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Court Avoids First Amendment Question in Indecency Case

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Jun 222012

By Peter Landers

Count us as a little surprised at the way the Supreme Courts ruling came out in the case over Federal Communications Commissions indecency rules.

At arguments in January, many of the comments from the courts conservative wing focused on the governments role in upholding broadcast television as an island of propriety amid a sea of cable indecency, as Jess Bravin wrote at the time.

And part of the discussion centered on the First Amendment guarantee of freedom of speech: If the FCC were allowed to punish networks for fleeting indecency such as the f-word spoken during a live awards show, would that chill speech?

Solicitor General Donald Verrilli argued that the FCC was trying to make reasonable accommodations for First Amendment values. Carter Phillips, representing broadcasters, said the court ought to decide the First Amendment question thats presented here. He said the FCC was going too far.

More than five months later, the opinion comes in. Whats the First Amendment ruling? Writes Justice Anthony Kennedy: [T]he Court need not address the First Amendment implications of the Commissions indecency policy. And theres little in the opinion about defending propriety, aspiring to a less vulgar culture and other such notions aired at argument.

Instead, Justice Kennedy, writing for the court, says the key point is that the FCC failed to give networks fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.

Whether the FCC rules would be constitutional if the agency did give fair notice is a question left for another day/

Twitter: @PLandersDC

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Court Avoids First Amendment Question in Indecency Case

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Court weighing free speech vs. lie about military honors

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Feb 232012

Court weighing free speech vs. lie about military honors

WASHINGTON — Over the course of an hourlong argument Wednesday, the Supreme Court seemed gradually to accept that it might be able to uphold a federal law that makes it a crime to lie about military honors, notwithstanding the First Amendment's free speech guarantees.

The justices were aided by suggestions from the government about how to limit the scope of a possible ruling in its favor and by significant concessions from a lawyer for the defendant.

The case arose from a lie told in 2007 at a public meeting by Xavier Alvarez, an elected member of a Southern California water district board of directors. “I'm a retired Marine of 25 years,” he said. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

That was all false, and Mr. Alvarez was prosecuted under a 2005 law, the Stolen Valor Act, which makes it a crime to say falsely that one has “been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Mr. Alvarez argued that his remarks were protected by the First Amendment.

His case ran into trouble at the Supreme Court, as it emerged that many justices accepted two fundamental propositions. First, most of the justices seemed to accept that the First Amendment does not protect calculated falsehoods that cause at least some kinds of harm. Second, there seemed to be something like a consensus that the government has a substantial interest in protecting the integrity of its system for honoring military distinction.

To arrive at those two propositions, the justices worked through any number of hypothetical questions and worried about the collateral damage to free speech values that a ruling upholding the law might generate.

Justice Stephen Breyer said it was all right to lie, for instance, when asked, “Are there Jews hiding in the cellar?”

Justice Samuel Alito Jr. suggested that it was acceptable to punish a false statement that “your child has just been run over by a bus.”

Justice Sonia Sotomayor asked about false statements made while dating. Justice Elena Kagan asked about lies concerning extramarital affairs.

Chief Justice John Roberts Jr. asked whether Congress could make it a crime to lie about having a high school diploma. Solicitor General Donald Verrilli Jr. responded that some states had indeed enacted laws concerning diplomas from public universities, and he indicated that they would be constitutional if they concerned calculated lies about verifiable facts that led to real harm.

Mr. Verrilli listed several laws that punish those kinds of falsehoods, including ones prohibiting false statements to federal officials and banning impersonation of federal officers, as well as perjury.

Similarly, he said, the Stolen Valor Act punishes only knowing falsehoods that result in “the misappropriation of the government-conferred honor and esteem,” which he called “a real harm and a significant harm.”

The hardest hypothetical question for the justices seemed to concern state laws that make it a crime for politicians to lie in some settings. Mr. Verrilli said such laws might run afoul of the First Amendment because of their potential to chill truthful speech for fear of prosecution.

Justice Kagan asked a lawyer for Mr. Alvarez, Jonathan Libby, whether the Stolen Valor Act posed the same problem. “What truthful speech will this statute chill?” she asked.

Mr. Libby's response seemed to surprise Justice Kagan. “It's not that it may necessarily chill any truthful speech,” he said. “We certainly concede that one typically knows whether or not one has won a medal or not.”

Justice Kagan considered what she had just heard. “So, boy, I mean, that's a big concession, Mr. Libby,” she said.

Mr. Libby also acknowledged that the government may punish false speech intended to obtain something of value. Chief Justice Roberts asked whether Mr. Alvarez, who was politically active, benefited from his lie. Mr. Libby said that was possible. The chief justice said this, too, was “an awfully big concession.”

The New York Times Co. and other news organizations filed a brief supporting Mr. Alvarez in the case. The brief argued that most false statements are better addressed by exposing them in the marketplace of ideas than by punishing them as crimes.

There was universal agreement on one point at Wednesday's argument. No one spoke up for Mr. Alvarez, including his lawyer.

First published on February 23, 2012 at 12:00 am

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Court weighing free speech vs. lie about military honors

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