Many people are concerned that the Stolen Valor case has converted the First Amendment into a right to lie. Others are happy that the Court resisted the temptation to allow the government to send people off to jail for words that have caused no harm or to assume that the government is a better arbitrator of truth than the marketplace. Lost in the discussion is the Court’s important retreat from First Amendment idolatry.
Prior to the Stolen Valor case, the Court had settled into a frozen mold of determining whether a category of speech was unprotected by the First Amendment. In order to determine that a category of speech was unprotected, either the category of speech had to be historically unprotected (obscenity, defamation, fraud, perjury etc) or the government had to meet a “strict scrutiny” test, namely it had to show that outlawing the speech was necessary to achieve a compelling state interest. And the strict scrutiny test was almost impossible to satisfy. Because the strict scrutiny test is almost impossible to satisfy, the frozen mold approach reates a form of First Amendment idolatry. It assumes that speech is always so important that it invariably outweighs whatever interests the government might have on the other side. By putting a thumb on the scales in favor of speech, the Court shortchanges other important values such as human dignity, privacy, the fair administration of justice, and public health.
Four justices on the Court led by Justice Kennedy stuck with the frozen mold of First Amendment idolatry. They said: there is no long history of outlawing false autobiographical statements of military honors; although falsely making such claims is indefensible, prohibiting such representations is not necessary to achieve a compelling governmental interest. That was not a difficult argument to make. But there was an embarrassing hurdle. Other significant statutes outlaw the making of false statements. In particular, 18 U.S.C. §1001 forbids the making of material false statements to government agents whether or not the misrepresentation misleads. The statute is a major tool in the arsenal of federal law enforcement. For example, Martha Stewart and thousands of others have gone to jail or forced to plea because of the statute. There is no way the Court will declare the statute unconstitutional and the plurality made clear that it was not questioning 18 U.S.C. §1001. But it is hard to see how those justices could uphold that statute using the frozen mold. It meets neither the long history test, nor the strict scrutiny test. It richly demonstrates the need for more sensitive interpretive tools than the frozen mold.
Fortunately, Justices Breyer, joined by Justice Kagan, appreciate the bankruptcy of the frozen mold. They argue that these cases should be approached by considering all the factors relevant to the case without using a test that dictates a free speech outcome from the beginning. Those justices would apply “middle level scrutiny,” and they are right to do so. I have been contending since 1978 that speech comes into conflict with too many important values in too many diverse contexts to hope or expect that speech should always prevail or that a single theory would guide us to satisfying results. If the Stolen Valor case marks the death of the frozen mold, it is a day for celebration.
By the way, I think that the Stolen Valor statute was rightly declared unconstitutional; I have doubts about 18 U.S.C. §1001, and there is much to appreciate in the dissenters’ opinion though in the end, I disagree with it. I will come back to all this early next week.