United States v. Alvarez

How is it possible that somehow the US Supreme Court managed to screw up the Stolen Valor Act case of US v. Alvarez? I know that they were distracted by the intra-office politics of the Obamacare case, but still... Come on!

Before we even get to the substance of the case, look at the lineup! At least NFIB v. Sebelius (i.e. the Obamacare case) had a (partial) opinion for the court...

KENNEDY, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and GINSBURG  and SOTOMAYOR, JJ., joined. BREYER,  J., filed an opinion concurring in the judgment, in which KAGAN, J., joined.  ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined. 

In other words, the result is a 4-2-3 split, with 6 votes to strike down the law, and with the three most conservative Justices - including the theoretically pro-speech Scalia - voting to uphold it.

Then the thing itself. From p. 3-4 of the opinion:

“(b) FALSE CLAIMS ABOUT RECEIPT  OF MILITARY DECORATIONS OR MEDALS.––Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States . . . shall be fined under this title, imprisoned not more than six months, or both.   

“(c) ENHANCED PENALTY FOR OFFENSES INVOLVING CONGRESSIONAL MEDAL OF HONOR.––  “(1) IN GENERAL.––If a decoration or medal involved in an offense under subsection (a) or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both.”

So, as far as the 1st Amendment goes, the key ingredients are:

• False statement of fact
• This statement is knowingly false, or is false because of a reckless disregard for the truth. (It doesn't say so explicitly, but this has to be read in because of the general mens rea requirements in criminal law, etc. Cf. Alito, J.'s opinion, fn. 1 on p. 2)
• This false statement of fact does not fall within any of the previously recognised exceptions to the 1st Amendment. (Defamation, perjury, fraud, etc. Cf. Kennedy, J.'s opinion, p. 5.)

Hence the legally interesting issue: Are these previously recognised exceptions the full extent of what Congress may do under the 1st Amendment, or is there instead one overarching exception for knowingly false statements of fact, of which fraud, perjury, defamation, etc. are only examples? This is a question that was discussed at length on the Volokh Conspiracy while this case made its way through the courts - Eugene Volokh being a 1st Amendment specialst - but unfortunately prof. Volokh is on vacation and has not yet blogged about the Supreme Court's ruling. So I'm going to have to make it up myself. (For the record: In the past, and in his amicus brief, prof. Volokh has argued that there is one big exception for knowingly false statements of fact.)

Now the Court:

• Kennedy, joined by the Chief, Ginsburg and Sotomayor argued the main question in the negative, and struck down the statute.
• The other two liberals, Breyer and Kagan, tried for some kind of European style proportionality analysis, without deciding anything about knowingly false statements of fact in general. (Although I read this opinion as being at least unsympathetic to a broad exception.)
• Alito, joined by Scalia and Thomas also don't answer the general question, but at least concede that "the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest."

On the whole, where it goes wrong is towards the end of Breyer's opinion. After all, there is much common ground - at least when it comes to this case - between his proportionality analysis and Alito's broader rule, given that Alito's statement hides the proportionality analysis in the concepts of "real harm" and "legitimate interest". So fundamentally there are 5 votes for this approach. However, and confirming the reason why American jurists often don't like proportionality analysis, Breyer and Alito cannot agree on the outcome of the analysis:

Both the plurality and JUSTICE  BREYER argue that Congress could have preserved the integrity of military honors by means other than a criminal prohibition, but Congress had ample reason to believe that alternative approaches would not be adequate. The chief alternative that is recommended is the compilation and release of a comprehensive list or database of actual medal recipients. If the public could readily access such a resource, it is argued, imposters would be quickly and easily exposed, and the proliferation of lies about military honors would come to an end. This remedy, unfortunately, will not work.
(...)
[T]he concurrence comments that “a more finely tailored statute might . . . insist upon a showing that the false statement caused specific harm.”  Ante, at 9 (opinion of BREYER, J.).  But much damage is caused, both to real award recipients and to the system of military honors, by false statements that are not linked to any financial or other tangible reward.
(...)
JUSTICE BREYER also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it eventually passes a law that draws the line in just the right place. 

(Opinion by Alito, J., p. 6-8)

I would tend to agree especially with this final point of criticism. Much as I respect the position that Justices should not tell the legislature what laws to enact, Justice Breyer could have - and should have - given Congress more guidance than he actually did. It is very difficult to look at the last two pages of his opinion and say which statute Congress could enact that would pass muster, and yet he insists that such a statute exists. 

And so, rather than gathering 5 votes for a clear proportionality analysis - which might end up striking down the statute or not - we ended up with this 4-2-3 monstrosity which still does not settle much of anything, except of course that the Stolen Valor Act is not OK. It is inevitable that proportionality is less predictable than a categorical analysis - that's the price you pay for avoiding the Scylla and Charibdis of nonsensical Byzantine sub-exceptions to sub-exceptions and rules that are much too black & white to make sense - but this judgement is a particularly disappointing example of proportionality at work. 


I guess prof. Volokh has his work cut out for him...