An Examination of Substantive Due Process and Judicial Activism 11-17-12
The Federalist Society closed its 2012 National Lawyers Convention with Showcase Panel IV. After it became clear at the oral argument the health care mandate law might be in trouble, President Obama suggested that the Justices would be engaging in judicial activism if they overturned the law. This is a particularly high profile example, but charges of judicial activism have been a key part of the discussion of the role of the courts for quite some time, in earlier times from people generally identified as conservatives, but more recently by liberals and progressives. Is there real meaning to the term? Would the term apply to overturning the Affordable Care Act? The Defense of Marriage Act? The three most common ways of understanding judicial activism are that it refers to when judges invalidate legislation, when they do so based on their individual preferences rather than the requirements of the Constitution, and when they overrule a prior precedent. This panel will consider these various possibilities as well as whether the term continues to be a useful one. –Prof. Steven G. Calabresi, Northwestern University School of Law and Chairman, The Federalist Society –Hon. Walter E. Dellinger, III, Partner, O'Melveny Myers LLP, Duke University School of Law and former Acting US Solicitor General –Prof. Nelson R. Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law –Mr. William H. “Chip” Mellor, President and …From:TheFederalistSocietyViews:3 0ratingsTime:01:29:59More inNews Politics
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/
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Court Avoids First Amendment Question in Indecency Case
Washington • Is there value in a lie?
That’s a question the Supreme Court weighed on Wednesday as it took up the case of a California man who was charged with a crime for lying about receiving the Medal of Honor.
Xavier Alvarez falsely claimed that he was a Marine who earned the nation’s top award, but the question of whether such a deceit warrants prosecution and jail time — or has value and deserves protection under the First Amendment — is now up to the nation’s high court.
The case could have direct repercussions for a Utah County veteran, Myron Brown, who is also accused of lying about earning the Distinguished Service Cross, the Silver Star and the Purple Heart during his service in the Korean War.
In Brown’s case, Rep. Jason Chaffetz, R-Utah, presented the Provo resident with medals during a ceremony last year that was covered by the Deseret News, the Daily Herald of Provo and KSL-TV. Saying he was duped, Chaffetz last month turned over his own investigation into the matter to federal prosecutors and said he’ll convene a congressional hearing on the matter.
The actions came more than a month after The Salt Lake Tribune first reported Brown, 86, presented fraudulent documents awarding him the medals. Brown denies any wrongdoing.
Justices in the Alvarez case on Wednesday were skeptical of the Stolen Valor Act passed by Congress in 2006 that criminalizes false claims of military medals, and feared that making it unlawful to lie could stifle free speech permanently.
Justice Stephen Breyer noted that if it’s illegal to lie about a military medal, then political rhetoric could soon be criminalized.
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“And then if this [law] is lawful and constitutional, then you have people in political campaigns suddenly worrying that the U.S. attorney is going to come in and start indicting him,” Breyer told Solicitor General Donald Verrilli.
“That’s part of the chilling effect,” Breyer said. “And you’ve assumed you can get around this chilling effect, but I’m less certain.”
Justice Anthony Kennedy disagreed with Verrilli’s argument that there is no intrinsic value in a lie and therefore it has no need for First Amendment free-speech protection.
“I think it’s a sweeping proposition to say that there’s no value to falsity,” Kennedy said. “Falsity is a way in which we contrast what is false and what is true.”
Verrilli countered that the high court has often ruled that lies — such as perjury or fraud — have no protection as free speech and that in this case, the government can easily prove when someone is falsely claiming to have been awarded a medal.
“The Stolen Valor Act regulates a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor,” Verrilli said.
Justice Antonin Scalia agreed.
“I believe that there is no First Amendment value in — in falsehood,” he said, noting that lying about military service does harm to those who actually did serve and were awarded medals for their heroism.
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Supreme Court: Is a lie protected by free speech?
Enlarge Bruce Smith/ASSOCIATED PRESS
The Supreme Court heard arguments over whether it should be a crime to lie about receiving military medals. Here large replicas of the Medals of Honor hang at the Medal of Honor Museum.
Bruce Smith/ASSOCIATED PRESS
The U.S. Supreme Court took up the subject of lying on Wednesday.
Specifically at issue was the constitutionality of a 2006 law that makes it a crime to lie about having received a military medal. But the questions posed by the justices ranged far beyond that — from advertising puffery to dating lies.
At the center of the case is Xavier Alvarez, a former California county water board member who is an undisputed liar. Among his lies is that he played professional hockey, served in the marines and rescued the American ambassador during the Iranian hostage crisis. None of those lies was illegal.
But when he claimed to have won the Medal of Honor, that lie was a violation of the Stolen Valor Act, which makes it a crime to make false claims about receiving military medals.
Alvarez appealed his conviction and won. A federal appeals court struck down the law as a violation of the First Amendment guarantee of free speech.
The government appealed to the Supreme Court where, Solicitor General Donald Verrilli on Wednesday told the justices that the law regulates only a narrowly drawn category of calculated falsehoods and that the “pinpointed” pure lies targeted by the statute are not speech protected by the First Amendment.
But Verrilli soon faced a barrage of questions about when Congress can make it a crime to tell a lie that does not defraud or defame.
Justice Sonia Sontomayor began by asking whether, under this law, the Government could have prosecuted a Vietnam War protester for holding up a sign that said, “I won a Purple Heart — for killing babies,” when the protester had not won the medal.
Verrilli answered that “it would depend” whether that expression was “reasonably understood by the audience as a statement of fact or an exercise in political theater.”
“That's somewhat dangerous, isn't it,” responded Sotomayor, noting that she thought it was the government's position that there are no circumstances in which calculated and false factual speech has value.
Yes, Verrilli said, that is the government's position. It is also the Supreme Court's position, expressed repeatedly in its opinions, he maintained.
At that suggestion, Justice Anthony Kennedy almost levitated out of his chair.
“I simply can't find that in our cases,” he said. “I think it's a sweeping proposition to say that there's no value to falsity.”
Verrilli responded by trying to narrow the reach of the language in the Stolen Valor Act. The law, he argued, regulates “a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor, and that's information that is … uniquely within the knowledge of the individual speaker.”
Still, Chief Justice John Roberts wondered, “Where do you stop?”
Could Congress make it a crime for a person to falsely claim that he graduated from high school?
Verrilli conceded that Congress, or more likely state governments, could make it a crime to lie about having graduated from high school.
Justice Kennedy, however, was clearly in search of some narrower category of false speech that could be outlawed. “You can argue that this is something like a trademark, a medal in which the government and armed forces have a particular interest, and we could carve out a narrow exception for that,” he said. “But just to say that …there is no value to false speech. I simply cannot agree.”
Justice Samuel Alito asked whether the military medals law is limited to statements a person makes about himself.
Verrilli said it is, but then Alito asked why the government chose to draw the line there. “Suppose the statute also made it a crime to represent falsely that … a spouse or a child was a medal recipient?”
Justice Ruth Bader Ginsburg broadened the question further. Could Congress criminalize other false statements, such as denying that the Holocaust occurred?
Verrilli replied that that kind of statement would be protected under the First Amendment because “it's so bound up with matters of ideological controversy.” He said that the Holocaust example was different from this case, which involves, with “pinpoint accuracy, a specific verifiable claim about yourself having won a medal.”
Justice Elena Kagan noted that quite a few states have laws on the books that make it a crime for political candidates to lie during a political campaign. But Verrilli said those laws too would likely be unconstitutional because they would risk chilling speech.
Justice Antonin Scalia noted that “Even in the commercial context we allow a decent amount of lying, don't we? … It's calling puffing.”
“What about lying about extramarital affairs?” asked Kagan. After all, she observed the government has a strong interest in the sanctity of the family.
Verrilli acknowledged the hypothetical presented “a hard case.”
“The trouble is,” interjected Justice Stephen Breyer, that we “can think of 10,000 instances that meet your criteria,” for laws that could criminalize everyday lies.
“[T]he core of the First Amendment,” observed Justice Sotomayor, is to protect even offensive speech.” In this case, she contended, “we don't think less of the medal … we're offended ” by the lie. “So outside of the emotional reaction, where's the harm?”
“I'm not minimizing it,” Sotomayor added. “I take offense when someone I'm dating makes a claim that's not true.”
At that, Solicitor General Verrilli piped up. “As the father of a 20-year-old daughter, so do I.”
But this law involves weighty symbols of courage and valor, Verrilli said. These medals “are a big deal. You get one for doing something very important, after a lot of scrutiny. And for the government to … stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers.”
In that case, Justice Ruth Bader Ginsburg wondered, did the military ask Congress to enact the military medals law?
No, Verrilli replied. It did not.
Following Verrilli to the podium was the lawyer for Alvarez, public defender Jonathan Libby.
The first question came from Chief Justice Roberts: What is the First Amendment value in a pure lie?
Libby answered that people often make things up about themselves, such as when “Samuel Clemens created Mark Twain,” fabricating much material about his own biography.
Roberts dismissed that example, saying Twain lied for “literary” purposes.
Justice Alito persisted: “Do you really think that there is a … First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself?”
When Libby floundered, Justice Breyer interjected by providing an example of a lie that had value: “Obvious example…are you hiding Jews in the cellar? No.”
Even some of the Justices who voiced concerns about the government's argument still seemed reluctant to strike down the law outright.
Justice Kennedy opined, “It's a matter of common sense that…[the false claim to a medal] demeans the medal.”
Justice Kagan questioned whether the Stolen Valor Act could affect other forms of speech. “The reason we protect some false statements…is to protect truthful speech,” she observed. So, “how is it that this statute will chill any truthful speech?”
Defense lawyer Libby conceded that he could not think of a way the Stolen Valor Act would in fact chill speech.
A surprised Kagan replied, “Boy … that's a big concession, Mr. Libby.”
Still, Libby insisted that in order to justify a law like this one, there would have to be an immediate targeted harm that is inflicted or there would have to be some sort of personal gain from the lie.
How much harm, asked Justice Alito. Suppose the lie built up the liar so much that he got a date with a rich potential spouse. Would that be enough harm?
I certainly would not think that is a significant “thing of value,” Libby responded.
Alito, with a wry smile: “Some people might have a different opinion.”