Katherine A. Helm
Stroock & Stroock's Joel Cohen
The 9th U.S. Circuit Court of Appeals recently issued a decision that got people talking about the truth-seeking process in the law. For those who took notice, many asked incredulously, was our government actually trying to regulate false expression, in the form of lies? Do we have a truth police state in America? Now, we're not talking about the 9th Circuit case holding that tattoos are expressions protected by the First Amendment, nor are we referring to the 9th Circuit's en banc ruling permitting the government to invoke the state secrets privilege to end a lawsuit against the Bush administration's alleged torture program. Governmental regulation of the truth is an existential undercurrent in many cases, even for non-conspiracy theorists, and the 9th Circuit had a busy summer.
We are talking about a case that directly addressed truth, and the extent to which the government can regulate untruths. That case is U.S. v Alvarez, 2010 WL 3222192 (9th Cir. Aug. 17, 2010) and the facts are as follows: Xavier Alvarez was a new member on a water district board in California who publicly introduced himself at a meeting as a "retired marine of 25 years" who had been "awarded the Congressional Medal of Honor." These were lies. Alvarez never served in the marines, nor in any military capacity, and had certainly never received any military award. The FBI got a hold of a recording of the water board meeting and prosecuted Alvarez under the Stolen Valor Act, which makes it a federal crime to "falsely represent[] [oneself], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces . ..." 18 U.S.C. § 704(b).
The 9th Circuit held the statute invalid as unconstitutional under the First Amendment, based on it being a content-based regulation of speech that did not survive strict scrutiny and was not recognized as an unprotected category of speech, such as defamation, obscenity, fraud, incitement or speech integral to criminal conduct. Bloggers and pundits, as they are prone to do sometimes, quickly whittled this holding down to a so-called "constitutional right to lie."
We can quibble about the niceties, but in fact, the pundits are not so far off. All speech, false factual speech included, is presumptively protected under the First Amendment. A liar cannot be criminally punished for lying, much like a flag-burner cannot be criminally punished for flag desecration, absent a showing of injury to a private individual (as with defamation), or a likelihood of bona fide harm (as with a fraud designed to cause an injury), or other damage. The government's argument that lies about valor will "damage" the reputation and meaning of the awards, and by extension the military itself, was simply not enough for the 9th Circuit. See Alvarez, 2010 WL 3222192, *15 ("[t]he greatest damage done seems to be to the reputations of the liars themselves.").
So too was the government's argument rejected by the one other court that considered (and ruled unconstitutional) the Stolen Valor Act's criminalization of false claims of valor under section 704(b). See U.S. v. Strandlof, 2009 WL 5126540 (D.Colo. Dec. 18, 2009). The district court found the argument that any false claims related to military decorations could damage the motivation of soldiers, to be "frankly, shocking," and "unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor." Id. at *8, quoted in Alvarez, 2010 WL 3222192, *16.
Stepping back for a moment, we can see why "more speech, not enforced silence," to quote Justice Louis Brandeis, is the preferred First Amendment remedy. We can count on so many people getting up in arms (verbally and not literally) about what we all should be able to agree are stupid lies, which is the very reason why the government cannot proscribe such lies.
The notion that someone in a position of authority, in some branch of government, could make a judgment call about "speech that matters" is not only repellent; it is also not the law. Thankfully, "[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." U.S. v. Stevens, 130 S. Ct. 1577, 1585 (2010). The question is not whether the value of a lie is outweighed by the perceived harm it inflicts on the truth-seeking function of the marketplace of ideas. The law protects an uninhibited marketplace of ideas for its own sake. In other words, it's not illegal to be a fake war hero, it's just reprehensible.
But more than reprehensible, while we don't want prosecutors choosing to criminalize falsities and thereby becoming the truth police, the public itself is and should be vigilant about demanding the truth. If someone writes fiction claiming it to be fact, whether or not it is Oprah who exposes the writer, there are consequences. Forget about filing a class action lawsuit against the faux autobiographer and his publisher -- members of the public may themselves judge with their pocketbooks and pass up the writer's next book. The public is equally free to consider a sports figure's escutcheon tarnished if he lies (by his conduct) to gain a base during a hotly contested ballgame.
More importantly, if a candidate for the U.S. Senate who holds himself out as a paradigm for all that is good, presents himself repeatedly and falsely as a Vietnam War veteran who actually served in Vietnam, but in fact served only in the United States, the public may decide to vote for the other guy. In making that decision, the public should be able to count on robust counter-speech by a political adversary to check the false speech, not anti-lying laws. (Parenthetically, Blumenthal could not have been prosecuted under the Stolen Valor Act for false claims about his service anyway, as that act only criminalizes false claims about receiving military awards).
The First Amendment reflects the judgment that, by not placing restrictions on false factual statements, engaged citizens can best make credibility judgments about the trustworthiness of a political candidate, by getting exposed to all viewpoints and ferreting out the truth or speech that matters most. It goes back to as long ago as Thomas Jefferson's own candidacy. We often satirize the public's thirst for trivialities, but here we're not talking about Lady Gaga telling people she's a natural blonde. When the thing is important enough, the public does have a right to "police" and actually punish the prevaricator. Not in federal court but, to use the familiar phraseology, in the court of public opinion.
As noted by the Alvarez court, "The sad fact is, most people lie about some aspects of their lives from time to time." 2010 WL 3222192, *1. That's true, and often legal, and generally socially acceptable, understanding that the liar must be willing to live with the possible consequences of public obloquy. We need not make a federal case out of it, and Congress need not enact a federal statute, in order to "punish" the liar. Society's arched eyebrows and finger wagging do the job of dressing down a phony just fine. As history has proven time and time again, trenchant social commentary can ride roughshod over a reputation.
Interestingly, the courts will sometimes, and we believe rightly, get involved when they see a public figure lying outright and hiding behind the justice system to continue the lie. In 1973, a United States congressman and police hero, Mario Biaggi (who much later was convicted and jailed for accepting an illegal gratuity and obstructing justice) was running for New York City mayor. Acting, apparently, on an improper and probably illegal grand jury leak, a New York Times reporter published a story that Biaggi had refused to answer at least 30 questions before a federal grand jury, invoking his Fifth Amendment privilege on questions related mostly to his personal finances. The story threatened to kill Biaggi's political campaign. Accordingly, Biaggi publicly announced that he would petition the district court to review his testimony in camera and to make a public report about whether he had asserted the privilege about his finances. In response, the government boldly proposed to release all of Biaggi's testimony, redacted to protect the identities of others. Over Biaggi's objection, the court ordered a limited released of testimony largely consistent with the government's request.
Biaggi attempted to regain control of the snafu by appealing. The 2nd U.S. Circuit Court of Appeals was unsympathetic and affirmed the district court, stating "[h]aving sought disclosure, Mr. Biaggi could not condition his demand upon this being done only in a manner harmful to others." In re Biaggi, 478 F.2d 489, 493 (2d Cir. 1973). In a supplemental opinion, issued after the testimony went public, 2nd Circuit Chief Judge Henry Friendly pointedly added that Biaggi's request to limit the report to questions about his finances "was framed, whether wittingly or not, in such a manner as to create a false impression in light of the publicity that had given rise to it." Id. at 494.
As it happened, Biaggi had stated publicly and in his interview by the Conservative Party when seeking its endorsement that he had fully answered all the grand jury's questions. In fact, he had taken the Fifth Amendment 17 times on other things. Biaggi had tried to manipulate the judicial system to claim something false. Rather than impose criminal sanctions against him for using the court to advance his hairsplitting argument about his own truthfulness, the court chose to simply "out" Biaggi by reporting his having refused to answer seventeen questions. That supplemental opinion turned out to be fatal to Biaggi's candidacy.
The 2nd Circuit, thus, acted as the truth police in In re Biaggi, and appropriately so. It recognized that, given grand jury secrecy, had Biaggi not gone to court, there would have been nothing the court, nor presumably a prosecutor, could have done about it. Biaggi could have lied, and continued to lie, with impunity, and maybe weathered the storm. Would Justice Brandeis have sanctioned such a reach of the court's legal tentacles? We think yes, as the result was to leave the true judgment to the public, while letting the truth surface in an uninhibited marketplace of ideas, albeit without the punishing tool of a grand jury indictment.
So before we revel too much in our purported "constitutional right to lie," let us remember that the constitution cannot protect us from the consequences of our lies. In the end, nowadays, the facts will likely come out one way or another. The government doesn't need to have prosecutors policing the truth and seeking criminal remedies. The public knows how to punish a liar just fine in its own way, thank you.
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan, where he practices white-collar criminal defense law. He teaches professional responsibility at Fordham Law School. He is also the author of "Truth Be Veiled," released in July 2010 by Coffeetown Press. Katherine A. Helm, Ph.D., is a law clerk for a U.S. Court of Appeals judge in Washington, D.C. She previously clerked in a U.S. District Court and worked at a large New York City law firm. This column is the latest in a monthly series by Cohen and Helm for Law.com. The views expressed are the personal opinions of the authors.
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