Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As defamatory false statements can lead to legal liability, false statements in other contexts can violate legal prohibitions. For instance, more than 100 federal criminal statutes punish false statements in areas of concern to federal courts or agencies,1 and the Court has often noted the limited First Amendment value of such speech.2 The Court, however, has rejected the idea that all false statements fall outside of First Amendment protection.
In United States v. Alvarez,3 the Court overturned the Stolen Valor Act of 2005,4 which imposed criminal penalties for falsely representing oneself to have been awarded a military decoration or medal. In an opinion by Justice Anthony Kennedy, four Justices distinguished false statement statutes that threaten the integrity of governmental processes or that further criminal activity, and evaluated the Act under a strict scrutiny standard.5 Noting that the Stolen Valor Act applied to false statements made “at any time, in any place, to any person,” 6 Justice Anthony Kennedy suggested that upholding this law would leave the government with the power to punish any false discourse without a clear limiting principle. The plurality applied strict scrutiny to the Act as a content-based law. Justice Stephen Breyer, in a separate opinion joined by Justice Elena Kagan, concurred in judgment, but did so only after evaluating the prohibition under an intermediate scrutiny standard. While Justice Breyer was also concerned about the breadth of the Act, his opinion suggested that a statute more finely tailored to “a subset of lies where specific harm is likely to occur” could withstand legal challenge.7
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Footnotes
- 1
- United States v. Wells, 519 U.S. 482, 505–507, nn. 8–10 (1997) (Stevens, J., dissenting) (listing statute citations).
- 2
- See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) ( “False statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas.” ); Virginia State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. at 771 ( “Untruthful speech, commercial or otherwise, has never been protected for its own sake.” ).
- 3
- 567 U.S. 709 (2012).
- 4
- 18 U.S.C. § 704.
- 5
- Alvarez, slip op. at 8-12 (Kennedy, J.). Justice Anthony Kennedy was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor.
- 6
- Alvarez, slip op. at 10 (Kennedy, J). Justice Anthony Kennedy was joined in his opinion by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor.
- 7
- Alvarez, slip op. at 8–9 (Breyer, J).