Today in the Community we are discussing affirmative action in the context of the petition for certiorari in Fisher v. University of Texas.

Steve Wermiel has a terrific introduction to the case and how it relates to the Court’s affirmative action jurisprudence here.  Affirmative action – and more broadly the use of race in government decision making – is an issue about which many people have strong feelings, personally and morally.  At SCOTUSblog, we’re concerned with how the Supreme Court should and will address the issue under the Fourteenth Amendment.  We hope you will participate.

Here are five comments we liked from yesterday:

Richard A. Epstein

The Stolen Valor Act of 2005 makes it a federal misdemeanor for any person to state falsely that he or she has received any U.S. military decoration of medal. The statute carries with it jail terms of up to six months for most representations and up to a year for false statements that a person has received the Congressional Medal of honor. Under this law, there is no requirement that the misrepresentation has caused injury to any person who has relied upon that statement to his or her detriment. The offense is complete with the misrepresentation itself.

The common view of many First Amendment scholars is that this particular statute should be regarded as unconstitutional. The common view is that this particular speech is somehow regarded as high value so that the federal government can limit that speech only on a showing of a compelling state interest, which cannot be found in this case, given that common law and statutory remedies for fraud are available whenever innocent people rely on this message for their own benefit.

I think that this analysis is wrong. The starting point is that there is in my view never any level of protection that should be given for false speech in and of itself. The notion of freedom of speech is not that all speech is free, but that speech should be free so long as it operates within the traditional libertarian boundaries, that is, so long as that statement is not involved with the use of force or fraud. This speech, by definition does not involve truthful statements that may contribute to the political debate but false statements that have no upside potential whatsoever and much possibility of doing damage. If the statute deters individuals from making false statements, it reduces the prospect that someone will in fact be hurt by the speech. In so doing, it reduces the risk that no private right of action will provide an effective remedy after the fact. If there were some risk that the statute in question swept too broadly, so that it captured some true speech, then overbreadth issues might be a concern. But there are no special gimmicks at work in this case, and this risk is minimal.

The key error to avoid in these cases is to evaluate speech by type, so that high- and low-value speech are put into different categories, whereby low value speech includes fighting words, obscenity, (perhaps) commercial advertisements and the like. That category approach means that defamation can now be regarded as high-value speech, even when it is false, so long as it deals with matters of public interest and concern.

One of the serious dangers of New York Times v. Sullivan, is that its actual malice rule creates an unwarranted immunity for false statements under this logic. Yet what that decision, and the actual malice rule that it embodies miss this point. The threat of defamation for which no remedy is available could easily deter able people from entering into public life, which could therefore diminish the quality of public debate. Start with the view that presumptively holds false speech is not entitled to any protection, and the Stolen Valor Act is constitutional, indeed clearly so.

Garrett Epps

The notion that the First Amendment protects speech if and only if it passes a test of truth finds no support that I am aware of in the doctrine. Properly viewed, the caselaw suggests that all speech is presumptively protected unless 1) it falls into a well-established “historical exception” to “the freedom of speech” or 2) the government can demonstrate that the restriction passes the applicable test (“strict scrutiny” for most content-based restrictions, with other tests for such things as commercial speech, etc.). I’ve never seen any evidence of a “historical exception” for lies generally. Thus, because the SVA is content-based, it would have to pass strict scrutiny, and I frankly don’t see how it can. As Judge Kozinski notes in his hilarious opinion concurring in the denial of en banc review, lies are inextricably intertwined with daily life, and a principle that invites government to monitor ordinary exchanges for truth has no logical stopping point. The governmental interests asserted in this case are derisory. First, the government argues that it has the power to protect the reputation of these medals. Why would this interest be of a higher order than the invalid interest in protecting the flag asserted in the Flag Burning cases? In United States v. Strandlof, the government argued that if non-heroes can go around claiming to have received medals, troops in the field will become discouraged and refuse to risk their lives in combat. As Judge Blackburn responded in his opinion, “To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by considerations of whether a medal may be awarded simply defies my comprehension.”
In truth, the Act does not require that a liar’s lies do any harm. For that reason, it’s clear to me that the only doctrinal basis to consider this act constitutional is the belief that somehow the First Amendment can be rationed out to the rest of us by governmental Pecksniffs who can put our words to the test of truth. The result would seem to me at least to be a libertarian’s idea of dystopia, I think, in which the Truth Police patrol daily discourse ad libitum. Falsity was an element of the Sedition Act of 1798. Mercifully, it drops away from general First Amendment doctrine after that, except in isolated dicta like that in Gertz v. Robert Welch.
One reason this case may never reach the Court is that Congress has the opportunity to get this statute right. Rep. Joseph Heck (R-NV) has introduced H.R. 1775, which amends the current Act to add a requirement that, to violate the Act, military misrepresentations must be made “with intent to obtain anything of value.” This brings us neatly into the area of fraud—which, contrary to an earlier statement in this thread, is not just a lawyer’s term for “lies” but means, to quote Black’s “knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” The House has been relatively torpid this year; the revision is languishing in the Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. This change would seem to be an easy one to pass.


Clay Calvert

As a content-based restriction on speech, the Stolen Valor Act requires a compelling interest – an interest of the highest order – to justify its constitutional validity. The amorphous, intangible injury to the honor and dignity of those who have actually won medals, as well as the harm to the medals themselves as symbols of heroism, simply do not suffice. The high court’s ruling in Texas v. Johnson suggests that while the government certainly does have a legitimate interest in preserving the American flag as a symbol of nationhood and national unity, a legitimate interest is not the same thing as a compelling interest. Ultimately, the Stolen Valor Act amounts to feel-good legislation. If real fraud occurs due to a misrepresentation about having won a medal, then principles of fraud can adequately address that. Absent that, counterspeech – exposing and shaming imposters – is the proper remedy for their offensive expression, and we know that the right to offend is alive and well, as the Court’s ruling in the Westboro Baptist Church case of Snyder v. Phelps proved earlier this year.

Lyrissa Lidsky

Why NOT criminalize lies? The starting point for analysis is not whether the speech criminalized under the Stolen Valor is valueless, but whether the government has adequate justification for criminalizing speech that causes only emotional harm, especially when less restrictive alternatives are readily available. First Amendment jurisprudence has long held that the government must remain neutral in the marketplace of ideas, allowing citizens to engage in the “free trade in ideas” to discover where the Truth lies. Government regulation of discourse should be a last, rather than first, resort. Although speakers have relatively small autonomy interests in propagating falsehoods, our constitutional faith in democratic self-governance and collective self-determination suggests that citizens, rather than the government, should ordinarily be the arbiters of truth and falsity in public discourse. As the Supreme Court stated in Dennis v. United States, “the basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda will answer propaganda, [and] free debate of ideas will result in the wisest governmental policies.” From this perspective, even a speaker’s false statement about his military honors has value because it gives his fellow citizens the opportunity (which they are likely to seize) for vigorous rebuttal and correction, replacing his “evil counsels” with good one. This outcome, of course, depends on an engaged citizenry willing to charge into the fray and battle the lies spread by those claiming false military honors, which does not seem so far-fetched in this context, especially if the government is willing to provide an easy system for citizens to verify who receives military honors. Even if our constitutional faith that engaged citizens will combat falsehoods is misplaced, distrust of government may be a strong enough basis to declare unconstitutional any government attempt to punish relatively harmless falsehoods. Past governmental attempts to prescribe orthodoxy in public debate have resulted in enshrinement of error (think Galileo), suppression of political opponents (think the Alien and Sedition Act of 1798) or radical dissidents (think the Espionage Act of 1917); these experiences support the wisdom of maintaining a prophylactic prohibition in First Amendment jurisprudence against government attempts to police relatively harmless lies.

Rory Little

I would like to raise the question why there is not an Equal Protection claim here. I understand that “rational basis” is often no limit at all, although one can argue that the right to personal bodily privacy is a fundamental right requiring stricter scrutiny. But putting aside the “test,” the case to me presents an actually powerful question. Not everyone is strip searched upon entry to a jail. Most particularly not staff, that is, guards. Yet empirically it is indisputable, is it not, that guards are as large or larger a source of problem materials (weapons, cellphones and drugs) than arrestees. Particular arrestees for “minor” offenses. Honestly, given the empirical reality, where is the rationality of strip searching one class and not the other?
And it seems to me that if guards were subject to the same strip search policy — not to mention wardens — then a more discriminating system would be put in place.

Posted in Community

Recommended Citation: Tom Goldstein, Today in the Community: October 14, 2011, SCOTUSblog (Oct. 14, 2011, 9:59 AM),