• 15 February 2012

Truth, Lies, and Stolen Valor: A Case for Protecting False Statements of Fact Under the First Amendment

Julia Wood

Recent high-profile prosecutions under the Stolen Valor Act of 2005 (the Act) have raised important questions about the First Amendment’s protection of false speech. The Act makes it a crime for an individual to “falsely represent[] 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.” Though the Supreme Court announced in Gertz v. Robert Welch, Inc. that “there is no constitutional value in false statements of fact,” it has never evaluated the constitutionality of a statute such as the Stolen Valor Act, which punishes false speech without regard to context, intent, or harm. At the heart of the disagreement is a question of framing: Does the First Amendment presumptively protect all speech without regard to truth or falsity, with exceptions for certain types of false speech such as defamation, false light, and fraud? Or is false speech presumptively unprotected, subject to spheres of protection for certain classes of speech that must be protected to avoid chilling other worthy speech?

This Note argues that First Amendment protection should extend to speech without regard to truth or falsity, subject to exceptions for the already well-defined classes of false speech—defamation and fraud—that create concrete, individualized harm. Because the Act is a content-based regulation, it should be subject to strict scrutiny. It fails the rigorous requirements of strict scrutiny, as it neither advances a compelling governmental interest nor is narrowly tailored.


I. False Speech and the First Amendment


A.      The Supreme Court’s Approach to Freedom of Expression and False Speech

The text of the First Amendment’s protection of expression is deceptively plain: “Congress shall make no law . . . abridging the freedom of speech . . . .” Though the language appears to provide absolute immunity against government restrictions on all kinds of speech, the Court has long recognized that such protection is not unlimited. Indeed, the Court has created a complex web of categorical exceptions to the general rule that speech is constitutionally protected.


1.   First Amendment Theory and Case Law.

Because of the broad language of the First Amendment, scholars and courts have struggled to develop a coherent theory of First Amendment protection for the freedom of expression. In the absence of clear evidence of the Framers’ intent, scholars and judges have crafted their own theories to guide their inquiries into what types of speech the First Amendment was designed to protect.

The four leading theories are: the marketplace-of-ideas theory, the self-governance theory, the individual-self-fulfillment theory, and the safety-valve theory. The marketplace-of-ideas theory is premised on the belief that freedom of expression is “the best process for advancing knowledge and discovering truth.” Justice Holmes articulated the marketplace-of-ideas theory in his dissent in Abrams v. United States: “[T]he ultimate good desired is better reached by free trade in ideas[,] . . . the best test of truth is the power of the thought to get itself accepted in the competition of the market, and . . . truth is the only ground upon which [men’s] wishes safely can be carried out.” By contrast, the self-governance theory holds that speech should be protected because it allows speakers to engage in decisionmaking “through a process of open discussion which is available to all members of the community.” Relatedly, the individual-self-fulfillment theory grounds freedom of expression in the “widely accepted premise of Western thought that the proper end of man is the realization of his character and potentialities as a human being.” Finally, the safety-valve theory holds that protecting expression is important because repressing speech leads to negative consequences.

Although each of the theories of freedom of expression protects only certain types of speech, the Supreme Court has resisted adopting a conception of speech that conforms to a single theory. Instead, it has declared that “[t]he guarantees for speech and press are not the preserve of political expression or comment upon public affairs, essential as those are to healthy government” and has maintained that the protections of the First Amendment “are not confined to any field of human interest.”

Under this broad conception of protection for speech, content-based restrictions are generally subject to strict scrutiny, which requires the government to show that a restriction is narrowly tailored to further a compelling interest. Content-based restrictions on speech are those that “suppress, disadvantage, or impose differential burdens upon speech because of its content.”

The theories of First Amendment protection—marketplace of ideas, self-governance, individual self-fulfillment, and safety valve—as well as prevailing First Amendment doctrine, are essential to understanding the Court’s approach to false statements of fact.


2.   False Speech Under the First Amendment

The complexity of First Amendment doctrine is heightened in the area of false speech because of a lack of clarity as to whether false speech is presumptively protected. The Supreme Court has not included false speech when articulating categories of proscribable speech. Instead, the Court has singled out a certain kind of false speech—libel—that is unprotected because of its injurious consequences. Other particular kinds of deceptions—including false commercial speech and fraudulent statements—have also been found to be outside the purview of the First Amendment. But the Court has not listed false speech as a category unto itself.

Rather, the Court has typically required more than mere falsity to bring false speech outside the purview of First Amendment protection. Though the Supreme Court has said that false statements of fact are unworthy of constitutional protection, its jurisprudence reveals that, generally, only false statements of fact that are made with a culpable state of mind and that result in individualized harm are unprotected.


B.     Lower Court Decisions Dealing with False Statements of Fact

The Supreme Court has not yet considered a case in which a deceptive statement that does not fall within the traditionally unprotected categories is punished without regard to its context, intent, or harm. Although lower courts often cite the Supreme Court’s statements that there is no constitutional value in false statements of fact, they may be hesitant to find all false statements of fact outside First Amendment protection. Campaign-speech cases in particular indicate that much confusion still exists among lower courts about how to treat false statements that do not rise to the level of defamation, fraud, or false light.


II. Reasons for Protecting False Statements of Fact

The Supreme Court seems to have accepted the proposition that false statements of fact are unworthy of protection for their own sake. This analysis is grounded in the idea that “[n]either the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Though it puts the intentional lie and the careless error on equal footing for their lack of contribution to public discourse, the Court affords the careless error—or at least the error made without “actual malice”—some protection to avoid chilling speech it deems worthy. It has yet to directly address whether the intentional lie should likewise be protected to avoid adverse constitutional consequences.

Assuming that false statements of fact have no inherent value, there are still compelling reasons to protect false statements that are not defamatory or fraudulent. These reasons generally fall into two categories. The first category comprises liberty concerns, which include avoiding setting up the government as an arbiter of truth, promoting privacy and autonomy, and protecting other valuable speech. The second category contains pragmatic concerns, which include avoiding the difficulty of separating truth from fiction and facts from opinions and promoting ease of administration.


A.     Liberty Concerns

The notion of liberty underlies several of the theories of First Amendment protection, including the individual-self-fulfillment theory and the self-governance theory. To have the free exchange of ideas necessary to the self-governance and truth-seeking functions of the First Amendment, the government must allow free debate. The value of protecting false speech to avoid chilling valuable protected speech is well entrenched in First Amendment doctrine. The same liberty concerns that underlie free-speech doctrine—government interference with speech, government intrusion into private lives, individual autonomy, and the chilling of protected speech—are implicated by and weigh in favor of protection for false statements of fact.


B.     Pragmatic Concerns

There are also practical reasons to favor presumptive protection of false speech. Related to the danger inherent in giving the government control over the content of speech is the substantive difficulty in differentiating truth from fiction. If there were a bright line between truth and fiction or fact and opinion, it would be easier to regulate false statements of fact without risking harm to other protected speech. In reality, however, the lines are often blurry.

This difficulty in differentiating truth from fiction is heightened in the context of lies about oneself. Take, for instance, a statute that punishes résumé lies in private contexts. Though it might be fairly easy to determine whether someone worked for a certain company or went to a certain school, it might not be so easy to determine what his job entailed. Statements are open to differing interpretations, and the line between misstatements and lies is often unclear.

Because of the difficulty that inheres in separating truth from fiction, a rule that presumptively protects false statements of fact would be easier for courts to administer. Although efficiency interests must always be balanced against the interest in the fair administration of justice, little harm exists in presumptively protecting false statements of fact, given that lies that create concrete harm are already subject to regulation.


III. Applying the Framework to the Stolen Valor Act

As Parts I and II argue, uncertainty persists as to whether false statements of fact that fall outside the clearly defined categories of unprotected false speech are protected under the First Amendment, but there are compelling reasons why they should be. This Part applies the foregoing discussion to the Stolen Valor Act.


A.     The Stolen Valor Act and Related Litigation

The portion of the Act that prohibits false claims of military decoration 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, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.

At the time the statute was enacted, Congress made findings that fraudulent claims about medals damage the reputation and meaning of the decorations and medals. Congress also found that federal law-enforcement officers have limited abilities to prosecute such fraudulent claims and that legislative action was necessary to protect the reputation and meaning of the medals.

As lower courts considering the Act have noted, the language does not require an element of scienter, referring only to one who “falsely represents himself” as having received medals. Nor does it require any concrete harm, such as that required by defamation statutes. Instead, it criminalizes the mere claim that one has earned a medal. Finally, the statute contains no contextual limit. Presumably the restrictions apply wherever speech may happen—at a public event in front of an audience, in a public space to one person, or even in the privacy of one’s own home.


B.     The Stolen Valor Act Fails Strict Scrutiny

Because the Act criminalizes a particular statement, the Act is a content-based restriction on speech. Although it is unclear whether statements such as those punished by the Stolen Valor Act are protected, the Court has never indicated that false statements are a proscribable category unto themselves, and there are strong liberty-based and pragmatic reasons for protecting such statements. Thus, false statements of fact should be protected, and the Act should be subject to strict scrutiny. To meet this exacting standard, the Act must serve a compelling governmental interest and must be narrowly tailored to further that interest. It fails both prongs of the test.


1.   There Is No Compelling Interest

The Court has previously held that the protection of symbols is not a compelling interest. There is no cause of action for libel on the government, nor is there a cause of action for general public frauds, deceptions, or defamations. Because of these precedents, the government’s interest in protecting the integrity of its military medals fails to rise to the level of a compelling interest. And though lies about military medals may offend or anger veterans and others, the First Amendment prohibits punishing speech merely because it offends.

In addition to protecting the medals themselves, the government asserts that the Act serves the compelling interest of promoting heroism and sacrifice by military personnel. But not only is the claim that “soldiers may well lose incentive to risk their lives to earn such awards” unsubstantiated, it is unintentionally insulting to the military. And if medals are irrelevant to the behavior of soldiers on the battlefield, there can be no compelling interest in promoting heroism through the protection of the medals.

The legislative history of the Act reveals that some legislators were also concerned about fraud perpetrated by people falsely claiming military medals. Although the interest in disallowing the use of medals for fraudulent purposes could be compelling, the statute is simply not written as a fraud statute. Further, the Act does not require proof of the critical elements of perjury or fraudulent administrative findings: “materiality, intent to defraud, and injury.” Ultimately, because the Act does not fit the fraud framework, the prevention of fraud cannot be a compelling interest for it.


2.   The Statute Is Not Narrowly Tailored

Even assuming that the government could advance a compelling interest for the Act, it still fails strict scrutiny. A law is not narrowly tailored when less speech-restrictive means exist to achieve its compelling interest. The Act’s broad language fails to provide any limits that would prevent it from also prohibiting protected speech. It contains no contextual limitation, no requirement of intent, and no requirement of concrete, individualized harm. Even if a requirement of knowledge or intent is read into the statute, the statute still identifies no concrete, individualized harm that the actor must intend.

There are many other ways to protect against concrete harm caused by imposters’ claiming medals. The Act could be redrafted to “target actual impersonation or fraud.” Because the Stolen Valor Act contains no limitations with regard to context, intent, or harm, it risks punishing protected speech and is not sufficiently narrowly tailored to pass constitutional muster.


Conclusion

Although the Court has not squarely addressed the Stolen Valor Act, the Court’s emphasis on scienter and individualized harm in punishing false speech undermines its statement that “there is no constitutional value in false statements of fact.” Such a statement, without more, is an oversimplification that clashes with First Amendment values.

Litigation over the Stolen Valor Act could present an opportunity for the Court to clarify its false-speech jurisprudence. Free-speech jurisprudence would benefit from a determination of whether false speech is a category unworthy of protection and subject to lower scrutiny, or whether speech is presumptively protected without regard to its truth or falsity. Absent clarification, this uncertainty presents a great potential for chilling protected speech, as well as an undesirable encroachment on individual liberty.

Acknowledgments:

Copyright © 2012 Duke Law Journal
Julia Wood is Managing Editor of the Duke Law Journal.

This Legal Workshop Editorial is based on the following article: Julia K. Wood, Truth, Lies, and Stolen Valor: A Case For Protecting False Statements of Fact Under the First Amendment, 61 Duke Law Journal 469-510 (2011).


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