Lies, Honor, and the Government’s Good Name: Seditious Libel and the Stolen Valor Act
Christina E. Wells
59 UCLA L. Rev. Disc. 136

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Introduction

Seditious libel, which punishes those who lie about or criticize the gov­ern­ment, “is a quintessentially political crime; its purpose is to protect the special veneration . . . due to those who rule.”[1]  As such, it is anathema to democratic government, undermining informed public opinion, chilling public debate on political issues, and eroding the connections between government officials and those whom they serve.  So inimical is the crime of seditious libel to liberty that when the U.S. Supreme Court in New York Times v. Sullivan[2] finally declared it “incon­sistent with the First Amendment,”[3] Harry Kalven called the opi­nion “the best and most important” free speech decision the Supreme Court had ever produced.[4]  Yet Congress has revived something very like that crime with the Stolen Valor Act, which punishes anyone who “falsely represents himself or herself . . . to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”[5]

Admittedly, the connection between lying about receipt of a medal and seditious libel is not immediately obvious.  The first involves the crime of lying about one’s credentials, while the second involves the crime of criticizing the government—often (but not always) accompanied by a falsehood.[6]  Nevertheless, the Stolen Valor Act raises issues that parallel the punishment of seditious libel.  Historically, government officials justified seditious libel prosecutions by claiming that criticism undermined and reduced the public’s respect for the government’s honor and authority, ultimately threatening national security; thus, the gov­ernment could punish criticism no matter how unlikely it was to undermine security.[7]  The government’s justifications for the Stolen Valor Act are distur­bingly similar.  The government seeks to punish all intentional lies about receiving a military honor because they “misappropriate[] the prestige and honor associated with that medal.”[8]  Furthermore, government officials link preser­va­tion of that prestige to national security, arguing that awards are “an integral element of the armed services’ personnel and readiness efforts[.]. . . [F]alse claims to have won a medal dilute the meaning of military awards, [and further] undermin[e] their ability to serve their intended purposes.”[9]  Much like the crime of seditious libel, the Stolen Valor Act punishes lies because they arguably undermine respect for government or government personnel.

In United States v. Alvarez,[10] the Supreme Court will decide whether the Stolen Valor Act violates the First Amendment, an issue on which lower courts have split.  Courts upholding the Act rely on the Supreme Court’s numerous dec­la­ra­tions that intentional “[f]alse statements of fact are particularly valueless.”[11]  They conclude that intentional falsehoods are “low value” speech unless they involve “speech that matters,” such as criticism of public officials.[12]  Courts strik­in­g down the Act reject the notion that intentional falsehoods amount to low-value speech.  Rather, these courts reason that existing categories of low-value speech, such as defamation and fraud, require concrete and identifiable harms—for example, monetary damage or individual reputational damage—in addition to false statements of fact.[13]  Because the Act’s purpose of protecting the honor and dignity of military awards involves neither monetary nor individual reputa­tional harm, these courts conclude that the targeted speech does not fit within existing low-value categories.  They also conclude that the government’s repu­ta­tional interest does not justify punishing speech when less chilling measures can protect the reputation of military awards.[14]

Superficially, Alvarez involves a question of which equally applicable (if contestable) Supreme Court precedents will prevail in this dispute.  In reality, though, our history with seditious libel informs the very precedents on which the courts rely and highlights the strength of the arguments against the Act’s constitutionality.  For example, seditious libel prosecutions involved vague and malleable standards leading to arbitrary determinations of whether speech was dangerous or had a “bad tendency.”[15]  A decision that false statements of fact are unprotected unless they involve “speech that matters” invites officials to make similarly arbitrary and self-serving determinations.  In effect, that standard is no standard at all and cannot aid in identifying a category of low-value speech.  Furthermore, the Court evolved a requirement of tangible, external harm in its low-value speech categories in response to government repression of criticism.  That harm requirement is critical in distinguishing unprotected low-value speech from protected offensive speech.[16]  History thus supports those judges who found that false statements of fact, standing alone, do not constitute a category of low-value speech.

The history of seditious libel also explains lower courts’ skepticism about the interest underlying the Act.  Although government officials posit numerous potential interests for regulating lies about the receipt of military awards, the only truly viable interest is the damage lies cause to the “prestige and honor” of such awards.  But Sullivan flatly rejected the concept of libel against the government and any accompanying government interest in protecting its honor.[17]  Later cases simi­larly rebuffed attempts to punish flag desecration under laws enacted to protect the symbolic value of the American flag.[18]  Prosecutions of government libel or flag desecration amount to imposition of government orthodoxy or com­pelled respect for government ideas.[19]  Absent an indepen­dent, particu­larized harm beyond damage to the dignity and honor of military awards, the Stolen Valor Act engages in the same sort of compelled respect that the Court’s previous decisions have rejected.

Part I of this Essay examines the Stolen Valor Act and its origins and purposes.  It also briefly explains the split among the lower courts regarding First Amendment challenges to the Act.  Part II discusses the historical crime of sedi­tious libel.  Part III examines the Stolen Valor Act prosecutions through the lens of seditious libel and explains why the Act is unconstitutional.

I. The Stolen Valor Act and Its Aftermath

A. The Stolen Valor Act

Congress adopted the Stolen Valor Act in 2006 because previous law did not sufficiently deter the problem of false claims about receipt of military medals.[20]  “[T]he ‘phony war hero phenomenon,’” officials noted, “plagues the American landscape[.]”[21]  As a result, the Stolen Valor Act criminalizes “falsely represent[ing] [oneself] . . . to have been awarded any decoration or medal autho­rized by Congress for the Armed Forces of the United States . . . .”[22]  Punish­men­t includes a fine or up to six months in jail with a penalty enhancement of up to a year in jail if one falsely claims receipt of the Medal of Honor.[23] 

According to Congress, “Fraudulent claims surrounding the receipt of [military medals] . . . damage [their] reputation and meaning . . . .”[24]  One of the Act’s sponsors characterized it as necessary to protect “the honor and integrity of our veterans, to make sure the memory of their heroism is not tarnished.”[25]  Department of Justice (DOJ) attorneys defending the Act in court reiterated these themes, arguing that a “false claim to have been awarded a military medal misap­pro­priates [and diminishes] the prestige and honor associated with that medal.”[26]  In effect, “false representations threaten to make the public skeptical of any claim to have been awarded a medal.”[27]

Furthermore, DOJ attorneys link such prestige and honor to the operation of the armed forces:

Medals acknowledge acts of military heroism and sacrifice, and express the Nation’s gratitude for the patriotism and courage of those who have acted heroically in the face of danger; they inform the public about acts of valor during armed conflicts; and within armed services, they foster morale and core military values.  False claims to have won a medal dilute the meaning of military awards, thereby undermining their ability to serve their intended purposes.[28]

Such awards, the DOJ noted, are “particularly important during wartime” when they can “‘sustain morale and fighting spirit in the face of continuous operations and severe losses.’”[29]

B. The Stolen Valor Act in the Courts

Federal officials have indicted or prosecuted several individuals under the Act.  Xavier Alvarez was convicted after introducing himself as “a retired marine of 25 years” who “was awarded the Congressional Medal of Honor” at a meeting of the water district to which he had recently been elected a director.[30]  Rick Glen Strandlof was indicted for lying about receipt of the Purple Heart and Silver Star while raising money for his charity, the Colorado Veterans Alliance.[31]  Ronnie Robbins was indicted after claiming to have received the Vietnam Service Medal and the Vietnam Campaign Medal during a campaign for a local political office in Virginia.[32]  Although the defendants did not dispute that they lied about receiving military honors, they asserted First Amendment challenges to their indictments.  Lower courts have split over the Act’s constitutionality.

1. Courts Finding the Stolen Valor Act Unconstitutional

The Ninth Circuit in Alvarez and the district court in Strandlof initially noted that the Act involved a content-based regulation of speech,[33] an uncontroversial finding given that it criminalizes only lies about military awards.  Typically, such regulations are subject to strict scrutiny—that is, the government must show that the law is necessary to meet a compelling interest.[34]  There are, however, exceptions to the Supreme Court’s antipathy to content-based reg­ulations if the speech involved falls into one of the Court’s recognized cate­gories of low-value speech.  Such categories include incitement, threats, fighting words, obscenity, defamation, fraud, child pornography, and speech integral to criminal conduct.[35]  As long as a law complies with the Court’s rules for its low-value categories, regulation of content is permissible because it is “no essential part of any exposition of ideas.”[36] 

Both the Alvarez and Strandlof courts rejected the government’s attempt to characterize the Stolen Valor Act as a regulation of low-value speech.[37]  Turning first to two existing low-value categories, defamation and fraud, the courts observed that these categories required specific concrete harms, such as mon­etary or reputational damage, in addition to false statements of fact.[38]  Both courts found that the Act did not regulate speech only within the fraud category because it punished all lies about receipt of awards, not simply lies designed to obtain monetary gain.[39]  The defamation category was similarly inap­plicable because the “right against defamation belongs to natural persons, not to governmen­tal institutions or symbols.”[40] 

Both courts also refused to create a new low-value category for false statements of fact.  Such a move would “turn[] customary First Amendment analysis on its head” by inviting the government “to determine what topics of speech ‘matter’ enough for the citizenry to hear” and “would give it license to interfere significantly with our private and public conversations.”[41]  Referring to our history with seditious libel, Alvarez further opined that many intentional false statements of fact—for example, those constituting satirical speech—were not valueless.[42]  Citing the Supreme Court’s recent decision in United States v. Stevens,[43] both courts refused to exercise “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”[44]

After concluding that the regulated speech was protected by the First Amendment, the courts then turned to whether the Stolen Valor Act survived strict scrutiny, ultimately finding that it did not.  The district court in Strandlof rejected the government’s reputational interest, noting that “the government’s interest in preserving the symbolic meaning of military awards is [not] suffi­ciently compelling to withstand First Amendment scrutiny.”[45]  The Ninth Circuit in Alvarez conceded the legitimacy of Congress’s interest in protecting “the integrity of its system of honoring our military men and women” but found that criminal penalties were not necessary to serve that interest.[46]

2. Courts Finding the Stolen Valor Act Constitutional

The Tenth Circuit in Strandlof, the Robbins district court, and the judges that dissented in the Alvarez proceedings argued that the Act did not violate the First Amendment.[47]  Relying on the Court’s frequent recognition that “false statements of fact are particularly valueless”[48] and that “[c]alculated falsehood falls into that class of utterances which are no essential part of any exposition of ideas,”[49] they concluded that false statements of fact are among the Supreme Court’s recognized categories of low-value speech.[50]  Courts finding the Act unconstitutional had presumed false speech was protected unless it fell into a recognized low-value speech category.  Drawing on different Supreme Court rhe­toric, judges finding the Act constitutional saw the opposite presumption: “[T]he general rule is that false statements of fact are not protected by the First Amendment [unless] . . . protecting a false statement of fact is necessary ‘in order to protect speech that matters.’”[51]  As long as the law leaves adequate “breath­ing space” for speech that matters, it satisfies the First Amendment.[52]

According to these courts, the Stolen Valor Act does not involve “speech that matters” and further leaves adequate “breathing space” for speech that does.  First, it punishes only lies about one’s own credentials and is unlikely to chill the kind of speech on public debate that was at issue in Sullivan, which involved criticism of public officials.  Second, because such lies do not involve political content, they do not promote the search for truth in the marketplace of ideas.  Finally, that lack of political content also means that the government would be unlikely to target particular viewpoints for suppression.[53]  Accordingly, these courts and the dis­senting Alvarez judges found the Act a legitimate regulation of unpro­tected expression.[54]

* * *

It is not immediately obvious which of these courts is right about the Act’s consti­tu­tionality.  The answer apparently turns on whether intentional false statements of fact are unprotected speech, and both sides can marshal precedent to support their reasoning.  If anything, arguments in favor of the Act are stronger than recent, unsuccessful attempts to characterize content-based laws as regu­lations of low-value speech.[55]  Ample rhetoric supports the argument that false statements of fact are unprotected.  Independent observers posit that the Court could uphold the Act.[56]  Respected scholars argue in support of the law.[57]

Nevertheless, our history with seditious libel argues strongly against the Stolen Valor Act’s constitutionality.  The lower court decisions finding the Act uncons­ti­tutional are grounded in doctrines designed to quell seditious libel prosecu­tions (or something very like them).  That history further under­mines the argu­ments raised in favor of the Act, revealing just how insidious those argu­ments are.   

II. Seditious Libel

A. English Roots

The roots of seditious libel lie in the English crime of treason, which punished overt acts “against the person or government of the King,” such as plotting his death, declaring war on him, or aiding his enemies.[58]  Treason law was thus designed to preserve the physical security of the King and the loyalty of his subjects.  Over time, however, officials attempted to extend treason prosecu-tions to “‘any discussion in a sense hostile to the government . . . [on] questions of political importance,’” which effectively broadened the overt act requirement to include dissident expression.[59]  Because such constructive treason prosecutions proved burdensome and less effective at suppressing dissent than officials hoped,[60] seditious libel emerged in the seventeenth and eighteenth centuries as a method of regulating dissent.

Seditious libel prosecutions originally looked much like prosecution for the crime of private libel; they simply involved government officials as the victims.  The law eventually distinguished between the effect of libels on private versus government victims.  Attorney General Edward Coke wrote that, while a pri­vate libel might cause a breach of the peace, libel of a “public person . . . is a greater offence; for it concerns not only the breach of the peace, but also the scandal of
government . . . .”[61]  Such scandal caused disrespect of government officials and was inconsistent with royal infallibility, which held rulers as “wise and good guides of the country” who were to be “approached with proper decorum.”[62]  Prosecu­tion of seditious libel thus protected the honor and status of government officials by “punish[ing] as a crime any speech ‘that may tend to lessen the King in the esteem of his subjects, may weaken his government, or may raise jealousies between him and his people.’”[63]

This concept of seditious libel continued into the next century when prosecu­tions began to target any writing against the government, not simply indi­vid­ual criticisms.  In a libel prosecution involving generalized accusations of gov­ernment corruption, Lord Chief Justice Holt rejected the notion that libel required statements about particular people.[64]  He justified this expansion of the law by noting:

If men should not be called to account for possessing the people with an ill opinion of the Government, no Government can subsist; for it is very necessary for every Government that the people should have a good opi­nion of it . . . . This has been always look’d upon as a crime, and no gov­ernment can be safe unless it be punished.[65]

Although individual reputations were no longer obviously at stake, Holt’s rea­soning similarly sought to protect the honor and status of government by maintaining people’s “good opinion” of it.  Holt also linked the maintenance of good opinion to national security, which became another common justification for punishing seditious libel.[66]  The danger to security was assumed even if the crit­i­cism was true and regardless of whether the speaker lacked malicious intent.  It was enough that true but critical statements had a “bad tendency”—disrespect for government was itself a harm that could grow and eventually destabil­ize government.[67]

B. Seditious Libel in the United States

The United States’s history with seditious libel is more checkered.  The notion of seditious libel, with its underlying desire to preserve honor and status roles, seems utterly foreign to our representative form of government.  It is unsur­pris­ing, then, that a thriving tradition of intellectual dissent existed in the colonies, which argued that government, “as servants of the people, could not be libeled by criticism of their performance, even by false statements.”[68]  Nevertheless, the Sedition Act of 1798, enacted within a decade of the First Amendment, punished “any false, scandalous, and malicious . . . writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame [them]; or to bring them . . . into contempt or disrepute.”[69]  The Act’s Federalist supporters proffered argu­ments nearly identical to those raised in England.  Skeptical of the common man’s ability to govern, Federalists viewed the “power and the danger of public opinion” as a threat to security and to a strong centralized government.[70]  Federalist supporters of the Act further argued that maintaining public esteem of gov­ernment officials was more necessary in a representative government than in a monarchy because misleading citizens who possessed the power to vote could destabilize government even more than in a monarchy.[71]

Federalist officials believed that the Sedition Act avoided the abuses of English law.[72]  The Act provided that truth was a defense, that malicious intent was a required element of the crime, and that juries, rather than judges, were to decide whether the defendant acted with malicious intent.[73]  But these reforms pro­vided no real protection for defendants accused of seditious libel.  Courts required defendants to prove the truth of their statements, which was usually beyond the capacity of the accused.[74]  Furthermore, judges incor­porated the English approach by finding malicious intent from the “bad tendency” of the words themselves.  Defendants were convicted for publishing articles critical of elected officials because the words showed a “tendency . . . to undermine pub­lic confi­dence in the elected officials and . . . render it less likely that they might be re-elected.”[75]  Accordingly, the rationale for punishing sedi­tious libel in the early Republic was identical to that in England—that is, punishment was necessary to maintain the status and honor of lawmakers and the stability of the nation.[76]  Such reasoning turned the Act into a powerful political tool in the hands of Federalist officials who silenced speech critical of the incumbent administration.[77]

Many soon came to understand the Sedition Act as a misguided exercise of power.[78]  Nevertheless, government officials resuscitated the crime of sedi­tious libel with some regularity during national security crises.[79]  Congress thus punished seditious speech under the auspices of the Espionage Act of 1917, which prohibited willfully interfering with the military draft,[80] and the Sedition Act of 1918, which prohibited willfully publishing disloyal, profane, or abusive lan­guage about the United States government, the flag, or the military.[81]  Law enforcement officials arrested and prosecuted thousands of individuals simply for criticizing the war effort, President Wilson, or both.[82]  Courts, applying a com­bi­nation of constructive intent and the bad tendency test, convicted hundreds of them.[83]  Thus, officials successfully convicted speakers for obstructing the draft based on statements such as, “The war itself is wrong.  Its prosecution will be a crime.”[84]  Appellate courts upheld convictions, reasoning that criticism could “undermin[e] the spirit of loyalty” that inspired men to enlist or to register for the draft: “The greatest inspiration for entering into such service is patriotism, the love of country.  To teach that . . . the war against Germany was wrong and its prosecu­tion a crime, is to weaken patriotism and the purpose to enlist . . . .”[85]  As with seditious libel, the courts reasoned that government had the power to punish speech critical of its initiatives because such speech might undermine the love of coun­try necessary to carry them on.

In 1964, New York Times v. Sullivan[86] finally pronounced seditious libel “incon­sistent with the First Amendment.”[87]  In doing so, the Court rejected a com­mon law libel lawsuit filed by a Montgomery, Alabama city commissioner against the New York Times for running a full-page editorial advertisement that criticized the treatment of black students fighting for civil rights and that referred to police intimidation and force.[88]  Although the advertisement did not name him, Sullivan sued for libel because of certain factual inaccuracies in the adver­tisement and because he believed that the negative actions of the police could be attributed to him as the commissioner responsible for the police.[89]  A jury returned a $500,000 verdict for Sullivan, which the local press lauded as a vindi­cation of the South, an area of the country that was “libeled every day.”[90]

The Supreme Court found that the verdict violated the First Amendment.  The Court distinguished earlier decisions that intimated that libel enjoyed no First Amendment protection; the Court noted that those decisions did not involve “expression critical of official conduct of public officials.”[91]  Instead, it turned for support to other precedents that refused to allow punishment of speech that criticized judicial decisions.  If “concern for the dignity and repu­tation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision . . . even though the utterance contains ‘half-truths’ and ‘misin­for­mation,’” the Court noted, “surely the same must be true of other gov­ernment officials.”[92]  The Court thus concluded that the combination of factual error and defamatory content alone was insufficient to “remove the consti­tu­tional shield” from speech about public officials.  This, the Court said, “is the lesson to be drawn from the great controversy over the Sedition Act of 1798.”[93]

III. The Stolen Valor Act and Seditious Libel

The history of seditious libel permeates the Stolen Valor prosecutions and reveals that the arguments in favor of the Act suffer from the same infirmities as those supporting seditious libel prosecutions.

A. Are “False Statements of Fact” Low-Value Speech?

At their core, the Stolen Valor cases involve disagreement over the appro­priate standard for finding false statements of facts unprotected.  The history of seditious libel suggests that the speech-that-matters[94] standard adopted by lower courts is too malleable to identify a category of low-value speech or constrain official discretion in regulating speech.  In fact, the Supreme Court developed its modern low-value speech framework largely in response to problems arising from similarly malleable standards associated with seditious libel prosecutions.

During the seditious libel era, government officials used the bad tendency test to judge whether speech might lead to harm by causing bad opinions of the government or government initiatives.  Such malleable tests gave officials enorm­ous discretion to silence speech arbitrarily by claiming it might harm national security.  A standard that allows officials to punish false statements of fact unless the speech “matters” is similarly subject to abuse.  Such a standard assumes that only government officials are in the best position to make determina­tions regarding the value of speech.  That assumption violates the notion that the First Amendment was “intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands” of the public.[95]

The flexible standards associated with seditious libel prosecutions led the Supreme Court to adopt requirements of concrete harm for its low-value cate­gories.  The Court initially adopted something akin to the bad tendency test when developing its modern free speech jurisprudence.  Thus, in Schenck v. United States,[96] Justice Holmes found speech unprotected when it is made “in such circumstances and [is] of such a nature as to create a clear and present danger that [the speech] will bring about the substantive evils that Congress has a right to prevent.”[97]  Holmes, like earlier jurists, presumed that speakers intended to cause harm from the sheer fact of their speech.[98]  Hence a circular that criti­cized the draft became intentional interference with the draft in violation of the Espionage Act.[99]

Within a year of Schenck, Justice Holmes had second thoughts.  Dissenting in Abrams v. United States,[100] he flatly rejected the Government’s argument “that the First Amendment left the common law as to seditious libel in force.”[101]  Rather, Holmes argued that only an immediate harm justified punishment of speech.[102]  Holmes’s formulation tightened the nexus between speech and harm, protecting criticism of government while also allowing punishment of truly dangerous speech.[103]  In Brandenburg v. Ohio,[104] the Court adopted Holmes’s approach, allowing punishment of “incitement” only if the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[105]   

The Ninth Circuit in Alvarez noted that the line of cases culminating in Brandenburg has laid the foundation for the Supreme Court’s approach to other low-value speech categories.[106]  The Court’s fighting words, threats, fraud, and defamation categories, for example, contain independent harm requirements that substantially curb the government’s ability to punish speech because of its political content.[107]  The exceptions to the independent harm requirement for the unpro­tected categories of child pornography and speech integral to criminal conduct involve speech that includes independently proscribable harm as an intrin­sic part of the speech.[108]  The harm requirement is integral to creating low-value speech cate­go­ries.  It allows the Court to create narrow categories that do not punish speech because of its disfavored content but because that speech in a particular context makes no contribution to the exchange of ideas as evidenced by external indicia of harm.[109]  A standard presuming that false statements of fact are unpro­tected unless they involve “speech that matters” does not fit within this framework.  Unlike existing categories of low-value speech, that standard iden­tifies no concrete harm and allows officials to determine the value of speech on an ad hoc basis.  This is the opposite of a narrowly defined category.

Adding a breathing space requirement does not improve the speech-that-matters approach.  “Breathing space” is a concept.  It is not a standard by which to judge whether or when false statements of fact are unprotected.  The Tenth Circuit in Strandlof did not elaborate on this concept other than to list cases in which the Supreme Court found false statements of fact unprotected.[110]  But all of its examples involve objective, external indicia of harm.[111]  Thus, the Tenth Circuit’s breathing space analysis is either no standard at all or implicitly adopts the traditional low-value speech analysis discussed above.  Yet, it is hard to imagine how the court could have done the latter while upholding the Stolen Valor Act.  Without additional elaboration, the concept is too malleable and amorph­ous to be of any real use.[112]  Ultimately, adoption of the speech-that-matters and breathing space approaches would radically alter the existing First Amendment landscape, notwithstanding the Supreme Court’s use of similar, iso­lated rhetoric.  These approaches conflict with the Court’s carefully crafted unprotected speech categories and inject arbitrariness where the Court has been careful to reject it.  The First Amendment does not allow “the Government to impri­son any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute’s favor.”[113]

B. The Government’s Interests Underlying the Stolen Valor Act

If false statements of fact do not constitute a category of low-value speech, the Stolen Valor Act might nevertheless survive constitutional scrutiny if it applies to speech falling within a different low-value category or if it survives the strict scrutiny associated with content-based regulations.  To make these determi­na­tions, identifying the interests underlying the statute is critical.  Regardless of the approach used, the Court’s free speech methodology demands that the government have valid reasons for its actions.  Impermissible reasons for acting are alone enough to strike down the law.[114]

As the lower courts noted, the government may have a legitimate interest in preventing use of its awards in fraudulent schemes or trademark misappro­priation, but it did not assert those interests.[115]  Rather, the government asserted three related interests: (1) damage to the “dignity and honor” and “reputation and meaning” of military awards, (2) which in turn damages the reputations of mili­tary personnel who have been awarded such medals, and (3) potentially harms military readiness by undermining morale.[116]

 In some circumstances, two of these interests—protection of individual rep­u­tations and military readiness—are generally valid First Amendment inter­ests.  However, the government does not claim direct damage to these interests.  Rather, it claims indirect harm resulting from the aggregate damage caused by lies about having received military awards.  Thus, a showing of “particularized injury from individual misrepresentations” is unnecessary because the “cumulative force of all such misrepresentations” causes the true harm of dilution to the meaning and value of medals.[117]  This aggregate dilution harms the reputations of mil­itary personnel by making people “skeptical of any claim to have been awarded a medal” and by diminishing an award’s “effectiveness in conferring prestige and honor on those who actually have been awarded medals.”[118]  Dilution also undermines military readiness by damaging morale, diminishing prestige, and causing confusion about the awards.[119] 

The Court has categorically rejected the reasoning on which the gov­ernment relies.  The crime of seditious libel asserted a similarly ill-defined chain of harms—that is, criticism of government causes unspecified damage to official reputations, which might undermine government stability by causing disrespect.  As noted above, Brandenburg rejected the loose causal reasoning of seditious libel, and the Court now requires a close nexus between regulated speech and resulting harm.[120]  Sullivan similarly rejected loose causal reasoning.  In addition to rejecting the notion that lies about public officials could be punished to protect their dignity, the Court refused to allow Sullivan to pursue his common law libel claim against the New York Times on the theory that certain generalized criti­cisms about the police could be imputed to him.[121]  Allowing the lawsuit to proceed, the Court reasoned, would “transmut[e] criticism of government, however impersonal it may seem on its face, into personal criticism, and hence poten­tial libel, of the officials of whom the government is composed.”[122]  Sullivan thus imposed a close nexus between speech and harm by requiring that lies be “of and concerning” actual individuals.[123]  Accordingly, the government’s attempt in the Stolen Valor cases to assert indirect and unproven harm is inconsistent with the Court’s modern doctrine.

The government is thus left with only one possible interest—damage to the “rep­utation and meaning” and/or “prestige and honor” of military awards as a result of lying about having received them.  This interest is impermissible, at least for First Amendment purposes.[124]  Sullivan made clear that the government qua gov­ernment could not impose substantial penalties to protect its repu­ta­tional interest, declaring “that prosecutions for libel on government have [no] place in the American system of jurisprudence.”[125]  By requiring that the false statements be made about an actual person, the Supreme Court signaled that it does not coun­ten­ance the generalized protection of “honor or prestige” that was at the core of seditious libel prosecutions.[126]  The flag desecration cases further sup­port this conclusion.

Striking down a state law that prohibited desecrating a flag in an offensive manner, the Court in Texas v. Johnson[127] found that the state’s interest in preserv­ing the flag as a symbol of national unity did not justify the law.[128] Characterizing this interest as a desire to protect the flag from doubt cast on its meaning by offensive treatment, the Court stated:

If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role—as where, for example, a person cere­mo­niously burns a dirty flag—we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a sym­bol . . . only in one direction.  We would be permitting a State to prescribe what shall be orthodox . . . . We never before have held that the Government may ensure that a sym­bol be used to express only one view of that symbol or its referents.[129]

Just as Sullivan rejected the punishment of speech to protect the government’s repu­tation from dishonor, Johnson rejected the punishment of speech to protect the meaning of important symbols.[130]  The reasoning of these decisions suggests that protecting the “meaning” or “prestige” of military awards through criminal penalties is also forbidden.

This holds true even though the Stolen Valor Act arguably punishes only a narrow category of lies, leaving open other avenues of expression, including criticism of government.[131]  Flag desecration laws also left open other oppor­tunities to communicate the same message.  The problem with those laws was not that they singled out specific messages for proscription.  Instead, they singled out specific symbolic messages associated with the flag for protection and prescribed “what shall be orthodox.”  Punishing lies about having received military awards because they sully the awards’ “meaning” and “prestige” similarly carves those awards out for special protection.  This form of compelled respect for the flag or military awards is its own form of content discrimination.[132]  If one law is allowed to compel such respect, other laws can also be allowed to do so.  This is how orthodoxy spreads.  The malleable speech-that-matters and breathing space standards exacerbate the potential spread of orthodoxy.  Those standards are not limited to the Stolen Valor Act; indeed, they would give government officials discretion to determine when any intentional lie should be punished.  Malleable standards coupled with a state interest designed to compel respect for certain gov­ernment symbols could spread endlessly.  Our history with seditious libel certainly suggests a likelihood that seemingly narrow prohibitions can spiral out of control when inappropriate justifications and amorphous standards are used.  Accor­dingly, the Court should be suspicious of the government’s purpose regardless of the Act’s arguably minimal effect on speech.

Of course, the assumption that the Act will not lead to suppression of valuable speech is entirely questionable.  One could imagine a group like the Yes Men—a “dynamic prankster art duo” that engages in political activism by imper­sonating businesses and fooling journalists—making false statements prohibited by the Act.[133]  For example, they might call a press conference posing as veterans and claiming to have won the Purple Heart as a means to expose perceived wrongs committed by the military against other countries or possibly military personnel.[134]  Their lies would violate the Stolen Valor Act, even with the lower courts’ limitation requiring that the speaker have an “intent to deceive.”[135]  Such lies also qualify as satire protected under the First Amendment.[136]  Officials acknowl­edge this protection and claim that the government will not prosecute satir­ical false statements.  But the statute itself makes no such distinction and risks chilling speech.  If anything, the humiliating and barbed nature of satire, com­bined with the interest in protecting the honor of military awards, suggests that officials have stronger incentives to punish satiric lies than they do nonsa­tiric lies.[137]  A law that allows the government to punish lies without any concrete, exter­nal harm simply cannot guarantee that valuable speech will be protected.  And the First Amendment “does not leave us at the mercy of noblesse oblige.[138]

Conclusion

Lying is wrong.  We learn this lesson in childhood.  But the Stolen Valor prosecutions involve a question considerably more complicated than whether one should be allowed to lie about having received a military award.  Aside from the putative damage to the reputation and meaning of such awards, the absence of harm should lead us to a different question: Why should the gov­ernment be allowed to punish such lies?  As with seditious libel, the Stolen Valor Act creates a political crime that does not punish harm but instead tries to enforce respect for the government—in this case, the military and its awards.  There are many reasons why we should respect the valor and bravery that these awards represent.  But the government has no business telling us who or what we must revere on pain of criminal penalties.  A Supreme Court decision allowing the government to be in this business would not only allow it to establish an orthodoxy, but would give it the power to determine the value of speech in a manner utterly inconsistent with the Court’s existing jurisprudence.



[1]. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 Calif. L. Rev. 2353, 2359 (2000) (internal quotation marks omitted).

[2]. 376 U.S. 254 (1964).

[3]. Id. at 276.

[4]. Harry Kalven, Jr., The New York Times Case: A Note on the “Central Meaning” of the First Amendment, 1964 Sup. Ct. Rev. 191, 194.

[5]. Stolen Valor Act of 2005, 18 U.S.C. § 704(b) (2006).

[6]. See, e.g., Judith Schenck Koffler & Bennett L. Gershman, The New Seditious Libel, 69 Cornell L. Rev. 816, 816 (1984); James Morton Smith, The Sedition Law, Free Speech, and the American Political Process, 9 Wm. & Mary Q. 497, 499 n.7 (1952).

[7]. See Ronald J. Krotoszynski, Jr. & Clint A. Carpenter, The Return of Seditious Libel, 55 UCLA L. Rev. 1239, 1247 (2008); Smith, supra note 6, at 499.

[8]. Petition for Writ of Certiorari at 24, United States v. Alvarez, No. 11-210 (U.S. Oct. 17, 2011), 2011 WL 3645396.

[9]. Id. at 26.

[10]. United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010), reh’g denied, 638 F.3d 666 (9th Cir. 2011), cert. granted, 132 S. Ct. 457 (2011).

[11]. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988); see also infra note 46.  Although there is some question as to the requisite scienter, this Essay assumes, as did the courts, that the Act punishes only intentional false statements of fact.  See, e.g., Alvarez, 617 F.3d at 1209.

[12]. United States v. Strandlof, 667 F.3d 1146, 1153 (10th Cir. 2012); Alvarez, 638 F.3d at 681–82 (O’Scannlain, J., dissenting from denial of rehearing en banc); Alvarez, 617 F.3d at 1220–21 (Bybee, J., dissenting); United States v. Robbins, 759 F. Supp. 2d 815, 818 (W.D. Va. 2011).

[13]. Alvarez, 617 F.3d at 1207–09; United States v. Strandlof, 746 F. Supp. 2d 1183, 1187–89 (D. Colo. 2010), rev’d, 667 F.3d 1146 (10th Cir. 2012).

[14]. Alvarez, 617 F.3d at 1210–17; Strandlof, 746 F. Supp. 2d at 1188–90.

[15]. See infra notes 66–67 and accompanying text (discussing the bad tendency test for determining whether speech constitutes incitement). 

[16]. See Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 480 (1996); Christina E. Wells, Regulating Offensiveness: Snyder v. Phelps, Emotion and the First Amendment, 1 Calif. L. Rev. Circuit  71, 79–80 (2010).

[17]. New York Times Co. v. Sullivan, 376 U.S. 254, 291–92 (1964).

[18]. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989).

[19]. United States v. Eichman, 496 U.S. 310 (1990); Johnson, 491 U.S. 397.

[20]. See Petition for Writ of Certiorari, supra note 8, at 6–7.  Prior to the Stolen Valor Act, section 704 only prohibited wearing and selling medals.  18 U.S.C. § 704(a) (2006).

[21]. Press Release, U.S. Dep’t of Justice, Northwest Crackdown on Fake Veterans in “Operation Stolen Valor” (Sept. 21, 2007), http://www.justice.gov/usao/waw/press/2007/sep/operationstolenvalor.html (quoting Douglas Carver, special agent in charge of Veteran’s Affairs Office).  One survey found that 219 residents of a state claimed to have been awarded the Medal of Honor when only four people had actually received it.  Brief for the United States at 44 n.10, United States v. Alvarez, No. 11-210 (U.S. Dec. 1, 2011), 2011 WL 6019906.

[22]. Stolen Valor Act of 2005, 18 U.S.C. § 704(b) (2006). 

[23]. Id. § 704(c).  The statute also provides for penalty enhancements for false representations about other specific medals.  Id. § 704(d).

[24]. Stolen Valor Act of 2005, Pub. L. No. 109-437, § 2, 120 Stat. 3266, 3266 (2006).

[25]. Press Release, Rep. John T. Salazar, Salazar Introduces “Stolen Valor Act” to Penalize Medal Frauds (July 22, 2005), http://www.homeofheroes.com/herobill.

[26]. Petition for Writ of Certiorari, supra note 8, at 24.

[27]. Brief for the United States, supra note 21, at 42.

[28]. Petition for Writ of Certiorari, supra note 8, at 15; see also Brief for the United States, supra note 21, at 37–42; Petition for Writ of Certiorari, supra note 8, at 26.

[29]. Petition for Writ of Certiorari, supra note 8, at 25 (quoting Charles P. McDowell, Military and Naval Decorations of the United States 171 (1984)); see also Brief for the United States, supra note 21, at 38–39.

[30]. United States v. Alvarez, 617 F.3d 1198, 1200 (9th. Cir. 2010), reh’g denied, 638 F.3d 666 (9th Cir. 2011), cert. granted, 132 S. Ct. 457 (2011).  According to the Ninth Circuit, Alvarez apparently made a “hobby” of frequent and grandiose lies, including that he rescued the American ambassador during the Iranian hostage crisis and played hockey for the Detroit Red Wings.  Id. at 1201.

[31]. United States v. Strandlof, 667 F.3d 1146, 1152 (10thCir. 2012).  Strandlof also lied about ever having been in the military and having been wounded in Iraq.  Id.

[32]. United States v. Robbins, 759 F. Supp. 2d 815, 817 (W.D. Va. 2011).  Additional prosecutions and challenges are pending in the federal courts.  See Brief for Respondent in Opposition at 12 n.4, United States v. Alvarez, No. 11-210 (U.S. Dec. 1, 2011), 2011 WL 6019906.

[33]. Alvarez, 617 F.3d. at 1202; United States v. Strandlof, 746 F. Supp. 2d 1183, 1189 (D. Colo. 2010), rev’d, 667 F.3d 1146 (10th Cir. 2012). 

[34]. See, e.g., Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011); R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Boos v. Barry, 485 U.S. 312, 321 (1988).

[35]. See Brown, 131 S. Ct. at 2733–34; United States v. Stevens, 130 S. Ct. 1577, 1584 (2010). 

[36]. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).  The Court’s rules defining its low-value categories and articulating when speech falling within them can be punished differ with each category.  For examples, see infra notes 107–108.

[37]. See Alvarez, 617 F.3d at 1202–03; Strandlof, 746 F. Supp. 2d at 1186.

[38]. Alvarez, 617 F.3d at 1207–09; Strandlof, 746 F. Supp. 2d at 1187–89.  Alvarez further noted that most regulations of lying—for example, perjury, false light invasion of privacy, and fraudulent administrative filings—contained similar harm requirements.  Alvarez, 617 F.3d at 1208 n.10, 1211–12.

[39]. Alvarez, 617 F.3d at 1212; Strandlof, 746 F. Supp. 2d at 1188–89.

[40]. Alvarez, 617 F.3d at 1210 (citing New York Times v. Sullivan, 376 U.S. 254, 291 (1964)); see also Strandlof, 746 F. Supp. 2d at 1188 n.7 (noting that reputational damage to military honors or “group libels” are not cognizable “except in circumstances clearly inapplicable here”).

[41]. Alvarez, 617 F.3d at 1204; Strandlof, 746 F. Supp. 2d at 1186.  Chief Judge Kozinzki described the “ever-truthful utopia” created by the law as “terrifying” because “the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship.”  United States v. Alvarez, 638 F.3d 666, 673 (9th Cir. 2011) (Kozinzki, J., concurring in the denial of rehearing en banc).

[42]. Alvarez, 617 F.3d at 1213; see also Alvarez, 638 F.3d at 672 (Smith, J., concurring in the denial of rehearing en banc) (noting that the “clearest precedent” supporting the dissenters’ argument for broad regulation of false statements of fact “would be the much-maligned Alien and Sedition Act of 1798”).

[43]. 130 S. Ct. 1577 (2010).

[44]. Id. at 1586; see also Alvarez, 617 F. 3d at 1204–05; Strandlof, 746 F. Supp. 2d at 1187.

[45]. Strandlof, 746 F. Supp. 2d at 1190 (citing Texas v. Johnson, 491 U.S. 397, 417 (1989)) (rejecting the proposition that “designated symbols” may be “used to communicate only a limited set of messages”).  The district court also found “unsubstantiated” and “unintentionally insulting” the notion that such awards were necessary to motivate military personnel.  Id. at 1191.

[46]. Alvarez, 617 F.3d at 1216–17.

[47]. United States v. Strandlof, 667 F.3d 1146 (10th Cir. 2012); Alvarez, 638 F.3d at 677 (O’Scannlain, J., joined by Gould, J., Bybee, J., Callahan, J., Bea, J., Ikuta, J., and Smith, J., dissenting from denial of rehearing en banc); Alvarez, 617 F.3d at 1218 (Bybee, J., dissenting); United States v. Robbins, 759 F. Supp. 2d 815 (W.D. Va. 2011).

[48]. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988).

[49]. Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (internal quotation marks omitted); see also BE & K Constr. Co. v. NLRB, 536 U.S. 516, 531 (2002) (“False statements of fact are unprotected for their own sake.”); Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983) (“[F]alse statements are not immunized by the First Amendment right to freedom of speech . . . .”); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (“[T]here is no constitutional value in false statements of fact [because such statements do not] materially advance[] society’s interest in uninhibited, robust, and wide-open debate. . . . [T]he erroneous statement of fact is not worthy of constitutional protection.” (internal quotation marks omitted)).

[50]. Strandlof, 667 F.3d at 1159; Alvarez, 638 F.3d at 678–80 (O’Scannlain, J., dissenting from denial of rehearing en banc); Alvarez, 617 F.3d at 1218–19 (Bybee, J., dissenting); Robbins, 759 F. Supp. 2d at 817–18.

[51]. Alvarez, 617 F.3d at 1220–21 (Bybee, J., dissenting) (quoting Gertz, 418 U.S. at 341); see also Strandlof, 667 F.3d at 1158 (quoting similar rhetoric in BE & K Constr., 536 U.S. at 531); Alvarez, 638 F.3d at 681–82 (O’Scannlain, J., dissenting from denial of rehearing en banc); Robbins, 759 F. Supp. 2d at 818.

[52]. Strandlof, 667 F.3d at 1158, 1160.  The government’s Supreme Court brief also advocates the breathing space theory in substantially similar form.  Brief for the United States, supra note 21, at 20–28.

[53]. Strandlof, 667 F.3d at 1168; Robbins, 759 F. Supp. 2d at 820–21; see also Alvarez, 617 F.3d at 1233, 1240 (Bybee, J., dissenting).

[54]. See, e.g., Robbins, 759 F. Supp. 2d at 820 (“These justifications do not support a conclusion that the Stolen Valor Act criminalizes protected speech.”).

[55]. See, e.g., Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) (violent video games); Snyder v. Phelps, 131 S. Ct. 1207 (2011) (infliction of intentional emotional distress tort involving offensive protests at funerals); United States v. Stevens, 130 S. Ct. 1577, 1586 (2010) (depictions of animal cruelty).

[56]. See, e.g., Tony Mauro, Stolen Valor Case: False Speech May Leave Some Justices Cold, First Amendment Center, Oct. 18, 2011, http://www.firstamendmentcenter.org/stolen-valor-case-false-speech-may-leave-some-justices-cold.

[57]. See, e.g., Brief of Professors Eugene Volokh & James Weinstein as Amici Curiae in Support of Petitioner, United States v. Alvarez, No. 11-210 (U.S. Dec. 6, 2011), 2011 WL 6179424.

[58]. 1Matthew Hale, The History of the Pleas of the Crown *59 (1st Am. ed.1847) (1778).

[59]. William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 Colum. L. Rev. 91, 99–100 (1984) (quoting 2 James F. Stephen, History of the Criminal Law of England 303 (1883)); see also Philip Hamburger, The Development of the Law of Seditious Libel and the Control of the Press, 37 Stan. L. Rev. 661, 717–19 (1985).

[60]. For a discussion of hurdles facing treason prosecutions, see Hamburger, supra note 59, at 720–22; Mayton, supra note 59, at 104–05.

[61]. 3 Sir Edward Coke, The Case de Libellis Famosis, in The Reports of Sir Edward Coke 254 (Joseph Butterworth 1826).

[62]. Smith, supra note 6, at 499.

[63]. Robert Post, The Social Foundations of Reputation Law: Defamation and the Constitution, 74 Calif. L. Rev. 691, 702 (1986) (citations omitted).

[64]. Queen v. Tutchin, (1704) 90 Eng. Rep. 1133 (Q.B.) 1133 (“[E]ndeavouring to possess the people that the Government is maladministered by corrupt persons . . . is certainly a reflection on the Government.”).

[65]. Id. at 1133–34.

[66]. See Koffler & Gershman, supra note 6, at 822–23 (noting that seditious libel prosecutions operated on the theory that “political protest and criticism of officials undermined the basic safety of government [and] . . . threatened the legitimacy of power”); Krotoszynski & Carpenter, supra note 7, at 1247 (“[S]editious libel worked . . . ostensibly to enhance the security of the government and to ensure that elected officers could implement the people’s will.”).

[67]. Smith, supra note 6, at 499 (“The ‘bad tendency’ test . . . presumed that criticism tended to overthrow the state.”)

[68]. David M. Rabban, The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History, 37 Stan. L. Rev. 795, 816 (1985).

[69]. Act of July 14, 1798, ch. 74, 1 Stat. 596.  Congress passed the Act in response to growing hostilities with France, inciting significant controversy about its constitutionality given that the framers did not clarify whether the First Amendment protected speech from seditious libel prosecutions or merely abolished the much-maligned English licensing systems.  Compare Leonard W. Levy, Emergence of a Free Press (1985) (arguing that the First Amendment incorporated the common law of seditious libel), with Zechariah Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 947 (1919) (arguing that the First Amendment was “intended to wipe out the common law of sedition”).

[70]. Geoffrey R. Stone, Perilous Times: Free Speech in Wartime 25, 34 (2004).

[71]. See Richard Buel, Jr., Securing the Revolution: Ideology in American Politics 1789–1815, at 256 (1972) (“To mislead the judgment of the people when they have all the power . . . must produce the greatest possible mischief.” (internal quotation marks omitted)); see also Smith, supra note 6, at 500.

[72]. Smith, supra note 6, at 501–02.

[73]. Krotoszynski & Carpenter, supra note 7, at 1291–92.

[74]. The mixture of fact and opinion in criticism made it difficult to prove truth.  See Stone, supra note 70, at 39; Mayton, supra note 59, at 129.  Requiring defendants to prove the truth of their statements also “reversed the normal criminal law presumption of innocence.”  Smith, supra note 6, at 501.

[75]. Smith, supra note 6, at 502–03.  Juries provided little protection, as judicial constructions regarding truth and intent “left nothing for honest jurors to do but return verdicts of guilty.”  2 Henry Schofield, Freedom of the Press in the United States, in Essays on Constitutional Law and Equity 534 (1921).

[76]. Smith, supra note 6, at 500.

[77]. Stone, supra note 70, at 67 (noting the use of the Act as a political weapon).

[78]. The law expired in 1791, and President Jefferson pardoned those convicted under the Act.  Congress eventually repaid the fines imposed under the Act, while a congressional report declared the Act “null and void.”  Id. at 73.

[79]. For discussions of the government’s pursuit of seditious libel prosecutions during the Civil War, World War II, and the Cold War, see Stone, supra note 70, at 94–126 (Civil War); Michael Kent Curtis, Lincoln, Vallandingham, and Anti-War Speech in the Civil War, 7 Wm. & Mary Bill Rts. J. 105, 119–20 (1998) (Civil War); Stone, supra note 70, at 258–75 (World War II); Koffler & Gershman, supra note 6, at 840, 842 (Cold War); Mayton, supra note 59, at 91 (Cold War).

[80]. Act of June 15, 1917, ch. 30, § 3, 40 Stat. 217, 219 (codified as amended at 18 U.S.C. §§ 792–799).

[81]. Act of May 16, 1918, ch. 75, § 1, 40 Stat. 553.

[82]. Christina E. Wells, Discussing the First Amendment, 101 Mich. L. Rev. 1566, 1581–83 (2003).

[83]. David M. Rabban, Free Speech in Its Forgotten Years 279–98 (1997).

[84]. Shaffer v. United States, 355 F. 886, 886 (9th Cir. 1919).

[85]. Id. at 888.

[86]. 376 U.S. 254 (1964).

[87]. Id. at 276.

[88]. Id. at 256.

[89]. Id. at 257–59.

[90]. Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment 33–34 (1991).

[91]. Sullivan, 376 U.S. at 268 (citing cases).  The Court described as dicta its previous statements that “the Constitution does not protect libelous publications,” and further noted that “libel can claim no talismanic immunity from constitutional limitations.”  Id.

[92]. Id. at 272–73 (citing Pennekamp v. Florida, 328 U.S. 331 (1946); Bridges v. California, 314 U.S. 252 (1941)).

[93]. Id. at 273.

[94]. See supra note 51 and accompanying text.

[95]. Cohen v. California, 403 U.S. 15, 24 (1971); see also Cantwell v. Connecticut, 310 U.S. 296, 308 (1940) (“[A] State may not unduly suppress free communication of views . . . under the guise of conserving desirable conditions.  Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application.”).

[96]. 249 U.S. 47 (1919).

[97]. Id. at 52; see also Debs v. United States, 249 U.S. 211 (1919); Frohwerk v. United States, 249 U.S. 204 (1919).

[98]. See Schenck, 249 U.S. at 51 (noting that the circular at issue “would not have been sent unless it had been intended to have some effect”).

[99]. The defendants circulated a leaflet to conscripted men that criticized the war, opposed the draft, and urged them to assert their rights.  Id.

[100]. 250 U.S. 616 (1919).

[101]. Id. at 630 (Holmes, J., dissenting).

[102]. Id. at 630–31 (“Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the [First Amendment] . . . .”).

[103]. See Post, supra note 1, at 2362.

[104]. 395 U.S. 444 (1969).

[105]. Id. at 447–48.

[106]. United States v. Alvarez, 617 F.3d 1198, 1215 (9th Cir. 2010); see also Brief of Professor Jonathan D. Varat as Amicus Curiae in Support of Respondent at 8–10, United States v. Alvarez, No. 11-210 (U.S. Jan. 19, 2012), 2012 WL 195302 (discussing the evolution of the Court’s increasingly narrow categories of low-value speech).

[107]. See, e.g., Virginia v. Black, 538 U.S. 343, 363 (2003) (noting that “constitutionally proscribable” true threats do not involve hyperbole but rather a speaker who “directs a threat to a person . . . with the intent of placing the victim in fear of bodily harm or death”); Gooding v. Wilson, 405 U.S. 518, 523 (1972) (stating that the government can punish fighting words only if they “have a direct tendency to cause acts of violence by the person to whom, individually” they are addressed); New York Times v. Sullivan, 376 U.S. 254 (1964) (holding that public officials alleging defamation must show that statements made of and concerning them were false, caused actual damage to their reputation, and were made with actual malice).

[108]. In  New York v. Ferber, 458 U.S. 747, 758–59 (1982), the Court observed that child pornography was “intrinsically related” to child abuse and that using children to create such pornography was harmful to them.  Solicitation, the act of seeking to engage another to commit a crime, involves speech integral to a crime that has long been recognized as punishable.  See United States v. Williams, 553 U.S. 285 (2008).

Obscenity does not appear to follow this pattern of requiring a concrete external harm.  See Alvarez, 617 F.3d at 1228–29 (Bybee, J., dissenting).  It is not entirely clear why the Court approaches obscenity in this manner, although a possible answer may be that once speech amounts to obscenity as currently defined, the Court effectively views it as having the quality of a sex act rather than speech.  See, e.g., Frederick Schauer, Speech and “Speech”Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899 (1979).  Importantly, the definition of obscenity, which asks if speech (1) appeals to the prurient interest as a whole, (2) portrays patently offensive sexual conduct as described by state law, and (3) lacks serious literary, artistic, scientific or political value, attempts to prevent officials from prosecuting obscenity because of its expressive content.  Miller v. California, 413 U.S 15, 24 (1973).

[109]. See Wells, supra note 16, at 79; see also Daniel Farber, The Categorical Approach to Protecting Speech in American Constitutional Law, 84 Ind. L.J. 917, 933 (2009) (“[T]he large majority of proscribed speech adds little or nothing to public discourse . . . partly because the [Court’s] ‘narrow tailoring’ requirement . . . [forces] the state to focus on speech that has little function except to threaten the government’s compelling interest.”).

[110]. The Tenth Circuit relied on Supreme Court cases that upheld the regulation of defamation, false light torts, perjury, baseless litigation, and intentional infliction of emotional distress as evidence of the historical grounding for its breathing space framework.  See United States v. Strandlof, 667 F.3d 1146, 1161–62 (10th Cir. 2012).

[111]. As Alvarez noted, the examples involve specific, injurious harms—for example, damage to reputation, severe emotional distress, and obstruction of justice.  See supra note 38; see also Brief of Professor Jonathan D. Varat, supra note 106, at 10 (discussing the narrow nature of Court rulings upholding regulation of false statements of fact).  Similarly, the numerous statutes to which the Tenth Circuit pointed in Strandlof, 667 F.3d at 1165–67, involved a harm that is obvious from the definition of the crime punishing false statements of fact—for example, lying in connection with assignment of a loan, willful use of a false social security number, knowingly making false statements to immigration officials, and knowingly making false statements about arms exports.  See Brief of the First Amendment Lawyers Association as Amicus Curiae in Support of Respondent at 27–28, Alvarez, No. 11-210 (U.S. Jan. 27, 2012), 2012 WL 293711 (elaborating on the harm associated with various statutes).

[112]. The Tenth Circuit apparently recognized that the breathing space framework needed definition when it characterized the Supreme Court’s decisions as requiring “some limiting characteristic that prevents [the law] from suppressing constitutionally valuable opinions and true statements.”  Strandlof, 667 F.3d at 1165.  Yet, the court upheld the Stolen Valor Act because it punished only knowing lies about oneself and thus did not involve likely suppression of viewpoints or valuable political speech.  Id. at *16–17.

[113]. United States v. Stevens, 130 S. Ct. 1577, 1586 (2010).

[114]. See Robert Post, Recuperating First Amendment Doctrine, 47 Stan. L. Rev. 1249, 1255 (1995) (“[O]ur First Amendment jurisprudence is concerned not merely with what is regulated, but also with why the state seeks to impose regulations. . . . [L]aws enacted to serve improper interests are unconstitutional for that reason.”); see also Christina E. Wells, Reinvigorating Autonomy: Freedom and Responsibility in the Supreme Court’s First Amendment Jurisprudence, 32 Harv. C.R.-C.L. L. Rev. 159, 173–75 (1997) (discussing disfavored state interests).

[115]. See supra notes 38–39 and accompanying text (discussing the fraud exception); see also S.F Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (1987) (discussing U.S. interest in trademark protection).

[116]. See supra notes 24–29 and accompanying text.

[117]. Brief for the United States, supra note 21, at 49; see also id. (stating that the “aggregate effect is the harm that Congress sought to remedy”).

[118]. Id. at 42.

[119]. Id.; see also supra note 29 and accompanying text.

[120]. See supra note 105; see also Texas v. Johnson, 491 U.S. 397, 408 (1989) (rejecting the government’s “claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace, and that the expression may be prohibited on this basis”).

[121]. New York Times v. Sullivan, 376 U.S. 254, 257–59 (1964).

[122]. Id. at 291–92; see also Rosenblatt v. Baer, 383 U.S. 75, 83 (1966) (rejecting county officials’ defamation lawsuit against a newspaper because “[a] theory that the column cast indiscriminate suspicion on the members of the group responsible for the conduct of this governmental operation is tantamount to a demand for recovery based on libel of government, and therefore is constitu-tionally insufficient”).

[123]. Sullivan, 376 U.S. at 291–92.

[124]. The two lower courts that struck down the Act disagreed over whether this governmental interest was sufficient.  See supra notes 45–46 and accompanying text.  In a sense, both were right.  The government can have legitimate reasons for acting, although those reasons may not be permissible First Amendment interests.  See John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1505 (1975).  Thus, the government can legitimately want to preserve the “integrity of its system honoring military men and women,” but it cannot preserve the symbolic effect of such awards through criminal penalties.  See United States v. Alvarez, 617 F.3d 1198, 1216–17 (9th Cir. 2010).  Other less draconian means, such as publishing websites containing awardees’ names, better serve the government’s interests without implicating the First Amendment.

[125]. Sullivan, 376 U.S. at 291–92.

[126]. See Post, supra note 63, at 724; see also Landmark Commc’ns v. Virginia, 435 U.S. 829, 841–42 (1978) (rejecting a law punishing breaches of confidential disciplinary proceedings because the First Amendment did not recognize a state’s interest in protecting the “institutional reputation of the courts”); Bridges v. California, 314 U.S. 252, 270–71 (1941) (rejecting the state’s ability to engage in “enforced silence . . . solely in the name of preserving the dignity of the bench”).

[127]. 491 U.S. 397 (1989).

[128]Id.

[129]. Id. at 413, 416–17 (internal quotation marks omitted).  The Court relied heavily on West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”).

[130]. See also United States v. Eichman, 496 U.S. 310 (1990) (striking down a federal flag desecration law); Schacht v. United States, 398 U.S. 58 (1970) (striking down a law allowing the wearing of military uniforms only in theatrical productions that did not discredit the United States).

[131]. See Brief for the United States, supra note 21, at 45–46 (arguing that the Act leaves open other avenues for expression); see supra note 52 and accompanying text (discussing similar lower court reasoning).

[132]. Ely, supra note 124, at 1506–07.

[133]. David Montgomery, Occupy Wall Street Takes Lessons From the Yes Men, Wash. Post, Oct. 20, 2011, http://www.washingtonpost.com/lifestyle/style/the-yes-men-use-humor-to-attack-corporate-greed/2011/09/28/gIQACyJg0L_print.html.  The Yes Men’s motto is: “Sometimes it takes a lie to expose the truth.”  Id.

[134]. The Yes Men have engaged in such tactics with businesses, posing as (1) representatives of the Chamber of Commerce and announcing that it had changed its stance on the validity of climate change, (2) representatives of Dow Chemical and claiming full responsibility for the Union Carbide chemical spill in India, and (3) representatives of Exxon and claiming to have prototype candles made from the body fat of victims of climate change.  Id.  Their point with such deceptions, which they correct soon after the conferences, is to challenge the status quo and “keep[] the ideas alive that things can be different, and that there’s something dramatically wrong with the world.”  Id. (internal quotation marks omitted).

[135]. See, e.g., United States v. Strandlof, 667 F.3d 1146, 1155 (10th Cir. 2012).

[136]. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).  Satire is “particularly well-suited for political critique because it tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to have the high-and-mighty lampooned and spoofed.”  Leslie Kim Treiger, Protecting Satire Against Libel Claims: A New Reading of the First Amendment’s Opinion Privilege, 98 Yale L.J. 1215, 1215 (1989) (internal quotation marks omitted).

[137]. Although officials are unlikely to punish famous personalities such as Steven Colbert and Jon Stewart for their barbed comments, “the most realistic [and] . . . often the sharpest satire” may not enjoy such immunity.  Id.  For example, the Yes Men have been sued for commercial identity theft after holding their press conference posing as the Chamber of Commerce.  Montgomery, supra note 133.  The duo revealed their real identities and political purpose during the conference when confronted by actual Chamber representatives, who burst into the room, created a scene, and “guaranteed widespread, snickering media coverage” about the event. Despite—or perhaps because of—the confrontation, the Chamber proceeded to sue for identity theft.  Id.

[138]. United States v. Stevens, 130 S. Ct. 1577, 1591 (2010).

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