Emotional Distress, Knowing Lies, Xavier Alvarez, Warren Spahn, and the Bronze Star

In today’s United States v. Alvarez argument, the Justices at times asked: When should knowing lies be restrictable on the ground that they cause emotional distress? True statements and statements of opinion are, after all, generally protected even when they cause very serious emotional distress (see, e.g., Snyder v. Phelps). Yet, as some of the Justices pointed out, the rule is often different for knowing falsehoods, including ones that don’t fit within the narrow exceptions for defamation and financial fraud.

A classic example of speech actionable under the intentional infliction of emotional distress tort involves a knowing lie: “As a practical joke, A falsely tells B that her husband has been badly injured in an accident, and is in the hospital with both legs broken. B suffers severe emotional distress. A is subject to liability to B for her emotional distress.” (Restatement (Second) of Torts § 46 ill. 1.) This is of course the same tort involved in Snyder v. Phelps, yet the Justices seemed to agree that Snyder wouldn’t apply to lies; the Court’s earlier emotional distress tort decision in Hustler Magazine, Inc. v. Falwell suggested the same. Perhaps this case can be distinguished on the grounds that the speech here is not on a matter of “public concern” (a distinction that Snyder suggested might be relevant), but I doubt that this is the proper basis: Even if the lie is said to a politician about some politics-related trauma (“your husband the presidential candidate was just shot”), in a context where the speech was aimed to be conveyed to the public (imagine this being asked as a political stunt in a radio or television interview), I think the Justices would rightly conclude that the speech is unprotected. The fact that the speech is a lie seems to make the difference, even when the harm is just emotional distress.

The same applies even to speech that is considerably less distressing, under the rubric of the false light tort (upheld as constitutional, at least when applied to knowing falsehoods, by the Supreme Court in Cantrell v. Forest City Publishing Co.; see also Time, Inc. v. Hill, which had suggested the same thing). Even speech that is not defamatory but is knowingly false and said about a particular person could lead to a lawsuit by that person based on the emotional distress that the speech causes, even when there is no other harm to the plaintiff (such as injury to reputation).

Interestingly, one leading false light case — cited by the Court in Time, Inc. v. Hill — involved, among other things, a knowing lie about a military decoration. Julian Messner, Inc. published a supposed biography of baseball great Warren Spahn, written by one Milton Shapiro; the biography was aimed at children. The biography was largely fictionalized, but, in keeping with its genre and target audience, didn’t say things that made Spahn look bad (and thus wasn’t libelous). Rather, it made him look more heroic than he was, including by falsely claiming that he had earned a Bronze Star:

Two chapters of the book are devoted to Spahn’s experiences in World War II. The book mistakenly states that Warren Spahn had been decorated with the Bronze Star. In truth, Spahn had not been the recipient of this award, customarily bestowed for outstanding valor in war. Yet the whole tenor of the description of Spahn’s war experiences reflects this basic error. Plaintiff thus clearly established that the heroics attributed to him constituted a gross nonfactual and embarrassing distortion as did the description of the circumstances surrounding his being wounded. Sergeant Spahn was not in charge of “supervision of the repairs” (p. 10) of the Bridge at Remagen; Spahn did not go “from man to man, urging them on” (p. 9); Sergeant Spahn did not go “into the town of Remagen to check with his company commander on his orders for the day” (p. 11) and, consequently, the whole description thereof is imaginary; Spahn had not “raced out into the teeth of the enemy barrage” (p. 13); and in addition to other untruthful statements surrounding his being wounded, Spahn was not “rolled * * * onto a stretcher” (p. 14); but remained ambulatory at all times after treatment in the first-aid station.

The New York courts held that such speech was constitutionally unprotected, and therefore could give rise to a tort recovery, simply because of the emotional distress that the falsehoods caused Spahn. To this day, this is a classic and often-cited example of speech actionable under the false light tort. The Court’s decisions in Cantrell v. Forest City Publishing Co. and Time, Inc. v. Hill would allow such speech to give rise to liability — again, even without a showing of injury to reputation, financial fraud, or even the sort of severe emotional distress involved in the “A falsely tells B that her husband has been badly injured in an accident” intentional infliction of emotional distress scenario.

So one question in Alvarez is: Given that knowing lies (including about others’ military medals) may be punished because of the emotional distress they cause to their targets, why can’t knowing lies about one’s own military medals be punished because of the emotional distress they cause to others who learn about the lies (for instance, people who realize they’ve been deceived by the liar, or even people who are just outraged that others are lying about this)? Indeed, one category involves lies about a particular other person that distress that person and the other lies about oneself that distress others, but why should that distinction make a constitutionally significant difference?

I’m inclined to say that there should be no difference, and that Alvarez’s lie about his own Bronze Star should be as constitutionally unprotected as Milton Shapiro’s lie about Warren Spahn’s Bronze Star? If anything, the potential chilling effect on true speech of punishing the lies about oneself (a matter on which one should rarely fear an honest mistake that could be misinterpreted as a deliberate lie) is less than the potential chilling effect on true speech of punishing lies about others. So this is one of the things that leads me to think that the Stolen Valor Act should be upheld (though I should note that the likely result in Alvarez seems far from clear, given the oral argument). But in any case, I thought that the Bronze Star item from the Spahn case was interesting enough to be worth mentioning.

Finally, note that it’s quite unlikely that the Court would distinguish civil liability, as in the false light tort, from criminal liability for First Amendment purposes (at least where knowing lies are involved). As the Court noted in New York Times Co. v. Sullivan,

What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. Alabama, for example, has a criminal libel law which subjects to prosecution “any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude,” and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case—without the need for any proof of actual pecuniary loss—was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is “a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.”

The same would be true of false light, which would suggest that “What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of [false light],” which means that speech that is within the reach of the civil law of false light would also be criminally punishable.