TYMKOVICH, Circuit Judge.
Appellant Rick Strandlof was charged under the Stolen Valor Act, 18 U.S.C. § 704(b), which makes it illegal to falsely claim to have received a military award or honor. We must decide whether the Act is constitutional. Answering this question requires us to determine whether, and to what extent, the First Amendment prohibits Congress from punishing knowingly false statements of fact.
Reasoning that false statements are generally protected by the First Amendment, the district court declared the Stolen Valor Act unconstitutional and dismissed the charges against Strandlof. We disagree with this reading of Supreme Court precedent and reverse. As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.
The Stolen Valor Act provides:
18 U.S.C. § 704(b). The Act provides for jail terms of up to six months for most misrepresentations and up to a year for false statements that a person has received the Congressional Medal of Honor or other specified awards. Id. § 704(d).
Over a multi-year period, Appellant Rick Strandlof concocted a ruse that plainly put him in the cross-hairs of the Stolen Valor Act. Despite never having served in the armed forces, Strandlof founded the Colorado Veterans Alliance, and he frequently told veterans he graduated from the United
A number of local veterans found Strandlof to be an unconvincing imposter. Angered by Strandlof's lies, they contacted the FBI and reported their suspicion that "Rick Duncan" was a phony. After military officials confirmed Strandlof never attended the Naval Academy or served in the military, the government filed a criminal complaint in the District of Colorado charging Strandlof with making false claims about receipt of military decorations or medals, in violation of the Stolen Valor Act.
Strandlof pleaded not guilty and moved to dismiss the charges. Represented by a federal public defender, he argued the Stolen Valor Act is unconstitutional under the First Amendment, both facially and as applied to him, because it is a content-based restriction on speech. Rejecting the government's argument that false speech is unprotected under the First Amendment, the district court found the Act facially unconstitutional and granted Strandlof's motion. United States v. Strandlof, 746 F.Supp.2d 1183, 1185 (D.Colo.2010). The court held that false speech is protected by the First Amendment unless it falls within one of the narrow categories of speech that have been historically recognized as exceptional, such as fraud or defamation. Id. at 1186-88. The district court further held the speech criminalized by the Stolen Valor Act was analogous neither to fraud nor defamation, and that it could not be shoehorned into any of the other historical categories. Id. The district court therefore characterized the Act as a content-based regulation of protected speech and held that it did not survive strict scrutiny. Id. at 1189-91.
Other courts have confronted this same question, with varying results.
In a dissenting opinion, Judge Bybee concluded strict scrutiny was unnecessary because Supreme Court precedents established knowingly false statements of fact as a category of speech unprotected by the First Amendment. Id. at 1218-19 (Bybee, J., dissenting). In addition, several circuit judges wrote concurring or dissenting opinions to the Ninth Circuit's subsequent, narrowly divided, order denying rehearing. The Supreme Court granted a writ of certiorari to review Alvarez.
District courts considering the question have reached varying conclusions. Like the Ninth Circuit and the District of Colorado, the Southern District of Iowa concluded the Stolen Valor Act is an unconstitutional content-based restriction on speech. United States v. Kepler, No. 4:11-cr-00017 (S.D.Iowa May 31, 2011) (order). Conversely, in United States v. Robbins, 759 F.Supp.2d 815 (W.D.Va.2011), the Western District of Virginia concluded false statements of fact are not constitutionally protected and upheld the Act.
Appeals involving the constitutionality of the Stolen Valor Act are pending in the Eighth and Eleventh Circuits. See United States v. Kepler, No. 11-2278 (8th Cir. 2011); United States v. Amster, No. 10-12139 (11th Cir.2011).
The sole question presented is whether the Stolen Valor Act, a content-based restriction on speech, is facially constitutional. We find it is and reverse the district court's decision. As the Supreme Court has repeatedly asserted, the Constitution does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow "breathing space" for core protected speech—as the Supreme Court calls it, "speech that matters." Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (applying New
In the next section, we review the specifics of the Act, analyze what the Supreme Court has and (as importantly) has not said about legislative restrictions on false statements of fact, and survey past legislative efforts to regulate in this area.
Since America's founding, penalties have been imposed for wearing unauthorized military medals. General Orders of George Washington Issued at Newburgh on the Hudson, 1782-1783, at 34-35 (Edward C. Boynton ed., 1883) (reprint 1903) ("Should any who are not entitled to the [military] honors have the insolence to assume to the badges of them, they shall be severely punished."); see also Alvarez, 617 F.3d at 1234 (Bybee, J., dissenting). And since 1949, 18 U.S.C. § 704(a) has made it illegal to wear, manufacture, or sell unauthorized military awards. In recent years, during the Afghanistan and Iraq wars, Congress judged prior laws insufficient to deter false statements regarding military decorations, see, e.g., 151 Cong. Rec. S12,688 (daily ed. Nov. 10, 2005) (statement of Sen. Conrad), and Congress responded in 2006 by passing the Stolen Valor Act, 18 U.S.C. § 704(b). In doing so, Congress found, among other things, that false statements regarding military honors effect harm by "damag[ing] the reputation and meaning of [ ] decorations and medals." Stolen Valor Act of 2005, Pub.L. No. 109-437, § 2(1), 120 Stat. 3266 (2006). According to Congress, the legislation was necessary "to permit law enforcement officers to protect the reputation and meaning of military decorations and medals." Id. § 2(3).
The restrictions in the Stolen Valor Act are specifically aimed at one category of speech—lies about military honors. Given this focus, the Act is a content-based restriction on speech. Under the plain terms of the Act, if someone pontificating on a street corner falsely (and with knowledge of the falsehood) proclaims to be a decorated veteran, he has committed a criminal act. It is inconsequential whether the lie induced reliance or caused discrete harm.
Despite the potential breadth of the statute, however, it has limits. The Supreme Court requires we read an act of Congress narrowly, so as to avoid constitutional problems. We "will . . . not lightly assume that Congress intended to infringe constitutionally protected liberties." Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."). Accordingly, we find the Act is limited in two important ways.
Second, the Stolen Valor Act does not criminalize any satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements that qualify as protected speech. See, e.g., Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam) (interpreting prohibition on knowingly making "any threat" to harm the President as excluding "political hyperbole" in the absence of any evidence of contrary congressional intent). The Act's requirement that false statements be made with an intent to deceive, as we explain below, would not allow the government to prosecute individuals for making ironic or other artistically or politically motivated statements. Black's Law Dictionary 1415 (a "representation" is a "presentation of fact").
We thus disagree with the suggestion that upholding the Stolen Valor Act would lead America down a slippery slope where Congress could criminalize an appallingly wide swath of ironic, dramatic, diplomatic, and otherwise polite speech. See, e.g., United States v. Alvarez, 638 F.3d 666, 684 (9th Cir.2011) (Kozinski, C.J., concurring in the denial of rehearing en banc) (cataloguing various colorful, everyday utterances that legislatures could conceivably criminalize if the Stolen Valor Act is upheld). Indeed, just because Congress can criminalize some lies does not imply it can attack opinions (e.g., "You look beautiful today"), ideologically inflected statements (e.g., holocaust denial or climate change criticism), or anything else that is not a knowingly false factual statement made with an intention to deceive.
The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I.
Despite this plain language, little historical consensus exists as to the original public meaning of this clause, in part because the framers apparently did not envision that Congress would actively regulate speech. See Akhil Reed Amar, How America's Constitution Affirmed Freedom of Speech Even Before the First Amendment, 38 Cap. U.L.Rev. 503, 504 (2010). It is clear, however, that, "[t]he framing-era conception of freedom of speech and the press was anything but capacious, at least by contemporary standards." Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1, 13 (2011); see also Frederick Schauer, Facts and the First Amendment, 57 UCLA L.Rev. 897, 904 (2010) (observing that initially, "[c]ampaigns for increased freedom of speech . . . were largely about the claimed right to criticize . . . the government . . . but it was scarcely even suggested that freedom of speech encompassed the right to articulate factually false propositions"). Indeed, it took Congress only a few years to pass the Sedition Act of 1798, 1 Stat. 596, which made it a crime to "write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress . . ., or the President. . ., with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States." See also New York Times, 376 U.S. at 273-74, 84 S.Ct. 710 (describing the content and import of the Sedition Act). While the Sedition Act was never formally tested in the Supreme Court (it expired on March 3, 1801, the day before President Adams's presidential term ended), the Act has long been recognized as unconstitutional. See, e.g. id. at 276, 84 S.Ct. 710 ("Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history."); Act of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No. 86, 26th Cong., 1st Sess. (1840) (repaying fines levied in Sedition Act prosecutions on the ground that the Act was unconstitutional). And it was not until the 1920s and 1930s, in cases involving prosecutions for allegedly seditious political activity, that the Supreme Court first invoked liberty interests inherent in the Fourteenth Amendment's due process clause to reverse criminal convictions based on speech. See, e.g., Fiske v. Kansas, 274 U.S. 380, 47 S.Ct. 655, 71 L.Ed. 1108 (1927); Stromberg v. People of State of Cal., 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931); Amar, supra, at 504.
Over time, however, free speech doctrine has evolved to reflect a broad and principled conception of the First Amendment. "At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. `[T]he freedom to speak one's mind is not only an aspect of individual liberty—and thus a good unto itself—but also is essential to the common quest for truth and the vitality of society as a whole.'" Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876,
Given this case law, the Stolen Valor Act, a content-based restriction, is "presumptively invalid, and the government bears the burden to rebut that presumption." United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (quotation omitted). And doubly so since the Act criminalizes the speech it condemns.
But despite the First Amendment's open-ended language, not all categories of speech receive full constitutional protection. The Supreme Court, in a long line of cases, has recognized Congress may regulate some types of speech without facing constitutional scrutiny. For example, in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), the Supreme Court upheld a law prohibiting "fighting words," reasoning the Constitution does not afford shelter to words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." In doing so, the Court observed, "it is well understood that the right of free speech is not absolute at all times and under all circumstances." Id. at 571, 62 S.Ct. 766; see also Gertz, 418 U.S. at 382, 94 S.Ct. 2997 (White, J., dissenting) (the framers recognized, "in any well-governed society, the legislature has both the right and the duty to prohibit certain forms of speech" (quotation omitted)). As Justice Story, one of our most respected constitutional scholars, recognized, the First Amendment is not made of absolutes: it was never "intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please"; to think so "is a supposition too wild to be indulged by any rational man." Joseph Story, Commentaries on the Constitution 703 (1833). Similarly, Thomas Cooley, perhaps the leading constitutional scholar of the Reconstruction Era, suggested the First Amendment protects expression only "so long as it is not harmful in its character, when tested by such standards as the law affords." Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 421 (1868). While these conceptions of the First Amendment are quaint by today's standards, they frame the historical context of our narrow inquiry: whether false statements of fact are entitled to blanket First Amendment protection.
Since the 1960s, the Supreme Court has repeatedly declared that knowingly false statements of fact, as a category of speech, are not generally entitled to full First Amendment protection. As the Court recently confirmed, protection of false statements is derivative of the need to ensure that false-speech restrictions do not chill valuable speech. "[W]hile false statements may be unprotected for their own sake, the First Amendment requires
This approach to false-statements legislation traces back to three Supreme Court cases involving defamation: New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); and Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). These cases and the cases that follow teach us that false statements of fact are generally unprotected— but with a caveat. The Court has recognized that false-speech restrictions may violate the First Amendment when they are so suffocating as to afford inadequate breathing space for constitutionally valuable speech.
In fleshing out this doctrine, we start with the celebrated case of New York Times Co. v. Sullivan, 376 U.S. at 280-84, 84 S.Ct. 710. There, the Supreme Court set forth a framework for applying the First Amendment to states' abilities to punish defamatory falsehoods. In striking down an aspect of Alabama's defamation law, the Court held the First Amendment (and Fourteenth Amendment)
Just a few months after New York Times, the Supreme Court applied these principles in Garrison v. Louisiana. In that case, the Court recognized expressly that knowingly false statements are not entitled to full First Amendment protection:
The Court went on to proclaim:
Garrison, 379 U.S. at 75, 85 S.Ct. 209 (emphasis added) (citation, quotation marks, and alterations omitted).
Ten years later, in Gertz v. Robert Welch, the Supreme Court reiterated, in perhaps even plainer terms, that false statements of fact receive limited shelter from the First Amendment:
418 U.S. at 339-40, 94 S.Ct. 2997 (citation and quotation marks omitted) (emphasis added). In line with the breathing space principle enunciated in New York Times, the Court recognized false statements of fact are "inevitable in free debate . . . [a]nd punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press." Id. at 340, 94 S.Ct. 2997. Therefore, the Court explained, "[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters." Id. at 341, 94 S.Ct. 2997. And the Court also noted that, if a law provides breathing space but chills some speech, the law is constitutional only if it "reach[es] no farther than is necessary to protect the legitimate interest involved." Id. at 349, 94 S.Ct. 2997.
Thus, the Supreme Court has expressly stated that, although laws punishing false statements must afford adequate breathing space to protected speech, knowingly false factual statements are not intrinsically protected under the First Amendment. The theoretical basis for this classification is based on the understanding that "[f]alse statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or effective." Hustler Magazine, 485 U.S. at 52, 108 S.Ct. 876. In other words, knowingly false statements, in contrast even to incendiary ideas, are no part of the "the common quest for truth and the vitality of society as a whole." Id. at 51, 108 S.Ct. 876. Just because controversial ideas and opinions merit constitutional protection does not
In summary, New York Times, Garrison, and Gertz require a three-part inquiry. First, we must assess whether a law punishes only knowingly false statements. If this is the case, the court must then decide whether the law leaves adequate "breathing space" for truthful and other fully protected speech. And if a statute survives both of these inquiries but still chills some speech, it is constitutional so long as it reaches no further than necessary to protect the government's legitimate interest.
The breathing space approach set forth in these cases remains good law and is binding on us. Further, New York Times, Garrison, and Gertz are not anomalous constitutional outliers. In fact, consistently over the past five decades—in cases involving defamation, libel, commercial speech, intentional infliction of emotional distress, and other legislative areas—the Court has reiterated that false statements of fact receive minimal constitutional protection. See, e.g., BE & K Constr. Co., 536 U.S. at 530-31, 122 S.Ct. 2390 ("[F]alse statements are not immunized by the First Amendment right to freedom of speech. . . ." (quotation omitted)); Hustler Magazine, 485 U.S. at 52, 108 S.Ct. 876 ("False statements of fact are particularly valueless. . . ."); Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984) ("False statements of fact harm both the subject of the falsehood and the readers of the statement. . . . There is no constitutional value in false statements of fact." (quotation omitted)); Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 743, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) ("[F]alse statements are not immunized by the First Amendment right to freedom of speech. . . ."); Brown v. Hartlage, 456 U.S. 45, 60-61, 102 S.Ct. 1523, 71 L.Ed.2d 732 (1982) (false factual statements "are not protected by the First Amendment in the same manner as truthful statements" (citation omitted)); Herbert v. Lando, 441 U.S. 153, 171, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979) ("Spreading false information in and of itself carries no First Amendment credentials. `[T]here is no constitutional value in false statements of fact.'" (quoting Gertz, 418 U.S. at 340, 94 S.Ct. 2997)); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) ("Untruthful speech . . . has never been protected for its own sake."); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 499 n. 3, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975) (Powell, J., concurring) ("[T]he common premise [is] that while the Constitution requires that false ideas be corrected only by the competitive impact of other ideas, the First Amendment affords no constitutional protection for false statements of fact."); Time, Inc. v. Hill, 385 U.S. 374, 389, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) ("[C]onstitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function.").
Most circuit courts have recognized these authorities and held that false statements of fact receive limited First Amendment protection. See, e.g., Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 228 (3d Cir.2004) ("[L]ies and untruthful statements are protected under First Amendment jurisprudence only in those rare instances where they contribute to the uninhibited marketplace of ideas." (quotation omitted)); Colson v. Grohman, 174 F.3d 498, 507 (5th Cir.1999) ("[I]ntentional or reckless falsehood, even political falsehood, enjoys no First Amendment protection."); Pestrak v. Ohio Elections Comm'n, 926 F.2d 573, 577 (6th Cir.1991) ("[F]alse speech, even political speech,
And most importantly, these principles extend well beyond the narrow context of defamation. Since New York Times, Garrison, and Gertz, courts have extended the "false statements of fact" exception to cover many categories of false-speech statutes, including laws punishing fraud, false-light invasion of privacy, intentional infliction of emotional distress through false statements, trade libel, perjury, unsworn false statements of fact made to governmental officials, impersonation of a governmental official, false claims regarding university degrees and professional licenses, falsehoods in connection with political campaigns, falsehoods likely to provoke public panic, and falsehoods that are likely to lead to physical harm. See Brief for Eugene Volokh & James Weinstein Amici Curiae Supporting Petitioner at 3-11, United States v. Alvarez, No. 11-210 (U.S. Dec. 7, 2011); Brief for Eugene Volokh Amicus Curiae Supporting Plaintiff at 1, United States v. Strandlof, No. 09-cr-00497 (D.Colo. Jan. 15, 2010).
Simultaneously, the breathing space standard of scrutiny first applied in New York Times has become the default approach in First Amendment challenges to laws regulating all categories of false statements of fact. A restriction on knowingly false factual statements is constitutional so long as it has some limiting characteristic that prevents it from suppressing constitutionally valuable opinions and true statements. The Supreme Court has applied this principle, either expressly or implicitly, in at least the following six contexts:
• Defamatory Falsehoods. For defamation actions involving public officials, liability is appropriate only if the plaintiff proves, by clear and convincing evidence, that false statements were made with knowledge or reckless disregard of their falsity, New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. Non-public individuals, however, need only show the defamatory statements were made negligently. Gertz, 418 U.S. at 344, 94 S.Ct. 2997.
• Fraud. For fraud actions, liability is appropriate only if there are limiting elements such as scienter, materiality, and reliance. Illinois ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600, 620 [123 S.Ct. 1829, 155 L.Ed.2d 793] (2003).
• False-Light Torts. For false-light tort actions, liability is appropriate only when someone knowingly makes false statements, reasonably understood as statements of fact, that inflict emotional distress, without defaming or invading
• Perjury. For perjury or fraudulent administrative filings, liability is appropriate only if the government shows the misrepresentation was willful, material, and uttered under circumstances in which the misrepresentation is designed to cause injury to the government or private interests. United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993); see also Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 n. 10, 81 S.Ct. 997, 6 L.Ed.2d 105 (1961).
• Baseless Litigation. In a suit seeking damages as a result of baseless litigation, liability is appropriate only if the litigation is "both objectively baseless and subjectively motivated by an unlawful purpose." BE & K Constr. Co., 536 U.S. at 531, 122 S.Ct. 2390 (quoting Bill Johnson's Rest., 461 U.S. at 743, 103 S.Ct. 2161) (quotation marks and citation omitted).
• Intentional Infliction of Emotional Distress. In a suit by a public figure seeking to recover for intentional infliction of emotional distress, liability is appropriate only if there is a showing of actual malice. Hustler, 485 U.S. at 53, 56, 108 S.Ct. 876.
Although the Supreme Court has never precisely delineated how much breathing space is necessary, these examples and associated cases reflect the Court's consistent application of principles from New York Times—the same principles we must apply here.
No recent, directly applicable Supreme Court case calls into question the long-established breathing space approach. And, moreover, the Supreme Court has never suggested that breathing space analysis is appropriate only for historically unprotected categories of false speech. To the contrary, the breathing space inquiry applies whenever government regulates false speech. So regardless of whether the Stolen Valor Act has identifiable historical precedents, its survival turns only on whether it satisfies breathing space principles.
This conclusion is illustrated perhaps most succinctly by Time, Inc. v. Hill, 385 U.S. at 388-90, 87 S.Ct. 534, where the Supreme Court applied breathing space analysis to address a New York law giving public figures the right to sue for damages when false factual statements invaded their privacy by placing them in a false light. The Court adopted this approach despite expressly recognizing that, unlike defamation, the false-light tort did not arise out of a long historical tradition. Id. at 380-81 & n. 3, 87 S.Ct. 534. To ensure adequate breathing space for protected speech, the Court held that to recover under a false-light theory, a plaintiff must prove a false statement was made knowingly or recklessly. Id. at 389-90, 87 S.Ct. 534.
The parties here disagree on the effect of the Supreme Court's two most recent First Amendment pronouncements—United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), and Brown v. Entertainment Merchants Association, ___ U.S. ___, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011)—on the Court's longstanding approach to false-statement legislation. Strandlof argues these cases fundamentally disrupt the Court's prior approach—implicitly overruling a substantial body of Supreme Court case law.
A precise analysis of what Stevens and Brown say—and critically, what they do
In Brown, the Court explained that these categories of unprotected speech are inflexible and preordained by our nation's history. "[W]ithout persuasive evidence that a novel restriction on content is part of a long . . . tradition of proscription, a legislature may not revise the judgment [of] the American people, embodied in the First Amendment, that the benefits of its restrictions on the Government outweigh the costs." Brown, 131 S.Ct. at 2734. The Court cautioned lawmakers to think twice before crafting new, as-of-yet-unrecognized categories of unprotected speech—and it expressly foreclosed the adoption of a balancing test to determine whether speech is valuable enough to merit constitutional protection. "[N]ew categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated." Id. Accordingly, "[t]he First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits." Stevens, 130 S.Ct. at 1585.
In line with these principles, the Court has listed examples of unprotected classes of speech—including obscenity, defamation, fraud, incitement, and speech integral to criminal conduct—but the Court has never voiced an intention to craft a comprehensive and inflexible list of unshielded utterances. See Stevens, 130 S.Ct. at 1584. To the contrary, the Court has recognized that "[m]aybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law."
Importantly, the breathing space analysis explained above is not an "ad hoc balancing of interests" of the sort foreclosed by Stevens, 130 S.Ct. at 1585. Rather, breathing space analysis recognizes that false statements of fact are categorically unprotected for their own sake, and then asks courts to consider whether the challenged legislation impinges on or chills core speech. While this approach gives courts some discretion in deciding how much breathing space suffices, the approach is not a balancing test in any ordinary sense. Instead, this analysis is more aptly characterized as a specific method of review the Court uses to assess laws regulating false factual statements. Breathing space review is no more of a balancing test than strict scrutiny, intermediate scrutiny, or rational basis review.
As we read the cases, one such unprotected category is knowingly false statements of fact—a category the Supreme Court has considered time and again for the past 50 years. Under this understanding, the standard of review is straightforward: so long as the legislature leaves breathing space for valuable speech, it may restrict knowingly false statements of fact.
Accordingly, our inquiry is not whether the Stolen Valor Act is narrowly tailored to serve a compelling governmental interest. This is the lesson of New York Times, Garrison, Gertz, and the numerous cases that followed—none of which has been overturned or questioned. The Court's false-statements precedents remain good law, and the Court in Stevens and Brown did not purport to reverse New York Times, Garrison, Gertz, and their heirs sub silentio. As the dissenting opinion in Alvarez stated, "We do not have the authority as a lower court to limit the Court's statements to what we believe they mean rather than what they actually say." 617 F.3d at 1223 (Bybee, J., dissenting).
The dissent conceptualizes the case law as applying only to "injurious falsehoods." Dissent, passim. This analysis has much to commend itself. But the Supreme Court has yet to announce such a category, and as we read the cases to date its cases express a different principle. Even the dissent recognizes that the "injury" element does not flow naturally from the case law, requiring it to extract a broad notion of "direct" and "indirect" injury to persons and governmental processes to protect traditional areas regulated by statute or tort law. Dissent at 1189. Even so, this categorization calls into question many laws we
In sum, we understand current Supreme Court precedent to hold that although the First Amendment protects ideas, beliefs, and some erroneous statements of fact, the same level of protection does not generally extend to knowingly false statements of fact. Therefore, a restriction on knowingly false factual statements is constitutional so long as it has some limiting characteristic that prevents it from suppressing constitutionally valuable opinions and true statements.
The constitutional doctrine thus admits to some regulation of false speech, and many examples, from both the federal government and the states, confirm this understanding. Contrary to Strandlof's contentions, the Stolen Valor Act does not stand alone. Congress has not been reluctant to enact, and the Supreme Court has not hesitated to uphold, a number of broadly applicable measures regulating, and occasionally criminalizing, false statements of fact.
Perhaps the most familiar of these statutes is 18 U.S.C. § 1001(a), which prohibits "knowingly and willfully" making any "materially false, fictitious, or fraudulent statement or representation" in "any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States."
Section 1001 is not a lone example. To the contrary, there are at least 100 other federal criminal statutes that penalize making false statements—none of which has been invalidated under the First Amendment. See United States v. Wells, 519 U.S. 482, 505, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (Stevens, J., dissenting) ("[A]t least 100 federal false statement statutes may be found in the United States Code. About 42 of them contain an express materiality requirement; approximately 54 do not."). For example, it is a crime to falsely and willfully claim to be a citizen of the United States, 18 U.S.C. § 911, and it is a crime to make a knowingly false statement for the purpose of establishing eligibility to vote, 42 U.S.C. § 1973i(c). Likewise, various perjury statutes criminalize false statements made under oath, even if the perjurer has no intent to mislead, and even if there is no harm to the tribunal or inquiry. See 18 U.S.C. § 1623; 18 U.S.C.
Similar criminal statutes abound. See, e.g., 18 U.S.C. §§ 922(a)(6), 924(a)(1)(A) (knowingly false statements in connection with purchasing and owning firearms); 22 U.S.C. § 2778(c) (willfully untrue statements on report involving export and import of arms); 18 U.S.C. § 1015 (knowingly false statements related to citizenship and naturalization); 18 U.S.C. § 1027 (knowingly false statements in records required by ERISA); 20 U.S.C. § 1097(b) (knowingly false statements in connection with assignment of federally insured student loan); 42 U.S.C. § 405(c)(2)(C)(i) (willful and deceitful use of a false social security number); see also Wells, 519 U.S. at 505 n. 9, 117 S.Ct. 921 (cataloguing statutes); United States v. Gaudin, 28 F.3d 943, 959 n. 3 (9th Cir.1994) (Kozinski, J., dissenting) (cataloguing statutes).
Additionally, in a related area of law relevant to Strandlof's challenge, Congress has made it a crime to falsely purport to speak on behalf of the government. For example, it is illegal to falsely claim to be a federal officer, 18 U.S.C. § 912, or to convey a false impression of governmental endorsement in association with the Social Security Administration, 42 U.S.C. § 1320b-10(a). The goal of these provisions is to prevent con artists from misappropriating and diluting the government's message. See United States v. Lepowitch, 318 U.S. 702, 704, 63 S.Ct. 914, 87 L.Ed. 1091 (1943) ("actual financial or property loss" are not elements of § 912 because Congress enacted the statute to "maintain the general good repute and dignity" of government service). The Stolen Valor Act accomplishes a similar goal.
States have passed analogous measures. For example, multiple state courts have upheld laws barring individuals from falsely claiming to have a particular university degree or professional license. Long v. State, 622 So.2d 536 (Fla.Dist.Ct.App.1993) (upholding statute barring knowingly false claims of having a university degree); People v. Kirk, 62 Misc.2d 1078, 310 N.Y.S.2d 155 (Cnty Ct.1969) (same); State v. Marino, 23 Kan.App.2d 106, 929 P.2d 173 (1996) (upholding statute barring knowingly false claims of having a professional license). Other states have upheld laws banning candidates for office from making knowingly false statements in the context of political campaigns. See, e.g., Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 150 Mich.App. 617, 389 N.W.2d 446 (1986) (upholding a statute banning false claims that one is an incumbent); State v. Davis, 27 Ohio App.3d 65, 499 N.E.2d 1255 (1985) (affirming criminal conviction for knowingly making false statements of fact in a political campaign); Ohio Democratic Party v. Ohio Elections Comm'n, No. 07AP-876, 2008 WL 3878364 (Ohio Ct.App. Aug. 21, 2008) (upholding a statute prohibiting candidates from claiming to hold an office they do not currently hold). Examples of false-statement laws enacted by state legislatures are too numerous to list, but it suffices to say these laws cover widely divergent categories of false factual speech.
Finally, we note there are numerous examples of state-law convictions for various forms of impersonation and misappropriation of governmental speech. See, e.g., State v. Messer, 278 Kan. 161, 91 P.3d 1191 (2004) (upholding conviction under Kansas false impersonation statute when defendant falsely claimed to be an undercover police officer, apparently with no attempt to use the pretense to obtain money or property); State v. Wickstrom, 118 Wis.2d 339, 348 N.W.2d 183 (Wis.Ct.App.1984) (upholding a state ban on falsely acting as a police officer); State v. Cantor, 221 N.J.Super. 219, 534 A.2d 83 (N.J.Super. Ct.App.Div.1987) (upholding conviction of defendant who impersonated a county morgue employee).
With this legal framework and historical background, we turn to the constitutionality of the Stolen Valor Act.
Under the Supreme Court's precedents, the Stolen Valor Act is facially constitutional. The Act prohibits only knowingly false statements of fact, it provides breathing space for valuable speech, and it "reach[es] no farther than is necessary to protect the legitimate interest involved." Gertz, 418 U.S. at 349, 94 S.Ct. 2997. There is almost no danger anyone would suppress their speech to avoid punishment under the Act.
Most importantly, under the Act, no one may be punished unless it is proven that he knowingly made a false statement of fact, and the government must establish any disputed facts beyond a reasonable doubt. This scienter requirement provides "an extremely powerful antidote to the inducement to [] self-censorship." Id. at 342, 94 S.Ct. 2997. And tellingly, the Supreme Court has never invalidated a false-statement restriction that contains a knowledge requirement.
Further, not just any false statement is punishable under the Stolen Valor Act. Utterances criminalized by the Act are objective and verifiable, and they are particularly valueless under First Amendment principles. Although military affairs are undoubtedly matters of public importance, lying about receiving military medals does nothing to contribute to any conceivable public debate. The Stolen Valor Act simply does not punish political speech, factually correct statements, artistic expressions, or opinions of any sort.
In this same vein, the Stolen Valor Act's content-based restriction is permissible because "there is no realistic possibility that official suppression of ideas is afoot." R.A.V., 505 U.S. at 390, 112 S.Ct. 2538, see also id. at 387, 391, 112 S.Ct. 2538 ("[C]ontent discrimination," even within a class of "proscribable speech," is presumptively unconstitutional because it may "impose special prohibitions on those speakers who express views on disfavored subjects."). False claims violating the Act do not advance a particular viewpoint or a specific topic of debate. A person is extraordinarily unlikely to mistakenly claim to have been awarded a military medal, and the accuracy of statements regarding military awards is objectively verifiable. Cf. Virginia State Bd. of Pharmacy, 425 U.S. at 771 n. 24, 96 S.Ct. 1817 (false statements in commercial advertising are more easily punishable than other false statements because "[t]he truth of commercial speech . . . may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else"). Indeed, there is scant risk the Stolen Valor Act would cause someone to refrain from truthful speech about military awards out of "doubt whether [truth or lack of knowledge] can be proved in court or fear of the expense of having to do so." New York Times, 376 U.S. at 279, 84 S.Ct. 710.
This contrasts the false speech at issue here with libel or defamation actions, where it is often challenging to determine whether factual allegations are in fact untruthful. "Even courts accepting th[e] defense [of truthfulness] as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars." Id. Determining whether someone has violated the Stolen Valor Act is simple and, in nearly any conceivable case, not subject to error. Therefore, the government cannot use the Stolen Valor Act to suppress undesirable political opinions.
For these reasons, the Stolen Valor Act simply does not encroach on any protected speech. It punishes only false statements that are made knowingly and are objectively verifiable; there is no risk of stifling opinions or true statements; the Act does not advocate any particular viewpoint or take a stance on any dogma or scientific issue; there is no danger that a political majority could use the law to censor legitimate speech; and there is no threat of suppressing ideas or opinions. In short, breathing space is plentiful. There is no danger that anyone would suppress their speech to avoid prosecution under the Stolen Valor Act.
Finally, even were we to assume the Stolen Valor Act chills some speech, it "reach[es] no farther than is necessary to protect the legitimate interest involved." Gertz, 418 U.S. at 349, 94 S.Ct. 2997. As an initial matter, the government has an
Further, the Stolen Valor Act is closely tied to the strong governmental interest in protecting the value of military honors. As already explained, the Act chills very little, if any, protected speech. Moreover, the Act is but the latest, incremental step among many Congress has taken to protect the integrity and effectiveness of the military honors system. In addition to a longstanding and well-developed set of guidelines governing military awards, see generally Dept. of Defense, Manual of Military Decorations and Awards (2010), the government has installed numerous specific measures to safeguard the prestige of military honors. Among many others, these include: prohibiting the award of the highest honors to those whose subsequent conduct has not been honorable; revoking medals if later-discovered facts would have foreclosed the award of the medal; publishing the names of Medal of Honor recipients; taking steps to protect the intellectual property associated with medal designs, so as to prevent imitations; establishing a committee to review previous Medal of Honor recipients and rescind those who did not meet standards codified into law; and, with § 704(a), prohibiting wearing, manufacturing, or selling a military medal without authorization. Congress passed the Stolen Valor Act after determining that preexisting steps were insufficient to prevent false claims. Given how little risk there is that the Act would
The Stolen Valor act survives breathing space review and is constitutional.
For the foregoing reasons, we REVERSE the district court's dismissal and REMAND for proceedings consistent with this opinion.
HOLMES, Circuit Judge, dissenting.
The Stolen Valor Act makes it a crime for a person to "falsely represent[] himself or herself, verbally or in writing, to have been awarded" any congressionally authorized military decoration or medal. 18 U.S.C. § 704(b). Offenders face up to six months in prison, a penalty that doubles to one year if the false representation concerns certain medals, including the Congressional Medal of Honor, the Silver Star, and the Purple Heart. See id. § 704(c), (d). On its face, the Act criminalizes the bare utterance of a false statement of fact. The majority holds that such statements—at least when made knowingly and with an intent to deceive—are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do. I would hold that the district court was correct in striking down the Act as unconstitutional. Therefore, on this basis, I must respectfully dissent.
In Part I, I summarize the relevant factual and procedural background. In Part II, I express my concerns regarding the majority's constitutional-avoidance analysis and discuss the Supreme Court's First Amendment jurisprudence, with a specific focus on the Court's recognition of certain categories of unprotected speech. I conclude that the Court has not held that false statements of fact (even those knowingly made with an intent to deceive) comprise a unitary category of unprotected speech, but rather has excepted from the First Amendment's protections only a discrete subset of false factual statements—that is, falsehoods that either cause, or pose a significant risk of causing, injury. The false statements proscribed by the Stolen Valor Act encompass much more and do not require injury or the risk of it.
In Part III, I review the common-law and statutory treatment of false statements of fact throughout our nation's history, including around the time that the First Amendment was adopted, and conclude that it supports my view that false statements of fact—absent injury or a significant risk of it—were not subject to legal sanction. In Part IV, I detail some of my specific concerns regarding the majority's analysis and in particular conclude that (1) the majority's so-called "breathing space" inquiry turns customary First Amendment analysis on its head, by obliging the speaker in the context of a content-based speech restriction, as here, to justify after the fact why his or her speech should not be regulated; and (2) despite the majority's contrary assertions, its breathing space analysis, in operation, is the kind of balancing test that the Supreme Court has condemned and is at odds with First Amendment values. In Part V, I detail why the Stolen Valor Act cannot be construed to target injurious falsehoods and, therefore, it cannot be held, at its core, to proscribe speech that falls within the ambit of a categorical exception to the First Amendment's protections. Finally, in Part VI, having concluded that the speech targeted by the Stolen Valor Act is protected by the First Amendment, I apply strict scrutiny to the Act because it is a content-based
Defendant-Appellee Rick Glen Strandlof is the founder of a veterans organization called the Colorado Veterans Alliance. In connection with his activities for the group, Mr. Strandlof used the alias "Captain Rick Duncan," and often spoke of his "military career." He claimed to have graduated from the Naval Academy, risen to the rank of captain in the United States Marine Corps, served three tours of duty in Iraq, and been injured by an improvised explosive device in Fallujah. For his purported sacrifice and service, Mr. Strandlof also claimed to have been awarded both the Purple Heart and the Silver Star.
Colleagues at the veterans group eventually became suspicious of Mr. Strandlof's claims. Following some basic inquiries, they were able to uncover that Mr. Strandlof had neither served in the military nor received the aforementioned medals. They subsequently reported his misrepresentations to the Federal Bureau of Investigation ("FBI"), which conferred with military officials to confirm that these claims were, in fact, fabrications. In an interview with FBI agents on May 13, 2009, Mr. Strandlof admitted to never serving in the military and to misrepresenting himself as a wounded veteran during his management of the Colorado Veterans Alliance. Subsequently, he was charged in a five-count information for violating the Stolen Valor Act, 18 U.S.C. § 704(b).
Id. The Act doubles the penalties where the claims pertain to certain specified medals, including the Purple Heart and the Silver Star. See id. § 704(d).
On December 2, 2009, Mr. Strandlof moved to dismiss the information, arguing that the Act is unconstitutional under the First Amendment. After entertaining a full round of briefing, the district court granted the motion to dismiss, finding the statute to be facially unconstitutional. United States v. Strandlof, 746 F.Supp.2d 1183, 1185 (D.Colo.2010). In so doing, the court rejected the government's contention that "admittedly false statements enjoy no First Amendment [protection] at all," finding it contrary to "well-established First Amendment doctrine." Id. at 1186. Relying on the Supreme Court's recent decision in United States v. Stevens, ___ U.S. ___, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), the district court reasoned that the broad category of "admittedly false statements" was not within the "limited universe of `well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.'" Id.
Finding that false statements of fact were not generally excluded from the First Amendment's protection and that the Act was a content-based regulation of speech, the district court then applied strict scrutiny and invalidated the Act. Id. at 1188-89. The court reasoned that, although the government asserted that the Act is "intended to preserve the symbolic significance of military medals," this was hardly a "sufficiently compelling [interest] to withstand First Amendment scrutiny," especially in light of the Supreme Court's jurisprudence regarding flag burning. Id. at 1189 (citing Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)). Moreover, the district court found that the government's claim that "[d]iluting the meaning or significance of [the] medals . . . could impact the motivation of soldiers to engage in valorous, and extremely dangerous, behavior on the battlefield" was "wholly unsubstantiated," "shocking, and indeed, unintentionally insulting to the profound sacrifices of military personnel the [Act] purports to honor." Id. at 1190 (first alteration in original) (quoting Gov't Resp. to Amicus Br. of Rutherford Inst. at 12 (Dist.Ct.Dkt.# 31-3)) (internal quotation marks omitted). It concluded, therefore, that because the government lacked a compelling interest sufficient to justify a content-based restriction on speech, the Act was unconstitutional.
There is little dispute that the Stolen Valor Act operates as a content-based restriction on speech. The Act punishes "false[] represent[ations]" of having received a military medal. 18 U.S.C. § 704(b). It therefore restricts speech based on its content and subject matter, Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980), and based on disapproval of "the message it conveys," Hill v. Colorado, 530 U.S. 703, 719, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)) (internal quotation marks omitted). This makes the Act "presumptively invalid, and the Government bears the burden to rebut that presumption." Stevens, 130 S.Ct. at 1584 (quoting United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 817, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)) (internal quotation marks omitted). Generally, this would require the government to show that the Act is necessary to achieve a compelling governmental interest and is narrowly tailored to that end. See Brown v. Entm't Merchs. Ass'n, ___ U.S. ___, 131 S.Ct. 2729, 2738, 180 L.Ed.2d 708 (2011).
Before addressing that question head-on, I feel obliged to confront the majority's attempt to narrow the scope of the Stolen Valor Act under the banner of constitutional avoidance. "The Supreme Court," says the majority, "requires we read an act of Congress narrowly, so as to avoid constitutional problems." Maj. Op. at 1154. While we are indeed under a duty to construe "ambiguous statutory language" so as "to avoid serious constitutional doubts," FCC v. Fox Television Stations, Inc., 556 U.S. 502, 129 S.Ct. 1800, 1811, 173 L.Ed.2d 738 (2009), we exercise that duty only when a statute is "readily susceptible" to a limiting construction, Stevens, 130 S.Ct. at 1592 (quoting Reno v. ACLU, 521 U.S. 844, 884, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)) (internal quotation marks omitted). We should not "rewrite a . . . law to conform it to constitutional requirements." Reno, 521 U.S. at 884-85, 117 S.Ct. 2329 (quoting Virginia v. Am. Booksellers Ass'n, Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988)) (internal quotation marks omitted).
The majority finds that the Stolen Valor Act is "limited in two important ways." Maj. Op. at 1154. First, it says that the statute "contains a scienter element, which operates to criminalize only knowingly false statements about receiving military awards." Id. at 1155. Despite the fact that the Act does not, on its face, require that a false statement be uttered knowingly, I am comfortable with this aspect of the majority's limiting construction. See Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994) (imposing a knowledge requirement on a criminal statute otherwise silent as to mens rea).
However, in the context of imposing this first limitation, the majority actually goes further. It effectively imposes an additional constraint on the scope of the statute by reading into § 704(b)'s reference to "false[] represent[ation]" a requirement that the speaker have a "specific intent to deceive." Maj. Op. at 1155. Whence this limitation? Certainly not the statutory text, which says not a word about intent (much less deception). Nor can it be said that knowledge and intent to deceive are conterminous mens-rea concepts. The Model Penal Code treats intent (what it calls "purpose") and knowledge as separate states of mind, see Model Penal Code § 2.02, as do many modern criminal codes, see Wayne R. LaFave, Substantive Criminal Law § 5.2 n.12 (2d ed.2003). Congress, too, recognizes the distinction. A number of federal false-statement statutes
Because Congress knows how to impose an intent requirement when it wants to, the majority's grafting of an intent-to-deceive element onto the Stolen Valor Act must be viewed as an exercise in revision, not interpretation. See Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S.Ct. 2705, 2717-18, 177 L.Ed.2d 355 (2010) (declining to construe a criminal statute, which already contained a knowledge requirement, to contain an additional intent element, even if doing so would have avoided a First Amendment problem). Thus, even though I am comfortable with the majority's claimed first limitation on the Act—imposing a knowledge requirement—I take exception to its attempt at the same time to map onto the statute a distinct mens-rea element of intent to deceive.
All this might go unmentioned, except that the majority's novel addition to the statute does some heavy lifting, supporting what the majority calls its second (in reality, the third) limitation on the Act relating to "any satirical, rhetorical, theatrical, literary, ironic, or hyperbolic statements," which the majority says "qualify as protected speech." Maj. Op. at 1155. Specifically, the majority posits: "The Act's requirement that false statements be made with an intent to deceive . . . would not allow the government to prosecute individuals for making ironic or other artistically or politically motivated statements." Id. Even assuming, arguendo, that the Act contains a "requirement" that the speaker have an intent to deceive, this conclusion does not logically follow.
Intentionally deceptive falsehoods and "ironic, dramatic, diplomatic, and otherwise polite speech," id., are not the mutually exclusive categories that the majority conceives them to be. After all, the little white lie and the children's fairy tale (think Santa Claus) are designed to deceive. Artistic expression, too, may employ intentional deception. Consider an uplifting example: Parson Weems's tall tale about young George Washington's refusal to tell a tall tale. See M.L. Weems, The Life of George Washington 13-14 (Phila., Joseph Allen 1833). The biographical anecdote, in which the young Washington allegedly confessed to taking a hatchet to the family's cherry tree because he "c[ould]n't tell a lie," see id. at 14, is by all accounts a falsehood, despite Weems's insistence that it was "too true to be doubted," id. at 13.
The point here is simple: Some intentional deceptions may indeed be tools for expressing the "ironic," the "artistic[]," the "politically motivated," the "dramatic," and the "polite." See Maj. Op. at 1155. In other words, intentionally deceptive speech and such matters are not mutually exclusive. I am not convinced, then, that
Notwithstanding my concerns regarding the majority's constitutional-avoidance analysis, I have evaluated the First Amendment validity of the Stolen Valor Act with the majority's limiting interpretation in mind. Alas, even assuming that the majority's interpretation is permissible, in my view, the Act does not pass constitutional muster. In sum, I believe that the speech targeted by the Act does not fall within a historically unprotected category and the Act does not survive strict scrutiny.
While the Supreme Court and individual Justices have often undertaken to enumerate the categories of unprotected speech, constructing a canon would be a difficult task. The lists that appear in the Court's opinions are incomplete and do not employ a common vocabulary.
My colleagues in the majority nevertheless believe that false statements of fact—at least when knowingly made, with an intent to deceive—are part of the canon of unprotected speech because the Supreme Court has repeatedly recognized that "there is no constitutional value in false statements of fact." Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). To be sure, a
First, the Court's pronouncements concerning false statements have come in the context of more narrow types of false statements, such as defamation and other speech torts, see, e.g., Falwell, 485 U.S. at 52, 108 S.Ct. 876; fraud, see Telemarketing Assocs., 538 U.S. at 612, 123 S.Ct. 1829; and false commercial speech, see Va. State Bd. of Pharmacy, 425 U.S. at 771, 96 S.Ct. 1817. Second, and relatedly, despite the Court's repeated dicta concerning false statements, it has never read its own precedent as establishing a unitary, all-encompassing category of false statements that are excepted from the First Amendment's protections. Rather, the Court has focused on false statements as they arise in discrete legal contexts. For example, Stevens, one of the most recent cases providing a list of unprotected speech, enumerates "defamation" and "fraud" separately and cites different cases for each. See 130 S.Ct. at 1584. Other lists often include defamation or libel specifically, but no other type of false statement. See supra note 6. If it is the false factual statement generally that is unprotected, then it is surely puzzling not only that the Court has never said so over the past four decades, but also that it has repeatedly taken pains to enumerate particular types of false factual statements rather than advert to a unitary unprotected category—false factual statements. See Nike, Inc. v. Kasky, 539 U.S. 654, 664, 123 S.Ct. 2554, 156 L.Ed.2d 580 (2003) (Stevens, J., concurring in dismissal of writ of certiorari as improvidently granted) (noting that the Court's dicta concerning false statements are "perhaps overbroad[]").
If there is a common feature that binds together the types of false statements enumerated in the Supreme Court's past lists, it is something more than mere falsehood. As the Court has reminded us often, bare falsity is not enough to strip a statement of constitutional protection. See Curtis Pub. Co. v. Butts, 388 U.S. 130, 152, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion) ("While the truth of the underlying facts might be said to mark the line between publications which are of significant social value and those which might be suppressed without serious social harm. . ., we have rejected . . . the argument that a finding of falsity alone should strip protections from the publisher."); Time, Inc. v. Hill, 385 U.S. 374, 387, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) ("Factual error . . . [is] insufficient for an award of damages for false statements. . . ."); New York Times Co. v. Sullivan, 376 U.S. 254, 273, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ("[F]actual error . . . [does not] suffice[] to remove the constitutional shield. . . ."); see also Sullivan, 376 U.S. at 271, 84 S.Ct. 710 ("[C]onstitutional protection does not turn upon the truth. . . ." (quoting NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)) (internal quotation marks omitted)). Justice Roberts put it most eloquently in Cantwell v. Connecticut:
310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (Roberts, J.) (emphasis added).
If falsity alone is insufficient to "remove the constitutional shield," Sullivan, 376 U.S. at 273, 84 S.Ct. 710, something more is required. While the Court has never explicitly said what that "something" is, one variable stands out as having significant explanatory power: the presence of, or a significant risk of, injury, be it to an individual or to the processes of government. Without exception, the false statements at issue in the Court's cases have been those that involve an actual distinct harm or a significant risk of it, the prevention of which is a constitutionally cognizable governmental interest. See Telemarketing Assocs., 538 U.S. at 612, 123 S.Ct. 1829 (stating that "the First Amendment does not shield fraud" because "the government's power to protect people against fraud has always been recognized in this country and is firmly established" (quoting Donaldson v. Read Magazine, Inc., 333 U.S. 178, 190, 68 S.Ct. 591, 92 L.Ed. 628 (1948)) (internal quotation marks omitted)); Gertz, 418 U.S. at 341, 94 S.Ct. 2997 ("The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood.").
Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919) (Holmes, J.); see also Garrison, 379 U.S. at 70, 85 S.Ct. 209 (holding that Louisiana's criminal libel law was not "narrowly drawn" because it did not require a finding of "clear and present danger" and was not limited "to speech calculated to cause breaches of the peace"); Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766 (describing the categories of unprotected speech as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace"). Thus, if there is an unprotected category to be divined from the Court's jurisprudence, it is comprised of a discrete subset of false factual statements—that is, the injurious falsehood.
The conclusion that I derive from this survey of the Supreme Court's false-statement jurisprudence is consistent with the guideposts that the Court has articulated for discerning categories of unprotected speech. Specifically, the teaching of Stevens and the Court's earlier related cases is that, ordinarily for speech to be categorically excepted from the protections of the First Amendment, it generally must be "historically unprotected." Stevens, 130 S.Ct. at 1586 (emphasis added); see also R.A.V., 505 U.S. at 383, 112 S.Ct. 2538 (referring to the categories as "traditional limitations"); Simon & Schuster, 502 U.S. at 127, 112 S.Ct. 501 (Kennedy, J., concurring in the judgment) (calling them "historic and traditional categories long familiar to the bar").
Historically and at common law, lying, without more, was not considered a criminal offense. See 4 William Blackstone, Commentaries *41-42 ("The vice of lying, which consists (abstractedly taken) in a criminal violation of the truth, and therefore in any shape is derogatory from found morality, is not however taken notice of by our law, unless it carries with it some public inconvenience, as spreading false news; or some social injury, as slander
Spreading false news was also a crime at common law. 4 Blackstone, supra, at *149. The American colonies had laws to this effect, punishing any person "who shall wittingly and willingly make or publish any lie which may be pernicious to the common weal." Larry D. Eldridge, Before
In civil actions, liability also could not be founded on a false statement unless it caused the plaintiff injury. Thus, for civil fraud, "[a] mere naked lie—a falsehood—though told with intent to deceive, upon which nobody acts, and by which nobody is deceived, is not actionable." Town of Enfield v. Colburn, 63 N.H. 218, 1884 WL 3547, at *2 (1884); Irwin v. Sherril, 1 N.C. (Tay.) 99, 1799 WL 112, at *2 (N.C.Super. Ct.L. & Eq. 1799) ("So it is for telling a bare, naked lie, the truth or falsehood of which were alike unknown to the defendant; no action is maintainable; but where it is uttered by a person who, at the time, knew its falsehood, and a loss afterwards ensues to the plaintiff in consequence of it, an action will lie.").
Several federal statutes in place at or around the time that the First Amendment came into force penalized false statements. The types of false statements penalized were few, but none is surprising. They are the types that continue to be subject to sanction today, without constitutional objection: perjury and false statements knowingly made to a government agency or concerning a matter within an agency's jurisdiction. These statements injure, or perhaps more often pose a significant risk of injuring, governmental processes.
There was the proscription and punishment of perjury. See An Act for the Punishment of certain Crimes against the United States, § 18, 1 Stat. 112, 116 (1790) (prescribing imprisonment and fines for "any person [who] shall wilfully and corruptly commit perjury . . . on his or her oath or affirmation in any suit, controversy, matter or cause depending in any of the courts of the United States"). Relatedly, a 1798 federal statute authorized congressional officeholders to "administer oaths or affirmations to witnesses, in any case under their examination" and punished "any person [who] shall wilfully, absolutely and falsely swear or affirm, touching any matter or thing material to the point in question, whereto he or she shall be thus examined." An Act to authorize certain Officers and other persons to administer oaths, §§ 1-2, 1 Stat. 554, 554 (1798).
False statements to the government were also subject to legal sanction. Some laws required a person to swear or affirm regarding a matter bearing on some area of federal regulation and criminalized the giving of a false oath or affirmation. See, e.g., An Act for the relief of persons imprisoned for Debt, § 3, 1 Stat. 482, 482 (1796) (prescribing criminal penalties for a bankrupt debtor's swearing falsely with respect to his property); An Act concerning certain Fisheries of the United States,
There was a third type of false statement punished in the early years of the Republic, embodied in the infamous Sedition Act of 1798. Criminal penalties were prescribed for "any person [who] shall write, print, utter or publish . . . any false, scandalous and malicious writing . . . against the government of the United States, . . . with intent to defame the said government." Sedition Act, § 2, 1 Stat. 596, 596 (1798). The Act expired by its terms in early 1801, id. § 4, 1 Stat. at 597, and the question of its constitutionality never reached the Supreme Court. However, it was roundly condemned at the time as violating the First Amendment, and that opinion "has carried the day in the court of history." Sullivan, 376 U.S. at 275-76, 84 S.Ct. 710.
The historical record regarding false-statement liability reveals a caution and prudence in subjecting false statements to legal sanction. The "naked lie," though morally objectionable, was not legally punishable, and a false statement did not incur liability unless it occasioned some injury, whether private or public. See 4 Blackstone, supra, at *41-42. The early federal proscriptions on perjury and false statements to the government are consistent with a concern about public injury. Thus, if the historical record reveals any false-statement category long subject to regulation, it is, at a minimum, the injurious falsehood—that is, a false statement of fact that causes, or poses a significant risk of causing, harm.
The focus in our legal tradition on the injurious falsehood is entirely consistent with the Supreme Court's false-statement jurisprudence. What the historical record demonstrates is that there is no unitary, all-encompassing false-statement-of-fact category that has been long subject to unobjected-to restriction. To the contrary, in the American tradition, the "naked lie"—i.e., the unadorned falsehood—is not subject to legal sanction.
Our legal tradition's view of false-statement liability—a narrow one that is restricted to the injurious falsehood—deserves great weight in our constitutional analysis, not only because Stevens so instructs
In the first place, as the Supreme Court has repeatedly recognized, false statements are "inevitable in free debate." Hartlage, 456 U.S. at 60-61, 102 S.Ct. 1523 (quoting Sullivan, 376 U.S. at 271-72, 84 S.Ct. 710) (internal quotation marks omitted); Gertz, 418 U.S. at 340, 94 S.Ct. 2997; Time, Inc. v. Hill, 385 U.S. at 388, 87 S.Ct. 534; see also Cantwell, 310 U.S. at 310, 60 S.Ct. 900. Relatedly, disentangling the false from the true is often a task fraught with problems. Time, Inc. v. Pape, 401 U.S. at 286, 91 S.Ct. 633 ("The question of the `truth' . . . presents rather complicated problems."); Sullivan, 376 U.S. at 271, 84 S.Ct. 710 ("Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth. . . ."). As Justice Jackson noted well,
Thomas v. Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (Jackson, J., concurring). Indeed, the notion that the marketplace of ideas provides a proving ground for truth necessarily assumes that error is part of the process. Sullivan, 376 U.S. at 279 n. 19, 84 S.Ct. 710 ("Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about `the clearer perception and livelier impression of truth, produced by its collision with error.'" (quoting John Stuart Mill, On Liberty 15 (Oxford, Blackwell 1947))); see also Dun & Bradstreet, Inc. v. C.R. Grove, 404 U.S. 898, 900, 92 S.Ct. 204, 30 L.Ed.2d 175 (1971) (Douglas, J., dissenting from the denial of a writ of certiorari) ("[E]ven false statements perform an important function. Whether intentional, whether false, all opinions and allegations in this forensic community are catalytic elements which tend to cause us to react, to rethink, and to reply." (emphases added)).
Second, false statements are not all of a piece. They run the gamut from harmful, to benign, to salutary. See United States v. Alvarez, 638 F.3d 666, 674-75 (9th Cir. 2011) (Kozinski, C.J., concurring in the denial of rehearing en banc). In that sense, they are precisely like every other form of speech—biography, opinion column, academic article, or box-office hit, to name a few—that presumptively enjoys constitutional protection. See Stevens, 130 S.Ct. at 1591 ("Most of what we say to one another lacks religious, political, scientific, educational, journalistic, historical, or artistic value (let alone serious value), but it is still sheltered from government regulation." (emphasis omitted) (internal quotation marks omitted)). If "(w)holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," Cohen, 403 U.S. at 25, 91 S.Ct. 1780 (alteration in original) (quoting Winters v. New York, 333 U.S. 507, 528, 68 S.Ct. 665, 92 L.Ed. 840 (1948) (Frankfurter, J., dissenting)), then surely the little white lies (even those knowingly told and designed to deceive) that season
Thus, I am troubled by the majority's conclusion that false statements of fact—even those that are knowingly made, with an intent to deceive—are categorically outside the protective walls of the First Amendment and are given shelter only as a means to some other end, namely, protecting other "speech that matters." According to the majority, this so-called "breathing space" analysis is well-grounded in Supreme Court precedent. Maj. Op. at 1159 ("Thus, the Supreme Court has expressly stated that, although laws punishing false statements must afford adequate breathing space to protected speech, knowingly false factual statements are not intrinsically protected under the First Amendment."). I beg to differ. The majority's analysis rests on little more than statements from the Court's opinions that are selectively quoted and used out of context. At bottom, as the Ninth Circuit put it, "we [should] not [be] eager to extend. . . statement[s] (often quoted, but often qualified) made in the complicated area of defamation jurisprudence into a new context in order to justify an unprecedented and vast exception to First Amendment guarantees." United States v. Alvarez, 617 F.3d 1198, 1208 (9th Cir.2010).
It is true, of course, that what the Court has said in dicta is entitled to great weight and binds us "almost as firmly as . . . the Court's outright holdings." United States v. Langford, 641 F.3d 1195, 1198 n. 2 (10th Cir.2011) (quoting United States v. Serawop, 505 F.3d 1112, 1122 (10th Cir.2007)) (internal quotation marks omitted). That does not, however, negate our obligation to investigate and determine what the Court has actually said. In this vein, the Court has cautioned us that dicta in its First Amendment jurisprudence should be taken "in context." See R.A.V., 505 U.S. at 383, 112 S.Ct. 2538. It has also warned against simplistic reliance on statements found in its past opinions. See Garrison, 379 U.S. at 67 n. 3, 85 S.Ct. 209. Finally, let us be honest: Nothing in the Supreme Court's First Amendment jurisprudence affirmatively controls this case. Our judicial task, then, consists of more than quote mining. Establishing for the first time a new category of unprotected speech, as the majority does, for knowingly false statements of fact—something the Supreme Court has never done—must hang on more than the slender thread that the majority supplies.
So it is worthwhile, I think, to step back and consider the consequences of the majority's decision. Henceforth, every falsehood—no matter where uttered, no matter how inconsequential—may be regulated, even criminally punished, so long as it is knowingly made, with an intent to deceive. The government need not come forward with any compelling purpose, much less a means narrowly tailored to achieve it. The awesome breadth of this censorial power is staggering. The slightest mendacity—"I'm busy tonight," "I don't have cash on me," "I used to walk to school, uphill, through three feet of snow"—may now be subject to criminal sanction unchecked by the First Amendment, unless after the fact the speaker can demonstrate that protecting his utterance is somehow necessary to protect other "speech that matters," or unless his speech falls into the majority's vaguely defined safe harbor because it is ironic, rhetorical, artistic and the like. This is strange terrain for the First Amendment.
To begin with, the majority turns customary First Amendment analysis on its head. It is rudimentary, so I had thought, that content-based speech restrictions are
Second, the majority's holding invites precisely the sort of balancing test that earned the Court's stern rebuke in Stevens. The notion that the government may regulate an entire category of speech unless speakers can demonstrate, to a court's satisfaction, that the speech is of sufficient social importance is anathema to our First Amendment tradition.
I recognize, of course, that the Supreme Court has often described protection for false statements as being justified by the need to protect "speech that matters." See Gertz, 418 U.S. at 341, 94 S.Ct. 2997. "But such descriptions are just that—descriptive." Stevens, 130 S.Ct. at 1586.
Id. Gertz—the source of the "speech that matters" language—was concerned with a defamatory falsehood, and I have no doubt that that sort of falsehood, due to the injury it occasions, is categorically outside of the First Amendment's heightened protections. However, the majority attempts through its breathing space analysis to extend Gertz outside of the context of injurious falsehoods, like defamation, and that is where its analysis falters.
The constitutional infirmity of such after-the-fact burden-shifting is highlighted in two Supreme Court decisions. See Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 123 S.Ct. 1829, 155 L.Ed.2d 793 (2003); Riley v. Nat'l Federation of the Blind of N.C., Inc., 487 U.S. 781, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). In Riley, the Court confronted a state law prohibiting professional fundraisers, who were engaged in charitable solicitation, from retaining an "unreasonable" fee. 487 U.S. at 784, 108 S.Ct. 2667. Fees exceeding thirty-five percent were deemed unreasonable unless the fundraiser could show on a case-by-case basis either that the solicitation involved advocacy or information dissemination, or that, absent the higher fee, the charity's ability to raise money or communicate would be significantly diminished. Id. at 785-86, 108 S.Ct. 2667. The law's purpose was fraud prevention, and while the Court recognized the State's substantial interest therein, it struck down the law as not narrowly tailored to that end. See id. at 792-93, 108 S.Ct. 2667.
The Court's first conclusion was that a percentage-based fee measure lacked a sufficient nexus to the potential for fraud. See id. at 793, 108 S.Ct. 2667. But, significantly for our purposes, the law "suffer[ed] from a more fundamental flaw." Id. It "require[d] the speaker to prove `reasonableness' case by case based upon what is at best a loose inference that the fee might be too high." Id. (emphasis added). The fundraiser bore the burden in each case to rebut the presumption of unreasonableness. Id. Furthermore, even if the fundraiser could show that its solicitation involved advocacy or the dissemination of information, that was not alone sufficient; it was "merely a factor that is added to the calculus submitted to the factfinder, who may still decide that the costs incurred or the fundraiser's profit were excessive." Id. The Court was not comforted, moreover, by the government's assurance that standards for determining reasonable fundraising fees would be "judicially defined over the years." Id. (citation omitted) (internal quotation marks omitted). "Speakers," the Court said, "cannot be made to wait for `years' before being able
Id. at 794, 108 S.Ct. 2667 (emphasis added).
Riley's lesson was reiterated in Telemarketing Associates, which involved a civil fraud action by the State of Illinois against certain fundraising organizations. The State's complaint was brought pursuant to Illinois's common law of fraud, under which, as the Court noted, "[f]alse statement alone" was insufficient for liability. 538 U.S. at 620, 123 S.Ct. 1829. Rather, the State was required to establish by clear and convincing evidence that a factual representation was knowingly false, was made "with the intent to mislead the listener," and was successful in doing so (i.e., caused some injury). Id. These "[e]xacting proof requirements . . . provide[d] sufficient breathing room" for the First Amendment, the Court found, and it upheld the complaint as "properly tailored" to the State's interest in protecting the public from fraud. Id. Significantly, the Court's opinion contained the following discussion:
Id. at 620 n. 9, 123 S.Ct. 1829 (emphasis added) (citations omitted).
If the First Amendment places the burden on the government and bars case-by-case balancing in an action for civil fraud, then a fortiori the First Amendment should operate in the same manner in a criminal action based upon a false statement of fact (even one knowingly made with an intent to deceive)—after all, in the latter type of action, significant social stigma and possibly liberty itself is at stake. See Reno, 521 U.S. at 872, 117 S.Ct. 2329 (stating that criminal penalties "pose[] greater First Amendment concerns" than civil regulations because "[i]n addition to the opprobrium and stigma of a criminal conviction, . . . [t]he severity of criminal sanctions may well cause speakers to remain silent rather than communicate"). On this basis, I conclude that the majority's breathing space review is actually a condemned balancing test by another name and, as such, ill-conceived.
Based on the above review of the Supreme Court's jurisprudence and the historical record, I conclude that the Stolen Valor Act may not be read as targeting speech that is categorically excepted from the First Amendment's rigorous protections, unless it may be said that it targets injurious falsehoods—injurious either to one or more individuals or to governmental processes. Because I do not believe that it is susceptible to such a reading, I conclude that the Stolen Valor Act criminalizes protected speech and, because it is content-based, it is subject to strict scrutiny.
The most glaring problem with the Stolen Valor Act is the absence of a nexus between the proscribed "false[] represent[ation]" and any resulting injury. For three reasons, the Act is not an injurious-falsehood regulation: (1) By its terms, the Act does not require a showing that a defendant's false statement of fact caused a particular injury (i.e., it does not contain an injury or harm element); (2) the Act plainly is not designed in a manner that is calculated to target any form of indirect injury; and (3) the government's claim that the false claims that the Act proscribes inflict a generalized harm on the "reputation and meaning" of military awards is unpersuasive, notably because those claims are not sufficiently analogous to the kinds of speech that have been permissibly proscribed, without a particularized showing of harm.
The sum and substance of the Stolen Valor Act is this: "Whoever falsely represents himself . . . to have been awarded any [military] decoration or medal authorized by Congress . . . shall be fined . . ., imprisoned . . ., or both." 18 U.S.C. § 704(b). That language, on its face, does not require any demonstration that a defendant's false statement concerning military medals or awards caused a specific injury. For example, the Act does not require a particularized showing of direct injury—i.e., proof of some nexus between a defendant's false claim and the resulting diminution of the "reputation" and symbolic meaning of military awards. Nor does the Act oblige the government to establish that a defendant caused another person to detrimentally rely on his false statement (such as by voting for a defendant or donating to his cause)—i.e., to demonstrate an indirect harm. Consequently, even under the majority's limiting construction (i.e., a mens rea of knowingly with intent to deceive), the Act still covers falsehoods that are patently harmless, such as Grandpa's puffed-up
The Act plainly is not designed in a manner that is calculated to regulate an indirectly injurious falsehood. Apart from the lack of any facial requirement of indirect injury, the Act is not limited to situations in which a significant risk of such an injury is evident. An example by comparison may illustrate.
18 U.S.C. § 2074 makes it a crime to "knowingly issue[] or publish[] any counterfeit weather forecast or warning of weather conditions falsely representing such forecast or warning to have been issued or published by the Weather Bureau, United States Signal Service, or other branch of the Government service." While this statute does not on its face require a nexus between a false weather report and a resulting indirect injury, the statute's aim is evident: to prevent unscrupulous prevaricators both from inciting public panic through false warnings of inclement weather and from lulling the public into a false sense of security through deceptive assurances of sunny skies. Criminal punishment also seems particularly appropriate in this context because attempts to combat false weather reports may be ineffective (indeed, they may only sow confusion) and truthful reports may not arrive in time to undo damage already done. Notably, too, § 2074 contains limitations. In addition to a "counterfeit" forecast of weather conditions, the statute requires that the forecast be "issue[d] or publishe[d]" and that it falsely bear the government's endorsement.
The Stolen Valor Act is insufficiently analogous to this kind of statute. False claims of military honor—even when knowingly made, with an intent to deceive—do not risk any imminent "breach of the peace," such as a public panic. Cf. Chaplinsky, 315 U.S. at 572, 62 S.Ct. 766 (characterizing unprotected speech as that which "tend[s] to incite an immediate breach of the peace"); Schenck, 249 U.S. at 52, 39 S.Ct. 247 ("The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."). And the Act is not limited to situations in which the risk of detrimental reliance is palpable, such as false claims at a fundraising event or in the context of charitable solicitations. Cf. Telemarketing Assocs., 538 U.S. at 612, 123 S.Ct. 1829 ("[F]raudulent charitable solicitation is unprotected speech.").
Rejecting the notion that statutes proscribing false statements must contain a harm element that must be proved in every case, the government contends that the false claims of military honor addressed by the Stolen Valor Act inflict a generalized harm and, more specifically, that "the cumulative effect of false claims undermines the reputation and meaning of the awards." Aplt. Opening Br. at 21. In this regard, the government identifies obscenity and perjury as categories of speech that have been permissibly proscribed, though they do not "involve individualized harms." Id. at 19. For the reasons that follow, however, I believe that the government's arguments are unpersuasive.
First, as to the notion of generalized harm based on the purported cumulative effect of false claims, as previously noted, there is nothing in the Act's text that limits its application to situations in which there is a significant risk of damage to the reputation and meaning of awards. The Act requires only that false statements concerning military awards be made. Thus, it is far from clear that there would
Furthermore, the government's reliance on the example of obscenity is unavailing. Specifically, the government asserts that the kind of harm caused by false claims related to military honors, "like the harm caused by obscenity, is difficult to prove in an individual case," thus "Congress may rely on the commonsense judgment that such speech is, in general, harmful." Id. at 20. However, the analogy to obscenity is old hat. Government officials frequently invoke this analogy to justify speech restrictions, and the Supreme Court regularly rebukes it. See, e.g., Brown, 131 S.Ct. at 2734 ("Stevens was not the first time we have encountered and rejected a State's attempt to shoehorn speech about violence into obscenity.").
More to the point, the historical record—which provides a recognized, valuable guidepost in discerning categories of protected and unprotected speech, see Stevens, 130 S.Ct. at 1584—makes the government's analogy inapposite. Obscenity may be targeted without a particularized showing of harm because of our nation's long-standing restrictions on obscene speech. See Roth v. United States, 354 U.S. 476, 482-84, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (reviewing obscenity laws pre- and post-dating adoption of the First Amendment and concluding that "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance"); see also Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61-62 & n. 12, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). For First Amendment purposes, then, the relevant historical category that is lacking in protection is obscenity itself, not injurious obscenity. False-statement regulation, by contrast, has a different historical pedigree. The "naked lie" traditionally was not sanctionable, and legal consequences attached only if a false statement caused a particularized injury, or posed a significant risk of causing one. Thus, the relevant historical category that is lacking protection in this context is not false statements themselves, but rather only injurious false statements. In other words, particularized harm (or a significant risk of it) is part of the equation in the false-statement context, and not in the obscenity context, because history dictates that result. The government's attempt to elide the distinction is unpersuasive.
The government's reliance on the example of perjury serves it no better. It is true that perjury does not involve, or does not exclusively involve, an identifiable victim. As noted, when a perjurous statement is uttered, not only the processes, but also the integrity of the judicial system is thought to be harmed. Holland, 22 F.3d at 1047 ("Perjury, regardless of the setting, is a serious offense that results in incalculable harm to the functioning and integrity of the legal system as well as to private individuals."). But an analogy to perjury statutes cannot support the Stolen Valor Act either.
The proscription of perjurous statements is limited to a very specific setting—testimony under oath in judicial or other legal proceedings, where the ascertainment of truth is critical to the administration of justice. See In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 90 L.Ed. 30 (1945) ("All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial."). Moreover, liability for perjury requires that the falsely asserted fact relate to a material matter. See 18 U.S.C. § 1621(1); Model Penal Code § 241.1; 4 Blackstone,
In sum, the Stolen Valor Act does not adequately train its gaze on the injurious falsehood. The Act's simple and expansive wording ensures that a false representation—no matter how trivial it is—is punishable, without a showing of injury, or a significant risk of it. More specifically, the Act does not require a showing that a defendant's false statement of fact caused a particular injury; it is not designed in a manner that is calculated to target any form of indirect injury; and the government's argument that the false claims that the Act criminalizes inflict a generalized harm on the "reputation and meaning" of military awards is unpersuasive.
Because in my view the Stolen Valor Act does not benefit from a categorical exception to the First Amendment, it seeks to regulate protected speech. Moreover, because the Act punishes "false[] represent[ations]" of having received a military medal, it restricts speech based on its content and subject matter, see Consol. Edison, 447 U.S. at 536, 100 S.Ct. 2326, and based on disapproval of "the message it conveys," Hill, 530 U.S. at 719, 120 S.Ct. 2480 (quoting Ward, 491 U.S. at 791, 109 S.Ct. 2746) (internal quotation marks omitted). Accordingly, the Act must be subjected to strict scrutiny. See Brown, 131 S.Ct. at 2738.
To weather this exacting standard, the Act must be "justified by a compelling government interest" and be "narrowly drawn to serve that interest." Id. (citing R.A.V., 505 U.S. at 395, 112 S.Ct. 2538). In addition, the Act must be "actually necessary" to achieving the government's objectives. Id.; see R.A.V., 505 U.S. at 395, 112 S.Ct. 2538. It must be, in other words, the "least restrictive means to further the articulated interest." Sable Commc'ns of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). The presence of an adequate, less speech-restrictive alternative will render the Act constitutionally dubious, "casting considerable doubt on the government's protestations that the asserted justification is in fact an accurate description of the purpose and effect of the law." R.A.V., 505 U.S. at 395, 112 S.Ct. 2538 (quoting Burson v. Freeman, 504 U.S. 191, 213, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992)) (internal
It is axiomatic that we may affirm a district court's judgment on any ground supported by the record. See United States v. Sandia, 188 F.3d 1215, 1217 (10th Cir.1999) ("[W]e are free to affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court." (alteration in original) (quoting Medina v. City & Cnty. of Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992)) (internal quotation marks omitted)); see also EEOC v. C.R. England, Inc., 644 F.3d 1028, 1043 n. 14 (10th Cir. 2011) ("[W]e ultimately affirm on an alternate ground supported by the record."). Unlike the district court, I would not definitively opine on whether the Stolen Valor Act seeks to vindicate compelling governmental interests because under my view, even assuming that it does, the government cannot prevail. I would conclude that the Act is neither narrowly tailored to the asserted interests nor necessary to achieve them. Accordingly, I would find the Act unconstitutional and would affirm the district court's dismissal of the information against Mr. Strandlof.
The long-form title of the Stolen Valor Act and the accompanying congressional findings offer insight into the Act's purpose. It is entitled, in full, "An Act [t]o amend title 18, United States Code, to enhance protections relating to the reputation and meaning of the Medal of Honor and other military decorations and awards, and for other purposes." See Pub.L. No. 109-437, 120 Stat. 3266, 3266 (2006). Section 2 of the Act contains the findings of Congress, including that "[f]raudulent claims surrounding the receipt of [military decorations and medals] . . . damage the reputation and meaning of such decorations and medals" and that "[l]egislative action is necessary to permit law enforcement officers to protect the reputation and meaning of military decorations and medals." Id. § 2.
In its briefs, the government offers two justifications for the Act. Echoing Congress's findings, it states first that "[t]he government has an important interest in protecting the reputation and value of military honors." Aplt. Opening Br. at 22. In this vein, it notes that "the government's ability to bestow public honor on an extraordinary few is undermined if, because of a multitude of imposters and false claims, people come to doubt that anyone's claims are true" and that "the government's expressions of gratitude to a distinguished few by means of a medal may appear insincere if the government does nothing to prevent liars and fraudsters from stealing the honor that belongs exclusively to the true recipients of the award." Id. Second, we are told that Congress has an "interest in protecting the public from being deceived by imposters seeking to take advantage of the respect and credibility that military awards confer." Aplt. Reply Br. at 17; see also Aplt. Opening Br. at 24 ("Congress also has an interest in protecting the public from the attempts of military imposters to misappropriate the benefits and privileges of having received a military honor.").
The government's first claimed interest is in protecting the reputation and status of military decorations—specifically, as symbols of honor, public esteem, and military merit, the reserve of a "distinguished few" who have risked and often sacrificed their lives on the nation's behalf. See Aplt. Opening Br. at 22. Assuming, arguendo, that this interest is a compelling one,
Content-based restrictions on speech must be the "least restrictive means" available to the government. Sable Commc'ns, 492 U.S. at 126, 109 S.Ct. 2829. "If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." Playboy Entm't, 529 U.S. at 813, 120 S.Ct. 1878. Mr. Strandlof posits that such an alternative
I find Mr. Strandlof's argument to be persuasive. The Supreme Court has often told us that "more speech, not enforced silence" is the "preferred First Amendment remedy." Hartlage, 456 U.S. at 61, 102 S.Ct. 1523 (quoting Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)) (internal quotation marks omitted); see also Johnson, 491 U.S. at 419, 109 S.Ct. 2533 ("If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." (quoting Whitney, 274 U.S. at 377, 47 S.Ct. 641 (Brandeis, J., concurring)) (internal quotation marks omitted)).
In fact, there is a robust and nationwide grassroots effort aimed at rooting out imposters like Mr. Strandlof. See Amy Chozick, Veterans' Web Sites Expose Pseudo Heroes, Phony Honors, Wall St. J., May 6, 2005, at B1. For example, the website POWnetwork.org maintains an extensive list of individuals making false claims of military service and decoration. P.O.W. Network's Phonies Index, P.O.W. Network, http://pownetwork.org/phonies/ list_of_names.htm (last visited Jan. 6, 2012). More notable perhaps is the "Hall of Valor," a website maintained by Vietnam veteran Doug Sterner. Hall of Valor, Military Times Hall of Valor, http://www. militarytimes.com/citations-medals-awards/ (last visited Jan. 6, 2012). The American veterans' organization, AMVETS, calls the site "the most comprehensive database of military valor award citations available." See The Case for HR 666: The Military Valor Roll of Honor Act, Report StolenValor.org, http://www.reportstolenvalor.org (last visited Jan. 6, 2012).
"When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals." Playboy Entm't, 529 U.S. at 816, 120 S.Ct. 1878. The government, in my view, has not carried its burden here. It first asserts that, "[a]s reflected in Congress's finding in
The government also suggests that a government database of award recipients would be inadequate because database records might be unclear and imposters may do significant harm before their lies are exposed. See Aplt. Opening Br. at 31. However, this argument says nothing about whether the publication of lists of true award recipients would be equally as effective as (and perhaps even more effective than) criminal sanctions at deterring false claims, or nipping them in the bud when they appear. Indeed, the government merely muses that "it is not at all clear that such a database would be as effective as criminal penalties in preventing false claims." Aplt. Reply Br. at 18 n.8. However, the government carries the burden of proof on the least-restrictive-means inquiry and such empty musings—which, at most, suggest the possibility that a database would not be as effective as criminal sanctions—are not sufficient to carry its burden. Without more, and particularly in light of the growing universe of online military-award lists, I am not persuaded that "more speech" is not an adequate alternative to achieve the government's interest in preserving the reputation and meaning of military honors.
I would stress the narrowness of this conclusion. Congress might very well determine that the proposed database alternative is an inadequate remedy to what Judge Bybee has termed the "epidemic" of military imposters, Alvarez, 617 F.3d at 1239 (Bybee, J., dissenting), and that a criminal penalty is in fact necessary to combat false claims and preserve the reputation and status of military awards. Those judgments would be entitled to considerable weight by the courts, see Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195-96, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997), particularly in light of Congress's traditionally broad legislative authority over military affairs, see United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ("The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.").
The government also asserts an interest in "protecting the public from being deceived by imposters seeking to take advantage of the respect and credibility that military awards confer." Aplt. Reply Br. at 17. To the extent that the government is articulating an interest in combating fraud—for example, preventing a defendant from deriving a distinct material benefit, or from perpetrating through reliance a distinct harm, by his false claim—this is plainly an interest that would justify a criminal penalty, as the history and continued existence of criminal fraud laws suggests. See Telemarketing Assocs., 538 U.S. at 612-13, 123 S.Ct. 1829 (stating that "fraud[] . . . is unprotected speech," that "fraud prevention ranks as a substantial governmental interest," and that "[f]rauds. . . may be denounced as offenses and punished by law" (alteration omitted) (quoting Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 636, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), and Schneider v. Town of Irvington, 308 U.S. 147, 164, 60 S.Ct. 146, 84 L.Ed. 155 (1939)) (internal quotation marks omitted)); Donaldson, 333 U.S. at 190, 68 S.Ct. 591 (the government's power "to protect people against fraud" has "always been recognized in this country and is firmly established").
In part, the Stolen Valor Act seems to have been enacted with fraud in view. See 151 Cong. Rec. S12684-01, S12688 (Nov. 10, 2005) (statement of Sen. Conrad) ("These imposters use fake medals—or claim to have medals that they have not earned—to gain credibility in their communities. These fraudulent acts can often lead to the perpetration of very serious crimes."); id. at S12689 ("We must never allow [recipients'] service and sacrifice to be cheapened by those who wish to exploit these honors for personal gain."). And newly proposed legislation in Congress, dubbed the Stolen Valor Act of 2011, is calibrated to that purpose, criminalizing misrepresentations of military honor made knowingly and "with intent to obtain anything of value" that is of more than "de minimis" worth. Stolen Valor Act of 2011, H.R. 1775, 112th Cong. § 2(a) (2011), available at http://heck.house.gov/sites/ heck.house.gov/files/Stolen%20Valor% 20Bill.pdf.
The problem for the government, however, is that the Stolen Valor Act is not a narrowly tailored effort to combat fraud. Even when the government pursues permissible ends, if the means impinge on First Amendment rights, then they must be "neither seriously underinclusive nor seriously overinclusive." Brown, 131 S.Ct. at 2741-42. The Act, in my view, suffers a serious overinclusiveness problem. By its terms, the Act has no mens-rea requirement at all, much less one that is narrowly tailored to attack fraud. Even assuming, arguendo, that the majority's limiting construction of the Act is permissible—such that the statute's reach is restricted to
The Stolen Valor Act does not survive strict scrutiny. The government has failed to show that a criminal penalty is the least restrictive means of achieving its interest in protecting the symbolic importance of military awards. Furthermore, the Act is not a narrowly tailored effort at fraud prevention: by its terms it contains no mens-rea requirement at all and the one that the majority purports to engraft onto the statute does not succeed in making the Act narrowly tailored to combat fraud.
Based on the Supreme Court's false-statement jurisprudence, the historical record, and bedrock First Amendment principles, I dissent from the majority's opinion and would hold that the injurious falsehood is the "historic and traditional categor[y]," Stevens, 130 S.Ct. at 1584 (quoting Simon & Schuster, 502 U.S. at 127, 112 S.Ct. 501) (Kennedy, J., concurring in the judgment) (internal quotation marks omitted), that warrants a categorical exception to the First Amendment's rigorous, protective requirements. The Stolen Valor Act, in my view, does not qualify for the exception because it does not target those falsehoods that cause, or pose a significant risk of causing, injury—whether that injury be to individuals or to governmental processes. Being a content-based restriction on speech, the Act therefore must survive strict scrutiny, which it fails to do. The government has not adequately justified the need for a criminal prohibition to effectuate its interest in protecting the symbolic
The best guidance we find on this question comes from an entirely different context. In Michael H. v. Gerald D., 491 U.S. 110, 127 n. 6, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), the Supreme Court suggested that, in determining the level of generality at which traditional protections of family autonomy should be described, "We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified." See Tushnet, supra, at 15-17 (discussing the difficulties in identifying the level of generality with which to describe unprotected categories of speech).
Johnson, 491 U.S. at 418, 109 S.Ct. 2533 (alteration omitted) (citations omitted) (quoting Spence v. Washington, 418 U.S. 405, 412, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), and Tr. of Oral Arg. at 38) (internal quotation marks omitted). Protecting the integrity of military honors has been of central concern to our government and its leaders since the earliest days of the Republic. See General Orders of George Washington 30 (Newburgh, E.M. Ruttenber & Son 1883) (Order of Aug. 7, 1782) ("Should any who are not entitled to the [military] honors, have the insolence to assume the badges of them, they shall be severely punished."). The Ninth Circuit concluded that the Stolen Valor Act was justified by Congress's "noble" and compelling interest in "preserving the integrity of its system of honoring our military men and women for their service and, at times, their sacrifice." Alvarez, 617 F.3d at 1216.
Putting aside the fact that any line of argument predicated on this report would come too late because the government did not reference it until its reply brief, see, e.g., United States v. Abdenbi, 361 F.3d 1282, 1289 (10th Cir.2004) ("The failure to raise an issue in an opening brief waives that issue."); Carpenter v. Boeing Co., 456 F.3d 1183, 1198 n. 2 (10th Cir.2006) (noting that "we particularly frown on the making of new arguments in a party's reply brief"), the government does not assert that, at any time, Congress has affirmatively endorsed the report's recommendation—which was issued, in any event, after the passage of the Stolen Valor Act—and, therefore, the report's recommendation under no circumstances should be accorded the level of deference in our present analysis that we have customarily extended to congressional findings. The report's recommendation is not of sufficient persuasive force to alter our conclusion here regarding the government's failure to carry its burden in the least-restrictive-means analysis.
