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More on the First Amendment and Knowing Falsehood:

Xavier Alvarez, an elected water district board member in Southern California, was caught on tape falsely claiming that he was awarded the Congressional Medal of Honor. He is being prosecuted for violating 18 U.S.C. § 704(b), which says, in relevant part,

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 one year as to the Congressional Medal of Honor or some other medals], or both.

Alvarez, though, is raising a First Amendment defense, arguing that his false statement is constitutionally protected. Part of the argument is that the statute is overbroad because it covers even innocent errors, not just knowing falsehoods; but the government sensibly responds that the statute can and should be read as implicitly referring to knowing falsehoods. (The government also suggests that it may cover negligent falsehoods, but I think that weakens the government's case, since generally negligent falsehoods on matters of public concern are immune from punishment -- though they may sometimes lead to compensatory damages. Here, the allegation is that the statement was knowingly false, and it's reasonable to read this criminal statute as limited to knowing falsehoods, plus perhaps some reckless but not merely negligent falsehoods.)

The tougher constitutional question, it seems to me, is whether the First Amendment exception for knowing falsehoods is really a "libel exception," as it's sometimes described -- justified chiefly by the desire to prevent injury to specific people's reputation -- or a "false statements of fact exception," justified by the low constitutional value of falsehoods whether or not the falsehoods are defamatory. My sense is that the latter reading is more proper, and some lower courts agree; but the Washington Supreme Court recently took the opposite view, and the U.S. Supreme Court has indeed suggested that some knowing falsehoods are protected.

Here's my quick general summary of the law on this:

  1. The Court has expressly upheld statutes banning fraud, including fraudulent solicitation of charitable donations (though nonfraudulent solicitation of charitable donations is generally treated as fully protected speech). Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003).

  2. The Court has expressly upheld the false light tort, which compensates people for the emotional injury of having false or misleading statements said about them that "would be highly offensive to a reasonable person," even when the statements don’t damage the subject’s reputation. Time, Inc. v. Hill (1967).

  3. The Court has suggested, in Brown v. Hartlage, that knowingly or recklessly false statements in election campaigns are generally punishable. The Court struck down the statute involved in that case on the grounds that it didn't have a knowledge/recklessness requirement, but it reasoned that "There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner's election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment."

  4. Lower courts have uncontroversially upheld criminal punishment of perjury and out-of-court lies to government officials (for instance, under 18 U.S.C. § 1001). See, e.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir.1982).

  5. Lower courts have generally upheld trade libel law, which imposes liability for (at least) lies about people's and corporations' products, not just about the people themselves. Cf. Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (assuming, without deciding, that trade libel should be treated like normal libel).

  6. Only in one situation has the Court strongly suggested that even some recklessly or knowingly false statements are constitutionally protected: New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can't punish even deliberate lies about the government (the traditional definition of "seditious libel"), so long as no particular person is mentioned. It's possible that courts will hold that the same applies even to deliberate lies about broad historical or scientific claims, on the theory that disputes about historical and scientific truth should be carried on without fear of criminal (or even civil) liability; but I know of no cases specifically dealing with this.

  7. Finally, the somewhat opaque R.A.V. v. City of St. Paul holds that the government often may not selective punish some false statements but not others; but there are several substantial exceptions to this doctrine — "[w]hen the basis for the content discrimination [within the unprotected category] consists entirely of the very reason the entire class of speech at issue is proscribable," when "the subclass happens to be associated with particular 'secondary effects' of the speech [unconnected to the persuasive or offensive communicative impact of the speech], so that the regulation is ‘justified without reference to the content of the ... speech,'" when "a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech," and when "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

My sense is that the R.A.V. doctrine doesn't apply here, since it's hard to see an attempt at official suppression of ideas here; and even if there is a narrow exception-to-the-false-statements-of-fact-exception for statements about the government or about scientific or historical claims, it shouldn't apply to a specific statement about one's own past. On the other hand, the legal issue is not as clear as one might at first think, given the Washington Supreme Court's decisions, and the lack of clarity to the Court's false statements of fact doctrine.

Related Posts (on one page):

  1. Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:
  2. More on the First Amendment and Knowing Falsehood:
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Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:

The New York Times covers this in an interesting article (which quotes and links to this post of mine on the subject). I'm inclined to agree with Rod Smolla that the law is likely constitutional; and this argument from Ron Collins doesn't seem to me to work:

“If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol [the flag],” asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, “why then can it compel reverence when it comes to lesser forms of symbolic expression?”

The law here doesn't bar speech that lacks proper reverence — it bars false statements of fact (and should reasonably be interpreted as barring only knowingly or recklessly false statements of fact), and the Court has held that false statements of fact generally lacks constitutional value. Nonetheless, as I argued in my earlier post, the caselaw is not entirely clear on this.

UPDATE: Surreal typo in title ("medical of honor" instead of "medal of honor") fixed. D'oh! Must have seemed pretty confusing at first glance.

Related Posts (on one page):

  1. Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:
  2. More on the First Amendment and Knowing Falsehood:
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