Categories, tiers of review, and the roiling sea of free speech doctrine and principle: a methodological critique of United States v. Alvarez.

• Author: Smolla, Rodney A.

1. INTRODUCTION

   In United States v. Alvarez, (1) the Supreme Court struck down the Stolen Valor Act of 2005, (2) in a splintered decision with no five-Justice majority. (3) The failure of five Justices to agree on a single rationale, rather than the merits of the case itself, is the principal focus of this article.

   The modest hypothesis of this article is that the Supreme Court has lacked doctrinal discipline in adhering to any consistent and clear set of doctrinal principles when analyzing content-based regulation of speech. This lack of disciplined consistency, highly visible in Alvarez, diminishes stability and predictability in First Amendment analysis. Such instability poorly serves legislative bodies, by diminishing the quality of constructive guidance as to what forms of speech regulation are or are not constitutional. The instability also handicaps lower courts tasked with judicial review of speech regulation.

   Setting the formulaic world of legal doctrine aside, Alvarez offers a good rough and ready guide to three very different judicial sensibilities regarding the preferred position of freedom of speech in the constitutional hierarchy. Visible in the spread of the three opinions in Alvarez are (1) the view, represented by Justice Kennedy's plurality opinion, that freedom of speech occupies an exalted position, rarely trumped by other societal values, (4) (2) the view, represented by Justice Breyer's concurrence, that freedom of speech deserves some elevated stature in the constitutional scheme, but not a stature so elevated that it cannot be overtaken by well-crafted laws vindicating other significant society values, (5) and (3) the view, represented by Justice Alito's dissent, that speech may be divided into that speech which serves some plausible positive purpose, which is deserving of constitutional protection, and that speech which advances no legitimate end worth crediting, yet is highly offensive to good order and morality, which is not deserving of any protection. (6)

2. THE GHOST OF CHAPLINSKY V. NEW HAMPSHIRE

   First Amendment analysis has long been plagued by the ghost of Chaplinsky v. New Hampshire, (7) in which the Supreme Court suggested that the best way to handle judicial review of laws regulating speech was simply to list certain classes of speech as outside of the First Amendment's coverage. (8) In one of the most famous passages in the history of free speech jurisprudence, the Court in Chaplinsky confidently declared:

   There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. (9) This passage has haunted free speech law for sixty years. The struggle of the Justices in Alvarez to unify behind any one coherent test for measuring the validity or invalidity of the Stolen Valor Act is the most recent example. (10)

   Purely as a description of contemporary First Amendment case outcomes, the Chaplinsky standard is all but worthless. Chaplinsky is both an overstatement and an understatement of the state of play.

   Chaplinsky is an overstatement in that many of the classes of speech listed by the Court as not "rais[ing] any Constitutional problem" have come to be understood as raising big constitutional problems. (11) Indeed, elaborate bodies of law have evolved to resolve those problems, providing substantial constitutional protection for speech that is lewd, obscene, profane, libelous, and insulting. (12)

   Take--as an especially graphic example--the legal fate of the "F Word," the mother of all words commonly labeled lewd or profane, in the years since Chaplinsky. In Cohen v. California, (13) the Court held the phrase "Fuck the Draft," worn on a jacket in a public place, was protected by the First Amendment. (14) And most recently, in FCC v. Fox Television Stations, Inc., (15) the Court overturned an attempt by the Federal Communications Commission to penalize broadcasters for broadcasting the "F Word" as an impermissible "fleeting expletive[]." (16) In the 2002 Billboard Music Awards, broadcast by Fox, "the singer Cher exclaimed during an unscripted acceptance speech: 'I've also had my critics for the last 40 years saying that I was on my way out every year. Right. So f[uck] 'em.'" (17) In the Billboard Music Awards in 2003, Nicole Richie adlibbed while presenting an award: "Have you ever tried to get cow s[hit] out of a Prada purse? It's not so f[uck]ing simple." (18)

   Congress long ago banned the broadcast of "any obscene, indecent, or profane language." (19) The Supreme Court sustained the power of the FCC to enforce this provision in its famous decision in FCC v. Pacifica Foundation, (20) in which the Court sustained the Commission's determination that George Carlin's "Filthy Words" monologue was indecent. (21) The Pacifica case, however, left open the question of whether fleeting episodes of indecency or vulgarity could be punished, consistent with the First Amendment. (22) As the Fox litigation reached the Supreme Court, it was thought that the Court might retreat from Pacifica, and hold that changes in technology and culture, and perhaps even the evolution of First Amendment doctrine, had formed enough of a perfect storm to undermine Pacifica. (23) The Court in Fox ducked these large issues, leaving them for another day, instead deciding on narrow grounds that the actions of the FCC were unconstitutional because they failed provide fair notice of the conduct prohibited. (24)

   The fate of the "F Word," now constitutionally protected in many circumstances notwithstanding Chaplinsky, is one of many examples of Chaplinsky as an overstatement of current outcomes in free speech cases. The rich seam of First Amendment law emanating from New York Times Company v. Sullivan, (25) articulating the complex constitutional standards that now apply to the law of defamation, is yet another highly visible refutation of the Chaplinsky formulation as an accurate doctrinal descriptor. (26)

   If Chaplinsky is an overstatement of categories of speech that the First Amendment does not protect, it is also an understatement, failing to account for the many cases of the last sixty years in which speech that is not within any of the delineated Chaplinsky categories has nonetheless been held outside the protection of the First Amendment in certain circumstances. (27) Any number of examples might be picked, but an especially telling line of cases involve student speech, in which the Supreme Court has sustained regulation of speech by students in three major cases in which the speech itself was pallid in its offensiveness, yet still outside the protection of the Constitution when expressed in connection with school activities. (28) The Court thus upheld the discipline of a student for a sexually suggestive, but not at all explicit, speech given while running for student office, (29) it upheld regulation of a student journalist for a student newspaper expose on teenage pregnancy, (30) and most famously of all, it sustained disciplinary action against a student for unfurling a banner proclaiming "BONG HiTS 4 JESUS." (31)

   I believe coherent First Amendment doctrines can be brought to bear to inform principled analysis of all the myriad conflicts that arise in the ongoing evolution of free speech law in America. The categorical approach of Chaplinsky, however, will not cut it. This doesn't mean that under alternative approaches there won't often be extremely close and difficult cases, or that predicting how the Supreme Court will eventually rule in those close and difficult cases will ever be an exact science. It does mean, however, that the rules of the game can be more precisely defined, and the principles that animate those rules more thoughtfully explained. In providing guidance to policymakers and reviewing courts, this would be an improvement.

3. ALVAREZ AND THE STOLEN VALOR ACT

   Alvarez is the latest example of why the categorical approach of Chaplinsky works so poorly. Alvarez is, in my view, a very close and difficult case. Under any plausible doctrinal standard, the outcome would be difficult to predict, because each side had strong arguments, with logical and policy heft, and solid precedential support. (32) In both resolving the actual case before the Court in Alvarez and in attempting to puzzle out what Alvarez means for future cases involving false statements about military honors, the invocation of a Chaplinsky-style categorical approach did more harm than good.

   The plurality opinion in Alvarez striking down the Stolen Valor Act was written by Justice Kennedy and joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor. (33) Justice Breyer's opinion concurring in the judgment, joined by Justice Kagan, provided the additional two votes against the Act. (34) Justice Alito, joined by Justices Scalia and Thomas, dissented. (35)

   The protagonist in the case, Xavier Alvarez, was described by Justice Kennedy as a compulsive liar. (36) Alvarez had falsely claimed to have played hockey for the Detroit Red Wings, to have married a starlet from Mexico, to have been awarded the Congressional Medal of Honor, and to have been wounded in combat. (37) These false "statements were but a pathetic attempt to gain respect that eluded him." (38) For these pathetic attempts, Alvarez was convicted of violating the Stolen Valor Act, which among other things, criminalized a false declaration that one has received the Congressional Medal of Honor. (39)

   Justice Kennedy's plurality opinion made liberal use of the vocabulary of "historic categories" (40) in analyzing the validity of the Act, stating "content-based restrictions on speech have been permitted, as a general matter, only when confined to...