Encouraging Congress to encourage speech: reflections on United States V. Alvarez.

• Author: Barnum, Jeffery C.

Like many Supreme Court decisions, United States v. Alvarez (1) answered many questions. Can the government proscribe false statements solely because they are false? (No.) What must the government establish before regulating or proscribing speech? (Likely or actual harm.) Also like many Supreme Court decisions, Alvarez created (or resurrected) at least as many questions as it answered. How much harm is required before the government can regulate speech? How do courts and lawmakers discern the holding when no opinion garnered a majority of Justices?

Both judges and lawmakers look to the Court for guidance. While judges have the advantage of actual parties and concrete facts, legislators must gaze into the future to craft legislation that comports with the Court's decision while meeting the needs of their constituents. This challenging task is made all the more difficult when the Court's decision is fractured, with no single legal theory attracting the votes of five Justices. This article attempts to shed some light on the path forward for the legislative branch, bifurcating (as does the Alvarez decision) to address the harms posed by false claims of military awards. This article starts by examining the pre-Alvarez legal landscape of proscribing content-based speech, (2) then examines how the Court treated its own precedent in Alvarez, including an analysis of Justice Breyer's concurrence and its application of intermediate scrutiny to content-based speech. (3) Of particular note is the emphasis on--and the differing treatments of--counterspeech, and its effect on the constitutional analysis. (4) Finally, both approaches to false statements of fact are applied to various approaches to addressing the harm of false claims of military valor: the plurality's approach as applied to the Stolen Valor Act of 2012 (which recently passed the House by a vote of 410 to 3), and Justice Breyer's intermediate scrutiny as applied to a statute designed to protect the reputation of military awards. (5)

1. PROHIBITING LYING IS CONTENT-BASED REGULATION

   Everyone agrees: proscribing falsehoods is a content-based regulation of speech. (6) Because content-based restrictions are presumptively invalid (7) this fact presented problems for Craig Missakian, (8) the Assistant United States Attorney defending the Stolen Valor Act (SVA or the Act) before the Ninth Circuit. To successfully defend the SVA, Mr. Missakian had to establish that either the First Amendment didn't apply to false statements of fact, or, if the First Amendment protected those falsehoods, the SVA either satisfied the rigors of strict scrutiny or fell into a "well-defined" exception. (9)

   The Ninth Circuit majority--Judges Milan D. Smith, Jr. (l0) and the late Thomas Nelson (11)--started by "presumptively protect[ing] all speech against government interference," (12) including false statements of fact. The majority also rejected the contention that the SVA was the least restrictive means to achieve the government's ends, (13) a point conceded (14) by the lone dissenter, Judge Jay Bybee. (15)

   Thus, the only remaining avenue to save the Act was to construe it as a member of a "well-defined and narrowly limited class[] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." (16) The Supreme Court enumerated these "narrow classes" in United States v. Stevens, and indicated that while the list was not finite, discovery of additional classes of unprotected speech would be rare. (17)

   Although Stevens had not been decided when Alvarez was argued at the Ninth Circuit on November 4, 2009, Xavier Alvarez's attorney, Assistant Federal Public Defender Jonathan Libby (who would also represent Alvarez before the Supreme Court), (18) successfully argued that the SVA did not fall into any of the categorical exceptions later collected by the Stevens Court. (19) The Ninth Circuit's decision, handed down just over four months after Stevens, was one of the first applications of Stevens's categorical approach. (20)

2. APPLICATION OF STEVENS IN ALVAREZ

   1. Justice Kennedy's Plurality Remains Faithful to Stevens

      If Justice Kennedy's plurality is the benchmark, the Ninth Circuit decision in Alvarez was right on the mark. Both opinions are structurally similar: first, they identify the supremacy of the categorical analysis; (21) second, they attempt (and fail) to shoehorn the SVA into a category of unprotected speech, either by construing the Act as fitting into one of the enumerated Stevens categories (defamation, fraud, etc.), (22) or by creating an additional category of unprotected speech; (23) and third, because the speech does not fall into an "unprotected" category, the Court applies "exacting" scrutiny, (24) and invalidates the statute. (25)

      There are two aspects of Kennedy's plurality which deserve special note, in part because they are reinforced in Breyer's concurrence. The first is the necessary (but not sufficient) requirement of a cognizable harm before the speech may be proscribed. (26) The second is the mandate for what Kennedy termed "counterspeech," which requires the government to encourage and enable more speech before considering proscriptions. (27)

      Yet because Kennedy's analysis tracks closely with the categorical approach of Stevens, the plurality also suffers from some of Stevens's weaknesses, especially in the arena of false speech. Quite apart from the categories identified in Stevens (28) (later expanded in Alvarez), (29) there are a number of instances where false statements are subject to proscription--even without fitting into a category of unprotected speech or meeting strict scrutiny. (30) The plurality identifies that these examples (including false statements to federal officials, perjury, or impersonating government officials) involve some potential cognizable harm, setting them apart from statutes "merely restricting false speech." (31)

      Apart from the observation that there is a difference between testimony under oath and mere falsehoods, the plurality does not identify the path to constitutionality for these statutes--do they fall into one of the categories, or do they constitute a new category of unprotected speech? (32) The plurality does not say. Although both Stevens and Alvarez did not limit the categories of unprotected speech, (33) this categorical approach is useful only so far as the categories can be readily identified.

      Professor Collins addresses this need in his well-researched foreword to this issue of the Albany Law Review. (34) In contrasting the number of categorical exceptions in the original Chaplinsky decision with the number extant when Stevens was decided, Professor Collins astutely observes that the currency of categorical exceptions "as a jurisprudential theory depends on a specified, limited number of exceptions." (35) Indeed, a limited number of categorical exceptions assist the legislative branch in passing constitutional laws: the bounds are relatively well known, as are the consequences for transgressing those boundaries. Legislators, instead of seeking an additional exception to permit regulation, must explore the breadth of a particular category. (36)

      Although a categorical approach may provide guidance to legislatures, it also fails to account for certain categories of speech for which regulation may be desirable, but do not fit into any of the enumerated categories. For example, the Alvarez plurality noted the "unquestioned constitutionality of perjury statutes," (37) justifying this statement by observing that "[s]worn testimony is quite distinct from lies not spoken under oath." (38) True enough, but where does perjury fit among the limited categories of proscribable speech? Do all perjury statutes satisfy strict scrutiny? Does perjury fall into an as-yet-undefined category of unprotected speech? Or does the fraudulent speech exception stretch to include fraud on the court? The categorical approach, as re-iterated by the plurality in Alvarez, fails to address these questions.

   2. Breyer's Concurrence Charts Path for Lawmakers, if Not for Judges

      Although Justice Breyer (joined by Justice Kagan) provided the necessary votes to invalidate the speech restrictions of the Stolen Valor Act, his concurrence represents an erosion of Stevens's strict categorical approach. (39) This departure is significant because Breyer's opinion (when combined with the three dissenting votes) provides a roadmap to lawmakers enacting future versions of the Stolen Valor Act (or any statute proscribing harmful false factual speech). (40)

      As the Supreme Court explained in Marks v. United States, (41) "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." (42) The Marks analysis can be relatively straightforward "when one opinion is a logical subset of other, broader opinions." (43) Where none of the opinions would command a majority of five Justices, the "narrowest ground" analysis becomes more problematic. (44)

      For that reason, identifying the holding in Alvarez--the first fractured First Amendment decision since Stevens--is difficult. (45) By foreseeing permissible regulation of harmful false speech (but not in this case), Breyer's concurring opinion resembles Justice O'Connor's concurring opinion in Pennsylvania v. Delaware Valley Citizens" Council for Clean Air. (46) Just as O'Connor's concurrence foresaw a different result with different facts, (47) Breyer's concurrence anticipates that a statute that does not wreak "disproportionate constitutional harm" would pass constitutional muster. (48) The lack of a "narrow grounds" out of which to craft a holding could present problems for judges examining other false-speech statutes. (49)

      However, Marks is a tool of judicial interpretation...