Free Speech Remains Free, No Matter How Unpopular the Message

In 2007, for some reason best known to himself, Gabriel Alvarez, a member of the Three Valleys Water Board (a public agency located in Claremont) told a joint meeting of that board and another board that he was a wounded marine veteran and had been awarded the Congressional Medal of Honor.

None of the statements were true. Alvarez had never been in any branch of the military. He had an apparent habit of detailed fabrications, including a fictional career as a member of the Detroit Red Wings hockey team.

As a result of his claim to the decoration, Alvarez was indicted under the Stolen Valor Act, a federal statute. The law makes it a crime to falsely claim to have been awarded any military decoration or medal. (18 U.S.C. 704(b)(c)) Punishment is set at six months, but if the medal claimed is the Medal of Honor or other high decoration, it can be one year.

He pleaded guilty, but reserved the right to challenge the constitutionality of the statute. His argument on appeal was based on principles of First Amendment free speech law, which require that if a law punishes speech on account of its content, it must meet the exacting constitutional test of strict scrutiny. Under strict scrutiny, such a law must be narrowly tailored to achieve a compelling government interest. Narrowly tailored is interpreted to mean that there is no less intrusive means of achieving the object of the statute.

The statute in question clearly punished the speaker for the content of his speech. The constitutional issue was whether the law could meet the court's strict scrutiny. When strict scrutiny is being applied under the First Amendment, there is a presumption of unconstitutionality, and the government has the burden of meeting the standard. Alvarez argued that the government could not meet this burden.

On appeal, the 9th U.S. Circuit Court of Appeals agreed with him, and found the statute to violate the First Amendment's prohibition of laws abridging freedom of speech. (U.S. v. Alvarez, 2010 WL 3222192 (9th Cir.))

Case law imposes this high burden on laws limiting speech because of the high value the Constitution places on freedom of speech. When a law regulates speech as such, the courts have taken a highly protective position.

The thrust of the case against Alvarez was that he had spoken falsely. No one was defamed, and no one relied on the speech. His prevarication implicated one of our highest patriotic values, honoring military heroes, but there are only a few types of speech that fall into the category of "unprotected speech," allowing the government to proscribe it.

The government attempted to show that this particular false speech, because of its nature, should be considered unprotected. This it could not do. Important as recognition of military valor is, it did not outweigh the liberty interest of this misguided speaker.

Falsity itself, without more, does not cause speech to lose its constitutional protection. If it defames someone, there are consequences from defamation law.

False speech is less dangerous when it can be met with truth. However despicable Alvarez's speech may have been, it could have been (and was) met with the truth. The preferred remedy for false speech, the courts have consistently said, is "more speech."

There was a dissent from Judge Jay Bybee, whose name may be familiar from the Bush administration. He invoked outdated and inappropriate precedent in an attempt to show that false speech is outside constitutional protection, which would require a holding that it is categorically unprotected. The reluctance of the Supreme Court to add such categories is illustrated by the Stevens case.

Robert Stevens was convicted of producing and distributing videos with explicit depictions of animal cruelty. A federal law made the sale and distributions of such material criminal. In U.S. v. Stevens (130 S.Ct. 1577(2010)), the Supreme Court upheld a Court of Appeals decision finding a statute criminalizing the making and selling of videos of animal cruelty violative of the First Amendment. The court specifically refused to add animal cruelty to the explicit list of categories of speech the Constitution does not protect.

That list is limited to incitement, fighting words, obscenity, child pornography, and true threats, each category being narrowly defined. Obviously words constituting fraud or other criminal conduct do not have First Amendment protection. Since the law in question punished protected speech solely on the basis of its content, the arguments supporting it could not meet strict scrutiny.

In 2009, the 4th U.S. Circuit Court of Appeals upheld the right of the obnoxious and intrusive Westboro Baptist Church to picket military funerals without being subject to damage suits. The Westboro Church (an entirely freestanding entity, which no other Baptist group will acknowledge) opposes homosexuality. Its message is that the United States is being punished for its tolerance of differing life styles. Picketing one military funeral led to a suit for wrongful infliction of emotional distress by the father of a fallen marine. The case held that the Constitution precluded a civil suit based on such protected speech. (Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009)) One aspect of the Westboro case remains active: after the appellate court found for the church, the trial court awarded it statutory litigation costs against the plaintiff, the father of the fallen marine whose military funeral was being picketed, whose case was dismissed on appeal. Outraged television personalities have raised money to pay these costs.

In the Alvarez, Stevens and Westboro cases the speech in question represented highly unpopular views. Their unpopularity is such that legislative bodies have enacted statutes prohibiting them, largely by overwhelming votes. Each of the disputed laws upheld values held by many Americans.

And in each case, the courts correctly upheld the speaker's right. The worth of a medal for valor is unquestioned; the bigoted message of the Westboro Church, and its brutal method of promoting it is unacceptable to almost all; and the animal cruelty videos infringe on strongly held beliefs about cruelty to animals. But it is the unpopular message that most requires constitutional protection.

In each situation a more important and universal value is being upheld. From the John Peter Zenger trial in 1735 and the Alien and Sedition Acts, the tradition of free speech has had its ups and downs, but has ultimately become a strong one. Many judicial rules have developed over the years. Government can properly regulate some categories of speech, such as advertising, but that regulation is accordance with accepted constitutional doctrine, and is not based on the unpopularity of the message.

The Supreme Court and the Courts of Appeals are holding in these cases that the government must have a very strong reason before the regulation of speech based on its content can be valid. The courts are performing their judicial function, dating back to Marbury v. Madison in 1803, of enforcing the Constitution when legislation violates it.

The default position is, and should be, no regulation. Legislatures often yield to popular outrage in banning offensive speech. The courts cannot acquiesce in these limitations without depriving the language of the First Amendment, "Congress shall make no law...abridging the freedom of speech..." of its meaning.

On another note, Alvarez will have to enjoy his constitutional victory while a guest of the government. According to the Claremont Courier, he is currently serving a term for misappropriation of public funds, grand theft and insurance fraud.