Asked and Answered: Julie H. Hurwitz

By Steve Thorpe

Legal News

The U.S. Supreme Court recently heard oral arguments on U.S. v. Alvarez, which will test the constitutionality of a 2006 law making it a federal crime to lie intentionally about receiving military decorations. The law, called the "Stolen Valor Act," was used to prosecute Xavier Alvarez of Pomona, Calif., who had posed as a war hero with many medals, including the Medal of Honor. Attorney, law professor and author Julie Hurwitz is president and partner at Goodman & Hurwitz, P.C. She is on the Michigan State Bar Civil Liberties Committee and has spent decades litigating civil rights and social justice cases.

Thorpe: There are concerns that the law turns people into criminals for what they say, rather than do. Perjury, defamation and libel are illegal. Should more common forms of lying be protected speech?

Hurwitz: It has long been held that in a democracy where the freedom to express one's views openly is sacrosanct, the government may not restrict speech simply because it is false. NY Times v. Sullivan, 376 US 254 (1964). As the Supreme Court held in Sullivan, "Erroneous statements are inevitable in free debate and must be protected if freedoms of expression are to have the breathing space that they need to survive."

The only false speech that is properly deemed "criminal" -- at least until now -- has been that which, by its very utterance inflicts injury or tends to incite an immediate breach of the peace. This has been the law since the 1940's. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)

In order to legitimately regulate speech, much less criminalize it, our jurisprudence has consistently required that the government prove that the speech is: 1) intentionally or maliciously; 2) intended to injure a private person; and/or to fraudulently obtain government benefits. In the Alvarez case, the government attempted to analogize the conduct of Mr. Alvarez -- i.e. his lie about having been awarded the Congressional Medal of Honor -- to defamation. That is, according to the government's argument, the reputation of the military was "harmed" as a result of his lie.

The fundamental problem with this argument, as recognized by the Ninth Circuit, is that:

"...there is no readily apparent reason for assuming, without specific proof, that the reputation and meaning of military decorations is harmed every time someone lies about having received one. To the contrary, the most obvious reason people lie about receiving military honors is because they believe that their being perceived as recipients of such honors brings them acclaim, suggesting that generally the integrity and reputation of such honors remain unimpaired. And notably, even in defamation cases, a "publication" is required, ensuring that liability attaches only to those falsehoods spoken under circumstances in which the harm could result. In this case, however, we cannot ignore the fact that nothing in the Act requires a showing of either (1) publicity or (2) victims. Alvarez made his statement in a water district board meeting; it would have made no difference under the Act if he had he made the statement in the privacy of his home at a family dinner." U.S. v. Alvarez, 617 F3d 1198 at 1210 (2011)

To the extent that the U.S. Supreme Court has repeatedly upheld the rights of those in this country who engage in blatantly racist conduct, e,g,, Virginia v. Black, 538 US 343 (2003), and who burn flags, Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989), a Court which is true to the jurisprudence of 1st amendment freedoms would find the Stolen Valor Act to be unconstitutional. To uphold the constitutionality of this law would reduce our freedom of expression in this country, under the 1st Amendment, to unprecedented depths, thereby threatening to undermine the very fabric of what a democratic society is about.

In Virginia v. Black, 538 U.S. 343 (2003), the Court addressed this issue within the context of a law that criminalized acts of cross-burning which were intended to intimidate victims. In finding that law unconstitutional, the Court in 2003 noted that:

The First Amendment, applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law ... abridging the freedom of speech." The hallmark of the protection of free speech is to allow "free trade in ideas" -- even ideas that the overwhelming majority of people might find distasteful or discomforting. Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting); see also Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable"). Thus, the First Amendment "ordinarily" denies a State "the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence." Whitney v. California, 274 U.S. 357, 374, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring). The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. See, e.g., R.A.V. v. City of St. Paul, 505 U.S., at 382, 112 S.Ct. 2538; Texas v. Johnson, supra, at 405-406, 109 S.Ct. 2533; United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 505, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

The protections afforded by the First Amendment, however, are not absolute...

Thus, for example, a State may punish those words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572, 62 S.Ct. 766; see also R.A.V. v. City of St. Paul, supra, at 383, 112 S.Ct. 2538 (listing limited areas where the First Amendment permits restrictions on the content of speech). We have consequently held that fighting words -- "those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction" -- are generally proscribable under the First Amendment. Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also Chaplinsky v. New Hampshire, supra, at 572, 62 S.Ct. 766. Furthermore, "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam). And the First Amendment also permits a State to ban a "true threat." **1548 Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (per curiam) (internal quotation marks omitted); accord, R.A.V. v. City of St. Paul, supra, at 388, 112 S.Ct. 2538 ("[T]hreats of violence are outside the First Amendment"); Madsen v. Women's Health Center, Inc., 512 U.S. 753, 774, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994); Schenck v. Pro-Choice Network of Western N. Y., 519 U.S. 357, 373, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997).

The irony of the Alvarez case is exemplified by a front page NYTimes article that was published the same week as the Supreme Court argument. On February 25, 2012, the Times reported a story about how the top echelons of our military commanders have for years been ordering its psychiatric clinicians to falsely diagnose tens of thousands of its service members with "personality disorders" in order to get rid of "troublesome" soldiers without giving them veterans benefits -- benefits these veterans sorely need in order to get assistance to cope with such injuries as post-traumatic stress disorder and other serious conditions of which they suffer because of the sacrifices they have made for this country. Thus, here we have a situation in which our military is lying about its own service members -- causing real and concrete harm to both their reputations and their psychological conditions -- with impunity. Yet, they now want to prosecute people who have done nothing more than falsely claim to have received an honor that they did not really earn.

Thorpe: Civil liberties groups, publishers and new media outlets have told the court they worry that this law could lead to more government attempts to regulate speech. Valid concerns?

Hurwitz: These are definitely valid concerns. The extent to which this law is upheld, it opens the door -- indeed the floodgates -- for the government to criminalize all forms of speech that may be inherently offensive, or that openly criticizes our government, if such speech contains false statements of fact -- even if such falsehoods are negligently uttered, even if such speech was not publicly made and even if there is no identifiable harm caused to any one person or group of persons.

If the "Stolen Valor Act" is upheld as constitutional, all kinds of speech that criticizes the government -- its position on issues, its conduct, military or police actions -- could be criminalized if it contains one factual error, on the grounds of "harming" the reputation of that governmental agency or action. Under the plain language of this law, the government need only prove that a false statement was made, and need not prove that the false statement (i.e. "I was awarded the Congressional medal of honor") was made publicly or that any actual harm was caused to anyone as a result.

Thorpe: Are you surprised that the current Justice Department, under President Obama, has mounted such an energetic defense of the law?

Hurwitz: I am not at all surprised that the Obama Administration is vigorously defending this law, given that it is an election year. Despite President Obama's liberal rhetoric, he is still the Commander in Chief of the Military and is politically obligated to defend their programs and positions on questions such as this.

Thorpe: Even Mr. Alvarez's attorneys have conceded that he is a liar. He has also claimed to be a former Detroit Red Wing. He was subjected to what his attorneys have termed a "public shaming" for his falsehoods. Should that be the extent of the punishment for people who engage in that behavior?

Hurwitz: As the 9th Circuit aptly put it when addressing this issue in the Alvarez opinion, nothing prevents the government from publicizing those who lie about receiving military medals, or even from prohibiting fraudulently posing as a military veteran in order obtain military benefits. But, "prohibiting pure speech cannot be reconciled with the 1st Amendment." U.S. v. Alvarez, 617 F3d 1198 at 1210 (2011) Unless the speech is maliciously or intentionally intended to cause harm or fraudulently obtain economic gain, and actually does cause such harm, the only reasonable response to such lies is simply to expose them and ostracize the liar.

One of the reasons that defamation, for example, can be prohibited is that the harm that is caused by such a lie is virtually "undoable" once it has been publicized. That is, once the reputation of a person has been damaged by defamatory publications, it is almost impossible to undo the harm. On the other hand, as in the Alvarez case, "when valueless false speech, even proscribable speech can best be checked with more speech, a law criminalizing the speech is inconsistent with the principles underlying the 1st Amendment." 617 F3d at 1211.

False speech alone can only be constitutionally criminalized when it is committed within the context of the legitimately criminal conduct. That is, the false speech must be related to some underlying criminal conduct.

When there is obvious harm caused to another person or group of persons as the result of an intentionally false statement, i.e. "your child was just run over by a bus," or "let's go kill all Jews," then the government's interest in preserving the integrity of the victim is self-evident. On the other hand, when a person falsely claims to have been awarded a medal of honor, or claims to have served in the military (not with any goal of being awarded any economic gain), then what is the harm that is being protected other than the amorphous "integrity" of the military and those who have risked their lives in the service of the United States. How does this fly in the face of a military that just last week has been publicly exposed for its blatant participation in a concerted conspiracy to prevent military veterans from receiving much needed military benefits by ordering its psychiatrists to falsely diagnose soldiers with "personality disorders" in order to render them ineligible for veterans benefits?

Thorpe: This issue crosses a number of ideological and personality lines on the court and, consequently, may be a hard decision to predict. If you were a betting woman, how do you see the decision concluding?

Hurwitz: From the reports I have read summarizing the oral argument that occurred before the Supreme Court, and given the known ideological leanings of the majority on the Court, I would not be at all surprised if the law is upheld. It is obviously problematic that the Respondent, Mr. Alvarez, is an acknowledged pathological liar and that his lawyer made two significant concessions during the oral argument: 1) that the law would not necessarily chill truthful speech; and 2) that it was "possible" that Mr. Alvarez "benefitted" from his lie, which arguably supports the validity of a law that punishes false speech "that is intended to obtain something of value."

Published: Thu, Mar 22, 2012