Legal Commentary

District Court Upholds Stolen Valor Act Again First Amendment Challenge

By Eugene Volokh

This happened in Monday?s United States v. Robbins (W.D. Va.); the court disagreed with the district court in Strandlof and the Ninth Circuit panel in Alvarez, which held that the statute violates the First Amendment.

I think the Act, which criminalizes certain knowingly false claims of having received a military honor, is constitutional, for reasons I discussed in my amicus brief in Strandlof; and though the district court in Strandlof itself was unimpressed, I was pleased to see that the district court in Robbins cited the brief in its analysis. (Note that I think the Act can and should be interpreted to cover only statements that are asserted as fact, and that are made with the knowledge that they are false. Properly interpreted, it doesn?t cover honest mistakes, or statements that are in context jokes or fiction, just as other bans on knowingly false statements don?t cover statements that are in context jokes or fiction.) Here is an excerpt from the court?s reasoning:

[According to the Indictment,] Ronnie L. Robbins produced and distributed campaign material that [falsely] stated that he was a recipient of the Vietnam Service Medal and the Vietnam Campaign Medal. Robbins also wore the Vietnam Campaign Medal, the Vietnam Service Medal, and the Combat Infantryman?s Badge on his military uniform at events he attended as a member of the VFW honor guard. Additionally, Robbins allegedly provided falsely altered documentation to the VFW misrepresenting his military service and asserting that he had been awarded the Vietnam Service Medal and the Vietnam Campaign Medal. Finally, it is alleged that Robbins provided altered documents to a local newspaper corroborating that he had received those medals....

The First Amendment provides that ?Congress shall make no law ... abridging the freedom of speech.? Despite this broad language, there are recognized categories of speech that are excluded from this protection. [Footnote: ... In its recent opinion in United States v. Stevens, 130 S.Ct. 1577, 1584, 1586 (2010), the Supreme Court noted examples of excluded categories such as obscenity, defamation, fraud, incitement, speech integral to criminal conduct, and child pornography. There is no indication that the Court intended to make this listing exhaustive, and, indeed, its mention of ?defamation? as an excluded category supports the historical exclusion of false statements of fact. See Alvarez, 617 F.3d at 1225 (Bybee, J., dissenting).]

One of the recognized categories involves falsity. While ?there is no such thing as a false idea? undeserving of protection, Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974), ?there is no constitutional value in false statements of fact.? Id. at 340.... The general exclusion of false statements from First Amendment protection is consistent with Supreme Court cases dealing not only with defamation, but also with fraud, see Ill. ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003) (?[T]he First Amendment does not shield fraud.?), and commercial speech, see Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976) (holding that false statements in advertising are not protected).

I would have added to this list Cantrell v. Forest City Publsihing (1974), in which the Court held that false light invasion of privacy tort is constitutional as well, even though it restricts speech. (See also Time, Inc. v. Hill (1967).) In any case, if you?re interested in the issue, you should read the rest of the opinion; among other things, the court goes on to explain why some kinds of knowing falsehoods ? such as libels against the government ? remain constitutionally protected, and why the knowing falsehoods banned by the Stolen Valor Act differ from those protected knowing falsehoods.

I take it the defendant will appeal here, just as the government has appealed in Strandlof, and just as the government has asked for rehearing en banc in Alvarez.

Full post as published by The Volokh Conspiracy on January 05, 2011 (boomark / email).