“I think this may be a very difficult one for the court,” Hudson said.
On one hand, the court has held for years that “truth” may not be the standard for deciding whether speech is protected by the First Amendment. In 1964’s landmark
New York Times v. Sullivan
, the court said that “uninhibited, robust and wide-open debate” would be compromised if there was an exception for “any test of truth,” especially one that put the “burden of proving truth on the speaker.”
But the court also held later, in
Gertz v. Welch
, that “there is no constitutional value in false statements of facts.”
Certain categories of speech, as Chief Justice John G. Roberts Jr. made clear last year, fall outside of First Amendment protection: obscenity, defamation, fraud, incitement and speech integral to criminal conduct.
The Roberts Court has been reluctant to expand the list. In several recent high-profile First Amendment cases, the court struck down a broadly written law on depicting animal cruelty, upheld the rights of a controversial group that demonstrates at the funerals of those killed in military service and blocked a California law that attempted to outlaw the sale of violent video games to minors.
The VFW brief, arguing for the court to uphold the law disallowing knowing falsehoods, said Alvarez has a “nearly limitless “ range of free speech rights regarding military medals, including burning them, denouncing them, criticizing the government that awards them or even protesting that he should have received them.
Solicitor General Donald B. Verrilli Jr. defends the law by saying speech of limited constitutional value can be restricted so long as the law provides “breathing space” for fully protected speech, referencing another Supreme Court precedent.
But the American Civil Liberties Union told the court that the law gives the government “sweeping power to control and censor public debate.” And the Reporters Committee for Freedom of the Press and 23 news organizations, including The Washington Post, filed a brief saying that upholding the law would reverse “the basic presumption against official oversight of expression.”
Better than criminalizing speech, the brief said, is to promote aggressive coverage of those making the claims.
It cited a 2008 Chicago Tribune investigation that used military records “to unearth 84 bogus Medals of Honor, 119 Distinguished Service Crosses, 99 Navy Crosses, five Air Force Crosses and 96 Silver Stars listed in biographies in the reference book Who’s Who.”
The case is
U.S. v. Alvarez