Falsity and the First Amendment: The U.S. Supreme Court Rules on the Stolen Valor Act

In the fourteen years that I practiced as a media defense lawyer before joining the Berkman Center, there was one sentence from one Supreme Court opinion that I learned to loathe above all others. It appears in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and reads as follows: "But there is no constitutional value in false statements of fact." Id. at 340. The court goes on to explain:

Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U. S., at 270. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942).

Id. The primary reason that I hate this particular sentence is that it is quoted out of context by plaintiffs' attorneys at one point or another in virtually every defamation action. Although the Court held that falsity itself does not advance society or the debate on public issues, it nevertheless went on - at the bottom of the very same page, mind you - to hold that there is nevertheless significant constitutional value in protecting certain falsehoods to ensure that publication of the truth is not chilled:

Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." [...] And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, at 279: "Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred." The First Amendment requires that we protect some falsehood in order to protect speech that matters.

Id. at 340-41 (emphasis mine).

As a result, I experience a chill down my own spine whenever I hear of a law that purports to ban "false" speech of this category or that, and the Stolen Valor Act (18 U.S.C. § 704) is no exception. But the Stolen Valor Act, which made it a federal misdemeanor to represent oneself falsely as having received a U.S. military decoration or medal, was meant to target knowing falsehoods. (Although § 704(b), the specific section that forbids these false statements, does not in fact contain a knowledge requirement, let's assume for the purposes of discussion only that the number of people who might be innocently mistaken about having received military honors is de minimis. Let's also assume that the law would not be applied to target actors in dramatic productions, on the theory that the actors are not claiming to have received these honors themselves.) Both Gertz and the earlier landmark decision in New York Times Co. v. Sullivan tell us that even when discussing public officials, knowing or intentional falsehoods are not protected against defamation claims. And we have long prohibited people from falsely claiming to be police or other government officials; see, e.g., 18 U.S.C. § 912.

Yet today, the U.S. Supreme Court, in a plurality opinion with a two-justice concurrence, affirmed the U.S. Court of Appeals for the Ninth Circuit in U.S. v. Alvarez, 567 U.S. ___ (2012), holding that the Stolen Valor Act is unconstitutional. And the reason is largely that notwithstanding that troublesome sentence in Gertz and subsequent cases (see Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) ("False statements of fact are particularly valueless"))