When is a lie a federal crime?

By Lee Davis


Earlier this year the Supreme Court decided US v. Alvarez, a case that tests the limits upon which a community must accept contemptible conduct--in this case speech--from locally elected officials.

Xavier Alvarez is a brazen liar. But is he a criminal? As an elected official for the Three Valley Water District Board with headquarters in Claremont, California, he introduced himself at a meeting. Alvarez claimed he served 25 years in the Marine Corps and that he was wounded in combat--this is false. He boasted that he played professional hockey for the Detroit Red Wings and that he once had been married to a Mexican film starlet--these claims are equally untrue. But the whopper that got him indicted in federal court was the statement that he received the Congressional Medal of Honor. By making that statement he violated the Stolen Valor Act by falsely claiming to have received the honor. By all accounts Alvarez was making a pathetic attempt to draw attention to himself to those assembled at the municipal meeting.

The Stolen Valor Act states that whoever falsely represents himself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both.

Faced with the obvious, his own statements, Alvarez pled guilty in federal court but he reserved the right to appeal his conviction. The appeal eventually found its way to the Supreme Court.

The question before the court was whether the Stolen Valor Act violated the Free Speech Clause of the First Amendment? One circuit court had already found the act constitutional and another found it to be unconstitutional. The Supreme Court accepted the case to address the split authority on this issue.

In June of this year, the Supreme Court found the Stolen Valor Act unconstitutional. Justice Kennedy writing for the majority in a 6-3 decision stated that content based restrictions like the Stolen Valor Act are subject to strict scrutiny to see if the law violates the First Amendment. To be sure, some false statements--false statements of defamation or false statements to federal law enforcement agents are crimes. True threats that present a grave and imminent danger are also crimes. But false statements alone do not present the type of threat that warrants intrusion into the first amendment. False statements of the kind made by Alvarez create no harm--so the court found. Obnoxious behavior and reprehensible conduct, yes, but not a crime. The remedy to false statements is true statements and the Court noted that Alvarez had been roundly criticized and rebuked once his claims we found to be untrue.

In the words of Justice Kennedy: "The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent's statements anything but contemptible, his right to make those statements is protected by the Constitution's guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment."


Here is the full opinion:U.S. v. Alvarez, 132 S.Ct. 2537 (U.S.,2012)

Is Chief Justice Roberts A First Amendment Defender? One New Study Says Maybe Not

One would assume that the Supreme Court led by Chief Justice John Roberts would be an institution especially pro-free speech. However, according to an article in the New York Times, a recent study challenges that conclusion. By analyzing an array of data spanning nearly six decades (1953-2011), the study shows that the Court is hearing fewer and fewer First Amendment cases and, when it does hear them, is ruling in favor of free speech at an lower rate than any of the Courts led by three prior chief justices. 

The timing of the study is opportune as the Court prepares to hear two major First Amendment cases. Today the court will hear arguments in FCC v. Fox Television Stations, a case which asks whether the First Amendment allows the government to regulate obscene language on national television. In February, the Court will hear United States v. Alvarez, and decide whether the government can make it a crime to lie about receiving military decorations. Neither case appears to be a certain victory for free speech advocates. 

The recent study acknowledges that the Roberts Court has on occasion ruled in favor of free speech. These cases have tended to be media spectacles and received significant attention following the ruling. The attention given to the cases has skewed the perception of Roberts’ friendliness for free speech. 

Monica Youn, an attorney with the Brennan Center for Justice at NYU Law said that, “These free speech slam-dunks, with their colorful facts, were among the Roberts court’s cases that have attracted the most press attention, but they are hardly indicative of a conservative majority with an expansive view of First Amendment freedoms.” 

Others have come to Roberts’ defense. Floyd Abrams, an esteemed First Amendment attorney said he was not swayed by the recent findings. Abrams argued that statistics don’t tell much of a story, it’s the Court’s decision to protect unpopular and distasteful speech that really shows whether Roberts will protect the First Amendment and, according to Abrams, “no prior Supreme Court has been as protective as this.”

Abrams cites one of the most controversial decisions of Roberts’ tenure as proof. “Two words - Citizens United.” Abrams said that decision, granting corporations and unions the First Amendment right to spend freely to support candidates in elections, is proof of Roberts’ defense of the free speech even in the face of withering criticism.

In Roberts’ first six years on the bench the Court issued 29 decisions regarding free speech, of those cases it ruled in favor of free speech 10 times, roughly 35% of the time. The three prior Courts heard some 506 cases and ruled for free speech a total of 54% of the time. Such a difference has raised many an eyebrow. 

Some have been quick to identify the cause of the difference. The Court led by Chief Justice Earl Warren, 1953-1969, was famously liberal and, by itself ruled in favor of free speech 69% of the time. Chief Justice Burger, 1969-1986, only ruled in favor of free speech 46% of the time and Chief Justice Rehnquist, 1986-2005, sided with free speech 49% of the time. Though Roberts’ 35% still clocks in as the lowest, the difference between his Court and that of Burger and Rehnquist is not statistically significant.

Read: “Study Challenges Supreme Court’s Image as Defender of Free Speech,” by Adam Liptak, published at NYTimes.com.

Earlier:

Supreme Court Must Answer “The Broccoli Question” 

Health Care Battle Brings Calls for Recusal 

TN Supreme Court Holds That Use Of Racial Derogatory Remark Against African American Officer Was Not Protected Speech

• STATE V. TEDDY RAY MITCHELL

The events in this case concern an anti-immigration rally at the Hamblen County Courthouse grounds in Morristown, TN in 2006. Teddy Mitchell attended the rally and sought to park his car in a prohibited area at the court house.  When he was told by an African American officer not to park his car in that location he responded, “There’s no nigger going to tell me where I can and can’t park.” That and his aggressive confrontation with police led to his arrest and ultimately a conviction after a jury trial to disorderly conduct.  His conviction was reversed on appeal and the state sought review by the TN Supreme Court.

Judge Wade writing the opinion for the court held: "Defendant’s reference to an African-American officer as “nigger” was properly admitted into evidence. The Defendant’s use of that term, his refusal to obey the officer’s directive to remove his vehicle from a no-parking area until a white officer intervened, his angry response, and his loud and belligerent confrontation of the officers at the rally area checkpoint qualified as threatening behavior designed to annoy or alarm in a public place. Moreover, the Defendant’s conduct is not entitled to the protections of free speech. For these reasons, the judgment of the Court of Criminal Appeals is reversed and the conviction and sentence is reinstated."

Significantly, the court held that the defendant had no constitutionally recognized protections under the First Amendment nor Article I, Section 9 of the Tennessee Constitution to this kind of speech.