Alvarez, Part II.D: Upholding Various Restrictions on Knowing Falsehoods Under Strict Scrutiny

Another approach would be to conclude that much of the listed knowingly false speech falls outside any First Amendment exception, but that the restrictions discussed in Part I nonetheless pass strict scrutiny, just as some restrictions on true statements or on opinions could in principle pass strict scrutiny. But this would pose three difficulties.

First, it would lead to results that are inconsistent with this Court’s precedents, precedents that treat false statements as less protected than true statements and opinions even when both kinds of statements implicate the same interest.

Consider, for example, statements about a person on a matter of public concern that are highly offensive to a reasonable person. If the statements are knowingly false, they are actionable under the “false light” tort, Restatement (Second) of Torts § 652E, and are not constitutionally protected, Time v. Hill. Yet if the statements are true or consist of opinion that does not imply false factual assertions, they are generally constitutionally protected even if they are not merely highly offensive but “outrageous” and cause “severe emotional distress.” Snyder v. Phelps, 131 S. Ct. 1207 (2011). The existence of both Time v. Hill and Snyder v. Phelps as First Amendment precedents reflects the judgment that knowing falsehoods do not have the same First Amendment value as other speech.

Second, upholding many restrictions on knowing falsehoods under strict scrutiny, coupled with insisting that the same strict scrutiny is applicable both to knowing falsehoods and to other speech, risks diluting the protection offered to that other speech. What this Court said in Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978), as to commercial speech is even more true as to knowingly false speech: “To require a parity of constitutional protection for [false] and [true] speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech.”

Third, today there is only one Supreme Court majority opinion that is still good law that upholds a content-based speech restriction under strict scrutiny: Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010), which involved national security and at the same time repeatedly stressed how narrow the burden of the speech restriction was. See, e.g., id. at 2723, 2726, 2728 (stressing that the statute did not apply to independent advocacy defending or justifying the action of terrorist groups, and was limited to speech that is coordinated with those groups); id. at 2730 (stressing that “we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations” and that “[w]e also do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organization”). The rarity of such decisions helps maintain a high level of speech protection. But if instead of one such decision there end up being half a dozen or a dozen, those precedents will make other restrictions easier to uphold, much as recognizing many additional First Amendment exceptions will make it more likely that other exceptions will also be recognized, see supra Part II.B.