Reading from the United States v. Alvarez Transcripts

Cross posted from The Burn Pit.

I’ve been pretty clear from the start that I felt this was an uphill battle for us in the Supreme Court.  *I* think that the SVA is within the scope of appropriate congressional action, and does not run afoul of the First Amendment, but have always been worried that the Supremes wouldn’t see it that way.  After hearing the arguments yesterday, I remain fearful of our prospects, but less so.  Say the trek will be less Everest, and more like Mt. Washington.

It is dangerous to read too much into the questions posed by the Justices in oral arguments.  It’s like reading tea leaves…you might get it right, but chances are it was accidental.  That said, I am about to do just that anyway, in the hopes that perhaps some of you keen legal minds out there might read these passages differently, or may have noted other things I missed.

I will say this at the outset, although I thought it went very well, the guy I consider to be the sharpest JAG I ever knew sent me an email this morning that read:

Predictions based on the justices’ questions are not an easy matter, but I don’t think SVA is going to prevail. Kennedy seems to think that it is too broad.

Meanwhile, the Washington Post had an article today that said:

It seemed from the general tenor of the arguments that the justices were looking for ways to agree with [Solicitor General] Verrilli that the exception to the First Amendment’s speech protections was narrow.

He seemed to have one sure supporter in Justice Antonin Scalia, whose comments were uniformly protective of the government’s interests.

“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished” by those who falsely claimed them, Scalia said.

And Verrilli had one clear skeptic in Sotomayor.  “I thought the core of the First Amendment was to protect even against offensive speech,” she said. “You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming that they got one

Just picking up Scalia is a good thing from my point of view, since we need 5, and I had labelled him as a likely opponent.  As is his custom, Thomas remained silent, but I suspect he is with us.  In order to get to 5, we need Scalia, Thomas, Alito, and then two out of Kennedy, Breyer and Chief Justice Roberts.  Like I said, beforehand I gameplayed us needing all 3, now we just need 2/3.

Anyway, here are some passages I found interesting.  (Click here to read full transcript.)

JUSTICE SCALIA: I believe that there is no First Amendment value in — in falsehood.

This was a good sign right off the bat.  Like I said above, I was concerned about Scalia.

 CHIEF JUSTICE ROBERTS: What is — what is the First Amendment value in a lie, pure lie?

After a convoluted answer that cited “personal autonomy” which Roberts rejected, the lawyer went on to Mark Twain, which Roberts pointed out was only a story, a book.  And then Alito weighed in…

 JUSTICE ALITO: Do you really think that there is — that the First Amendment — that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona? Gee, I won the Medal of Honor. I was a Rhodes scholar, I won the Nobel Prize. There’s a personal -­ the First Amendment protects that?

MR. LIBBY: Yes, Your Honor, so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.

The “imminent harm” thing was used repeatedly, although Libby (Alvarez’s counsel) eventually backed away from imminent after he was challenged on it.  He really couldn’t explain what he meant by imminent.

Anyway, the important issues in this case from my reading of the lower courts rulings (9th and 10 circuit opinions) were whether someone was “harmed” and whether allowing the law to stand would create a “chilling effect” on other protected speech.  Assuming that they find harm and no chilling effect, the court would also look at whether there was a less restrictive way to accomplish the goal.  The remainder of these clips deal with those issues.

On harm, Solicitor General Verrilli (who is now one of my favorite people, he was amazing) laid it out thusly:

GENERAL VERRILLI: And this — this is a case in which one of the harm that justifies this statute is the misappropriation of the government-conferred honor and esteem, and that is a real harm and a significant harm, and there is also the particularized harm of the erosion of the — of the value of the military honors confirmed — conferred -­ by our government; and those are particularized harms that are real; and the kind of speech that this statute regulates are a genuine threat to those harms in a way that, looking backwards, looking and anchoring this argument in the tradition of this Court’s precedents, this is a type of calculated factual falsehood.

I mentioned in an earlier post how much I liked the VFW Amicus, and their bring up the Olympic case.  Others disagreed with me that this was a good argument to make, but Justice Kennedy, often the deciding vote in these cases seems to have agreed with me.  (Golf clap for VFW on this one, I commend you guys.)

JUSTICE KENNEDY: Well, it seems to me your best analogy is the trademark analogy, Olympic case, et cetera. You put that in a rather minor — not as an afterthought, but it’s a secondary argument in your brief. It seems to me it’s the strongest one. The whole breathing space thing almost has it backwards. It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don’t think that’s our tradition. On the other hand, I have to acknowledge that this does diminish the medal in many respects.

As noted above, Sotomayor was clearly hostile to the act, and made it clear she doesn’t feel that the harm is sufficiently laid out.

SOTOMAYOR: What I’m trying to get to is, what harm are we protecting here? I thought that the core of the First Amendment was to protect even against offensive speech. We have a legion of cases that said your emotional reaction to offensive speech is not enough. If that is the core of our First Amendment, what I hear, and that’s what I think the court below said, is you can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming fraudulently that they got one. They don’t think less of the medal. We’re reacting to the fact that we’re offended by the thought that someone’s claiming an honor they didn’t receive. So outside of the emotional reaction, 3 where’s the harm? And I’m not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.

Justice Scalia countered that by asking if Congress felt there was harm.

JUSTICE SCALIA: Do we give some deference to Congress as to whether there is a harm to governmental purposes or do we make it up ourselves? When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished.  By charlatans. That’s what Congress thought. Is that utterly unreasonable, that we can’t accept it?

 

And Justice Kennedy just flat out stated his belief regarding the harm to the reputation of the medals.

JUSTICE KENNEDY: Well, it’s a matter -­ it’s a matter of common sense that [the actions of phonies) seems to me that it demeans the medal.

Likewise justice Alito leaped into the fray on harm.

JUSTICE ALITO: You acknowledge that the First Amendment allows the prohibition or the regulation of false speech if it causes at least certain kinds of harms. And the problem I have with your argument is determining which harms you think count and which harms don’t count. Would you go as far as was suggested earlier to say that only pecuniary harm counts?

…It seems to me what you’re arguing is that we should determine that there are certain harms that are sufficient to allow the prohibition of a false statement and there are certain harms that are not sufficient, irrespective of what judgment Congress made about the significance of those harms. Is that — is that accurate?

MR. LIBBY: That’s certainly part of it. I mean, we believe that there needs to be imminent harm, that it needs to be targeted harm to an individual or to — to government function, that it can’t be the type of diffuse harm that the government goes to place here.

And finally, Justice Breyer also weighed in.  (This one I found the most exciting, since he hadn’t been on my list of being in play on this one.)

JUSTICE BREYER: My theory is that it does hurt the Medal, the purpose, the objective, the honor, for people falsely to go around saying that they have this medal when they don’t. Okay? So I might be wrong about that. I just ask you to assume that for purposes of argument, because what I’m trying to get to is I want as big a list as I can to think about of what the less restrictive alternatives are, or might be.

The answer he was looking for never fully materialized.  Mr. Libby didn’t really put forth a compelling “less restrictive alternative”.  He tried to argue that more speech was the answer, but got somewhat ridiculed by the suggestion that perhaps the DoD could start up a “Medal of Dishonor” and start awarding that to these clowns.

As I said before, the chilling effect part was intricate and important to this case.  Right up until Libby seemed to take it off the table, in what has to have been the most startling admission against interest I have ever seen in a Supreme Court case…  Clearly it caught Justice Kagan by surprise as well.

JUSTICE KAGAN: Mr. Libby, let’s suppose that I agree with Gertz that there is no constitutional value in a false statement of fact, and the reason why we protect some false statements of fact is to protect truthful speech. So if, if that’s so, is — how is it that this statute will chill any truthful speech? What truthful speech will this statute chill?

MR. LIBBY: Your Honor, it’s not that it may necessarily chill any truthful speech. I mean, it’s -­ we certainly concede that one typically knows whether or not one has won a medal or not. We certainly — we concede that point.

JUSTICE KAGAN: So, boy, I mean, that’s a big concession, Mr. Libby.

Further, the big fear on a “slippery slope” seemed uncompelling to Justice Roberts.  There was a fear specifically mentioned that there could be certain truth squads set up to make sure political candidates statements were accurate.  However Roberts points out obliquely that the court rules on the case before it, and that fear is not entire germane to this case.

CHIEF JUSTICE ROBERTS: I suppose it might have something to do with, whether called collateral or not, I mean, I would think the concern in the midst of a political campaign is you have the U.S. attorney or the deputy district attorney bringing a — filing a prosecution of someone 2 weeks before the election saying, you lied about this or that and maybe there would have to be a deposition or maybe there would have to be a trial. Nothing like that is involved here.

 

One last argument I found interesting had to do with Congress’ authority under the constitution to regulate the rules for Armies and Navies etc. and resulted in a sort of interesting 3-way colloquoy…

JUSTICE GINSBURG: Did the military — did the military act for this? You’re claiming there’s a special interest in seeing that a military honor is not debased.

GENERAL VERRILLI: It did not, Justice Ginsburg, but under Article I, section 8, Congress has substantial authority to regulate our armed forces, get substantial deference. It’s not unlike the statute that the Court evaluated in the FAIR case in that regard, which was not a statute that the military — that the military asked for, but Congress nevertheless was given substantial deference.

JUSTICE SCALIA: Did the Commander in Chief sign that, that legislation?

GENERAL VERRILLI: Yes, he did, Your Honor.

Anyway, there is a ton more in there if any intrepid readers wish to point out what they see, I would love to hear it.  Let me know what you guys think.

Category: Politics