With most commentators focused on the Supreme Court's decision in the health care cases, I thought it might be useful (or at least a change of pace) to mention the Court's other big decision from yesterday, United States v. Alvarez. The Court (plurality by Justice Kennedy, plus a two-Justice concurrence-in-judgment by Justices Breyer and Kagan) invalidated the federal Stolen Valor Act, which made it a crime to lie about one's military honors, under the First Amendment. Justice Alito, joined by Scalia and Thomas, dissented.
Two comments from an originalist perspective. First, the case gets framed in a way that is reasonably conducive to a textualist/originalist approach (leaving aside -- not surprisingly -- Breyer's concurrence). From the introduction to Kennedy's substantive discussion (quotations and citations omitted):
As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. As a result, the Constitution demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality.
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, content-based restrictions on speech have been permitted, as a general matter, only when confined to the few historic and traditional categories of expression long familiar to the bar.
That seems right in acknowledging the core textualist point that the First Amendment appears absolute on its face and the core historical point that founding-era practice included well-established speech restrictions that no one at the time found problematic.
Alito's dissent uses the same starting point, but the opinions diverge on whether there is an applicable "historic and traditional categor[y] of expression" that encompasses false speech as a general matter. Kennedy says no: there may be some loose language to that effect in prior opinions, but the only solid historical false-speech exceptions are in particular contexts such as libel, perjury or fraud. None of the specific categorical exceptions covers the speech involved in Alvarez, and there is (he says) no broad categorical exception. Alito, in contrast, finds that there is a broad categorical exception for false statements, resting in part on a generalization from the historical examples of libel, perjury and fraud.
From an originalist perspective that seems basically the right framework, although I would say (originally speaking) the exceptions should be rooted in founding-era practice (a point that Kennedy does not make directly and that, as discussed below, Alito ultimately rejects). Still, the core originalist question seems roughly replicated in the debate between Kennedy and Alito: do the acknowledged First Amendment exceptions for false statements (libel, perjury, fraud and the like) represent isolated categories, or are they specific manifestations of a broader category encompassing all false statements? And absent historical evidence of a broader category, it seems exceptions should be limited to what we can actually observe in the founding era. But as discussed on this blog on other occasions, our knowledge of speech regulations in the founding era is underdeveloped. Thus the framework seems right, but Kennedy's conclusion is at least open to challenge upon the uncovering of contrary evidence.
My second point, though, is that Justice Alito's dissent does not find any founding-era evidence, and indeed rejects the idea that it needs to. Here is the core of his analysis on the point:
[M]any kinds of false factual statements have long been proscribed without raising any Constitutional problem. Laws prohibiting fraud, perjury, and defamation, for example, were in existence when the First Amendment was adopted, and their constitutionality is now beyond question. [Ed.: so far, so good.]
We have also described as falling outside the First Amendment’s protective shield certain false factual statements that were neither illegal nor tortious at the time of the Amendment’s adoption. [Ed.: this is where originalists should get worried.] The right to freedom of speech has been held to permit recovery for the intentional infliction of emotional distress by means of a false statement even though that tort did not enter our law until the late 19th century. And the Court [has] concluded that the free speech right allows recovery for the even more modern tort of false-light invasion of privacy.
In line with these holdings, it has long been assumed that the First Amendment is not offended by prominent criminal statutes with no close common-law analog. The most well known of these is probably 18 U. S. C. §1001, which makes it a crime to “knowingly and willfully” make any “materially false, fictitious, or fraudulent statement or representation” in “any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.” Unlike perjury, §1001 is not limited to statements made under oath or before an official government tribunal. Nor does it require any showing of “pecuniary or property loss to the government.” United States v. Gilliland, 312 U. S. 86, 93 (1941). Instead, the statute is based on the need to protect “agencies from the perversion which might result from the deceptive practices described.” Ibid. (emphasis added).
Still other statutes make it a crime to falsely represent that one is speaking on behalf of, or with the approval of, the Federal Government. See, e.g., 18 U. S. C. §912 (making it a crime to falsely impersonate a federal officer); §709 (making it a crime to knowingly use, without authorization, the names of enumerated federal agencies, such as “Federal Bureau of Investigation,” in a manner reasonably calculated to convey the impression that a communication is approved or authorized by the agency). We have recognized that §912, like §1001, does not require a showing of pecuniary or property loss and that its purpose is to “maintain the general good repute and dignity” of Government service. United States v. Lepowitch, 318 U. S. 702, 704 (1943). All told, there are more than 100 federal criminal statutes that punish false statements made in connection with areas of federal agency concern.
These examples amply demonstrate that false statements of fact merit no First Amendment protection in their own right.
I don't see how the last statement follows from the previous discussion. At most, Justice Alito has shown that some kinds of speech that wasn't (or may not have been) considered wrongful at the founding have been prohibited in recent times (or at least in what originalists would consider recent times), and some of that speech involved false statements (though of a different kind than occurred in the present case).
A better way to put it, I think, would be to say that the Court has created some categorical exclusions from First Amendment protection that aren't rooted in founding-era practice, so the Court can create one here too. But that still doesn't explain why the Court should create one: doing so, it seems, rests on Justice Alito's view of policy.
This approach is consistent with Justice Alito's previous views of the First Amendment, and perhaps with his emerging non-originalist views more generally. It's more surprising that Justice Scalia and (even more so) Justice Thomas agreed. Scalia, it is true, is influenced by precedent and customary practices, but I don't see that the dissent has any holdings (as opposed to general statements) in support, and the customary practices it mentions seem to involve distinct statutes and concerns. Thomas, who feels less constrained by precedent and practice, is even more of a puzzle. The dissent has nothing from the founding era that would allow it to generalize from the specific instances of libel, perjury, fraud, etc., to an broader no-false-statements rule; that being so, I'm unclear why Thomas would think it persuasive.
(To be clear, I'm not saying an originalist case for the dissent couldn't be made -- just that the dissent doesn't make it).