Lies and Levels of Scrutiny

By Associate Professor Aaron Caplan

The Stolen Valor Act is a federal statute that made it a crime to falsely say that one had received a military medal, even if that false statement was not made as a part of any scheme to counterfeit or defraud and even if no one believed the statement. In United States v. Alvarez, a 6-3 majority of the Supreme Court agreed with the 8-1 majority of my First Amendment students that the Act violates the constitution. The government has power to punish lies that cause concrete harms (such as fraud, defamation, or perjury), but it may not punish lies simply because they are distasteful. The proper response upon hearing distasteful lies is to counter them by speaking the truth.

I believe - like a majority of my students - that the Court decided this case correctly, but the reasoning used by a majority of Justices has the potential to establish constitutional standards that are less speech-protective than meets the eye. To begin with, there was no majority opinion. The four-justice plurality opinion by Justice Kennedy (joined by Roberts, Ginsburg and Sotomayor) was joined by a two-justice concurrence by Justice Breyer (joined by Kagan). Both opinions seemed to readily accept the notion that the government had a valid interest in controlling what people think about military medals as a means to protect the "integrity" or reputation of the government's chosen symbols. As I have written previously, I do not think this kind of mind control is a legitimate government interest at all, let alone a strong one. In this, I seem to be outvoted my all nine members of the Supreme Court (and for what it was worth, all of my students).

What actually separated the plurality and concurring opinions in Alvarez was a crucial question: by what standard should courts assess laws that criminalize speech based on content that does not fall into one of the historically recognized proscribable categories (obscenity, threats, etc.)?

Justice Kennedy reasoned that if speech does not fall into a proscribable category, the court should apply "exacting scrutiny" to determine if the government has really good reasons for banning the speech and has chosen really narrow means to ban it. Exacting scrutiny (a term used in some earlier opinions) may sound like strong speech protection, but something else is even stronger: a rule that the government simply cannot ban non-proscribable speech, no matter how good the reasons for banning it may seem at the moment. Once upon a time, this was Justice Kennedy's position. In Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 125 (1991), his concurring opinion pointed out that means/ends analysis of this sort originated with Equal Protection cases, and was not native to the First Amendment. The concurrence demonstrated how "the court appears to have adopted this formulation in First Amendment cases by accident rather than as the result of a considered judgment." At that time, Justice Kennedy was channeling Justice Black, who would have pointed out that the First Amendment says there shall be "no law" abridging freedom of speech, not "no law, unless there is a really good reason for it."

Over the years, Justice Kennedy seems to have made peace with means/ends balancing in content cases, as reflected in his Alvarez plurality. Wisely, he avoided the phrase "strict scrutiny," which can mean different things in different settings. His phrase "exacting scrutiny" may ultimately become a recognized term of art that signals a form of super-strict scrutiny extremely intolerant (but still a little tolerant) of content-based speech restrictions. Since the Court began down this path, it has upheld content-based laws only twice, in Burson v. Freeman, 504 U.S. 191 (1992) (upholding a ban on political campaigning near polling places) and Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) (upholding a ban on speech that would instruct designated terrorist organizations how to perform non-violent tasks). These cases demonstrate that "exacting scrutiny" is not the same as "no law." Time will tell if an "exacting scrutiny" standard will remain speech-protective in practice in times of perceived national danger. First Amendment history demonstrates that another balancing-type test - the "clear and present danger" approach - was quite easily massaged to allow blatant political prosecutions during WWI and during the McCarthy Era.

If Kennedy's opinion signed off on a balancing test for content regulations outside proscribable categories, Justice Breyer's concurrence went even further. Without explaining exactly why, he refused to make any inquiry into proscribable categories and chose to apply what he called "proportionality" or "intermediate scrutiny." His reasons for finding that the Stolen Valor Act flunked intermediate scrutiny were basically interchangeable with the reasons Justice Kennedy offered for saying it flunked exacting scrutiny. The concurrence does not explain whether Justice Breyer would use intermediate scrutiny for every free speech case, or only some of them (and if so, which ones). Instead, it merely asserts that there are "many instances" where a content-based speech restriction does not warrant the "near-automatic condemnation" of Justice Kennedy's approach, and certainly not the automatic condemnation of Justice Black's approach. If adopted by a majority, Justice Breyer's method would likely require re-evaluation of decades of free speech decisions.