone involved conceded that if the statute contained such an element that the law would be constitutional - it would simply represent a specific instance of fraud.

Second, the harms that are recited by Justice Alito in the remainder of the paragraph are not simply "less tangible" - they are not at all tangible. The impact of this speech is said to "debase the distinctive honor of military awards" and to constitute a "slap in the face of veterans" and their families. This is moral harm, not tangible harm. It is nothing more and nothing less than an argument for punishing speech we abhor. The "clear and present danger" is not incitement to riot, or conspiracy to commit a criminal act, or a provocation or threat of violence.

Justice Alito compounds this error by drawing analogies between the Stolen Valor Act and laws prohibiting trademark infringement, fraud, perjury, defamation, false statements in labor disputes, false advertising, false-light invasion of privacy, and intentional infliction of emotional distress through false statement.

My reaction is that this recitation weakens rather than strengthens Justice Alito's argument. It is true that in each of those situations false statements were punishable - but unlike those laws the Stolen Valor Act simply punishes false statements in the abstract absent any proof of harm.

Rejecting the idea that falsehoods may enjoy First Amendment protection, the dissent states:

This radical interpretation of the First Amendment is not supported by any precedent of this Court.

You would think that three judges who are voting to make the utterance of falsehoods a criminal act would be more careful in not overstating the case law supporting their position. In New York Times v. Sullivan (1964) the Supreme Court recognized that the First Amendment must enjoy "breathing space" even if that means that falsehoods may go unpunished. In that case the Supreme Court stated:

[E]rroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression  are to have the "breathing space" that they "need . . . to survive.

Under the Constitution some lies may be punished. But lies may not be punished wholesale. All nine justices of the Court adhere to the position that lies may be punished only where they cause harm. The six justices who authored and joined the plurality and concurring opinions ruled that for speech to be punishable the harm that flows from it must be concrete and definite. The dissent would permit speech to be suppressed in cases where it causes "moral harm" - they would criminalize speech simply because it causes outrage. This concept was rejected in the flag-burning and cross-burning cases. The majority of the justices rightfully reject that concept in the context of this case as well.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.