by Matthew L. Schafer
Just minutes before the Supreme Court upheld the Affordable Care Act, the Court handed down a 6-3 decision in United States v. Alvarez, striking down as unconstitutional under the First Amendment a 2005 law, the Stolen Valor Act. The Act made it a misdemeanor to lie about being awarded a military medal, like the Purple Heart.
“The Act by its plain terms applies to a false statement made at any time, in any place, to any person,” Justice Kennedy wrote in the plurality opinion (the opinion with the most votes). “[T]he sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment.”
While the Court found the Act unconstitutional, there was no majority opinion. Instead, Justice Kennedy wrote for himself and Chief Justice John Roberts, as well as Justices Ginsburg and Sotomayor. Justice Breyer, joined by Justice Kagan, wrote a separate opinion that differed in reasoning, but also found the law unconstitutional.
In the lead opinion, Justice Kennedy began by explaining that the Act, which proscribed a specific type of speech, was an especially invidious type of law: a content-based law.
A content-based law is a law that targets speech because of the message it conveys. For example, a law prohibiting citizens from discussing ice cream would be a content-based law, where the content is “ ice cream.” If, however, an anti-littering law prohibited the distribution of all types of flyers (whether about ice cream or monster trucks), the law would be content neutral.
Traditionally, content-based laws are frowned upon as censorship, because, unlike content-neutral laws, they prevent the public from discussing particular topics altogether.
As Justice Kennedy explained, “In light of the substantial and expansive threats to free expression posed by content-based restrictions, this Court has rejected as ‘startling and dangerous’ a ‘free-floating test for First Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.’”
Instead of a balancing act, the Court, over the last hundred years, has carved out only a few special and narrowly defined categories of speech that can be constitutionally regulated on the basis of their content.
For example, the Court has recognized that lesser First Amendment protection is owed to speech that incites imminent lawless action, panders to prurient interests, defames individuals, promotes a sexual performance of a minor, injures its audience, defrauds individuals, threatens another’s life, aides and abets criminal activity, or presents a clear and present danger to national security.
Applying this precedent to the case at hand, Justice Kennedy noted the conspicuous absence of false statements from the list of historic categories. As a result of this absence, he concluded, false statements of fact must be given complete First Amendment protection. Under such complete protection, the Stolen Valor Act could only be constitutional as a content-based regulation if it passed strict scrutiny.
Strict scrutiny is the Court’s most damning form of constitutional scrutiny. Essentially, it asks whether there are compelling government interests for a law, whether a law is narrowly tailored to achieve those interests, and whether there is another way the government could achieve its interests without suppressing so much speech.
According to Justice Kennedy, the government had a compelling interest in awarding bravery on the battlefield. There was no evidence, however, that the law was tailored to achieve these interests. Moreover, he believed that the government could achieve its interests through other approaches less harmful to speech, like counter-speech.
Because the law only passed one of the required three prongs of strict scrutiny, the plurality found it unconstitutional.
As noted, Justice Kennedy’s opinion garnered only four votes though. The Court needs five votes for a majority. The remaining two votes were those of Justices Breyer and Kagan, who agreed only with the plurality’s conclusion, but not its logic. In their estimation, the Court should merely weigh the societal pros and cons of the Act and uphold the law if the pros outweighed the cons.
“In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means,” Justice Breyer wrote, calling such a test a proportionality approach. “In doing so, . . . [it] has had to determine whether the statute works speech-related harm that is out of proportion to its justifications.”
Under this test, the Court takes into account “the seriousness of the speech-related harm the provision will likely cause, the nature and importance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so.”
Normally, the Court only applies this more permissive test to less worrisome content-neutral laws, like anti-littering laws. Thus, Justice Breyer had to find support for the proposition that the Court should apply such a test to some content-based laws, like the Stolen Valor Act.
Justice Breyer first set out citing a myriad of the Court’s previous free speech cases that employed the more permissive test. There was one problem, however: None of these cases dealt with content-based laws. Instead, they all dealt with either content-neutral laws or with speech that was not subject to full First Amendment protection.
For example, Justice Breyer cited three commercial speech cases, Board of Trustees of State University of New York v. Fox, Central Hudson Gas & Electric Corp. v. Public Services Commission, and In re R. M. J. These cases fail to support Justice Breyer’s extension of the test, however, because the Court has traditionally viewed commercial speech as less deserving of First Amendment protection. As such, laws regulating commercial speech have long been subject more lenient scrutiny by the Court.
Justice Breyer also cited to cases dealing with content-neutral regulations, which, again, are subject to less exacting scrutiny, because they do not target specific types of speech, unlike the Stolen Valor Act. For example, he cited Turner Broadcasting v. FCC, where the Court evaluated the constitutionality of a content-neutral FCC broadcasting regulation. He also cited Burdick v. Takushi, where the Court noted that “there is nothing content based” about the law in question. Finally, he pointed to United States v. O’Brien, the draft card burning case, where the law in question was a law of general applicability that touched on conduct and only tangentially on speech.
Quite simply, Justice Breyer was unable to marshal a single case to support the application of the proportionality test to a content-based regulation punishing false speech about military medals. Instead, the only support he could bring to bear was his own doctrine of constitutional colloquialism, “What I think we should do.”
Of course, as a Supreme Court justice, each justice can advocate for whatever he or she believes is the proper result. Normally, however, a justice advocating for a departure from the Court’s precedent, as Justice Breyer was doing here, at least supports his or her argument with persuasive appeals to precedent, text, tradition, intent, or policy. And the absence of any such support in Justice Breyer’s opinion is bothersome. (It is even more bothersome that Justice Kagan, a new appointee who will be on the Court for years to come, also signed onto such an opinion.)
In short, Justice Breyer’s stark departure from the Court’s First Amendment jurisprudence demands equally stark support. And, quite frankly, a variation of “This is what I think we should do” is not sufficient.