it's been a really great, indept discussion of an important topic and a thank you to all of you for joining us here. [ applause ] >> tonight on c-span, a look at the supreme court and the united states versus alvarez. that's followed by human rights and foreign policy at the state department. and later, a look at youth environmental activism from the commonwealth club of ya kra. on thursday, the supreme court struck down a federal law about a crime with military honors. the 6-3 ruling strikes down congress's stolen valor in 2006

and said the first amendment detects the speech we embrace. we're going to show you the oral argument from february and it's about an hour. >> we'll hear argument first this morning, united states versus alvarez? >> general verilli? >> military honors play a vital role in inculcating the armed forces. the military applies exacting criteria and awarding honors and congress has a long tradition of ledge slating to protect the honor system. stolen spsz valor act continues that tradition. it regulates a carefully limited and narrowly drawn category of calculated, factual falsehoods.

it advances a legitimate, substantial, indeed, compelling governmental interest and it shows no protected speech. this court has recognized -- >> general, may i pose a hypothetical? the vietnam war, the protester holds up a sign that says i want a purple heart, dash, dash, for killing babies. knowing statement? he didn't win the purple heart. as a reader, i can't be sure whether he did and is a combat v veteran who opposes the war or whether he's a citizen protesting the war. is that person, if he's not a veteran, having received the medal, is he liable under this act? >> i think, your honor, it would depend on whether that was -- that expression was reasonably understood by the audience as a statement of fact or as an exercise in political theater.

if it's the latter, it's not within the scope of the statute. >> isn't it to suggest speech to the absolute rule of no protection which is what you're advocating. that there are no circumstances in which this speech has value. i believe that's your bottom line. >> well, what i would say with respect to that, your honor, is that this court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no first amendment value. >> well, i'm not sure that that's quite correct. it has said it often. but always in context where it is well under that speech can injure defamation. page 12 of your brief. you make this point. it's what the justice is indicating. you think there's no value of the falsity.

but i simply can't find that in your our cases. and i think it eegs a sweeping proposition. there's no value to the falsity. falsity is a way in which we contrast what is false and what is true. >> i want to respond with precisi precision, justin kennedy, that the -- i think what this court has done is to draw a line. and i think it is gertz itself that contains this court's statement, that false staetemens of fact have no first amendment value. that doesn't automatically mean that a false statement of fact lacks first amendment protection. >> but that's in the context of a defamation case. now, you want to take the gertz kasz, where it's well understood the defamation is actionable and say as a general matter, the government can invade against what's false.

>> i'm trying to say something much narrower. the government has the authority, if it can meet the breathing space that the government has articulated that factually false statements have no intrinsic first amendment value. those are substantial constraints that are satisfied in this case because the stolen valor act creates a falsehood that an individual has won a military honor. and this's information that is within and only punishes speech about yourself. so it is speech that's uniquely within the knowledge of the individual speaker -- >> suppose that defamations were left out and congress had said don't like people saying that

they were in the marine core for 25 years. so they have a statute, just like this one. but it is directed to the false claim that one has served in the armed forces. i don't see in your argument that there's something special about the declarations. >> well, i do think the declarations matter, justice ginsburg. we think that that statute would be a harder case and closer to the line because the category is much broader, much harder to define. >>. >> what does the broadness have anything to do with the breathing space? i suppose your argument is that there is harm. it's not just falsehood, but it's falsehood conjoined with harm, just as libel is. that -- >> that's exactly all right with me.

so in the example that the justice just gave, in your example to those courageous men and women who receive the declarations. there's harm to the people who honorably served in the armed forces. so why isn't -- >> yes rkts and that's what i was trying to get. >> under this kourts's breathing space, congress would need to articulate a substantial interest. we think that would likely qualify. >> well, where do you stop? there are many thicks that people know about themselves that are rejectblely verifiable where congress would have an interest in protecting. high school diploma. it is a crime to state that you have a high school diploma if you know that you don't. that's something that you can check pretty easily. congress o congress can say we want people to finish high school. >> i think that that case, your

honor, i think if it's an objectively verifiable act, it would seem more likely that a state legislature would enact a law like that and the state could articulate a substantial interest. >> it's the one that i just said. some states do have laws respecting false claims to have received a diploma. >> but that's for submitting resumes. that's fraud. >> if i could get back to your honor's point about the nature of the harm, it is true that you have the particularized hampl. but this court, the common karktistic that allowed in court to move from defamation to false-light privacy to intentional emotional distress and then the sham exception under the national labor relations act. it was not an analogy to the particularized harm that

existed. >> it's the calculated factual falsehood. it is true that the harm here is different. >> they were in the context of recognized towards intentional and emotional distress. here, it does seem to me that you can argue that this is something like a trademark. a medal in which the government and the armed forces have a particular interest. we could carve ut a section for that. and i think we have to do that. but to say there's no value of a false speech, i simply cannot believe that they stand for that broad proposition. >> that is true. and this is a case that one of the harms that justifies this statute is the misappropriation

of the government-conferred honor and es salespeople. and there's also the particularized harm of the erosion of the vam of the military honors conferr ered byr government. and nose are particularized harms that are real and the kind of speech that this statute regulates are a genuine threat in a way that looking backwards, looking and anchoring this argument in the tradition of the supreme court's precedence, this is a -- >> general, i spent a lot of time going dlu tthrough the mul cases that you cited in your brief, defining the various statutes that basically impose penalties for impersonation of somebody.

vir dhully at every one of them, there was either an economic interest that was harmed by the very face of the statute or by the nature of the claim. a delusion of a trademark by taking on someone else's value property rights. so i went back reading cases and the story many, many years ago said look, falsehoods have no value. >> but the breathing space concept is defined by those falsehoods which cause injury rightings that they have or to the reputation of others. and almost every stra chut where

we've approved a harm concept as being permissible for recovery, has afekted one of those three things. so please tell me what's wrong with the story, number one. and number two, how does the definition of harm fit in that? what's the harm here that fits within that? >> i think three-points. i think the one reality here is that as i read this court's case, this court has never held or even suggested in any context when the government wants to regulate a properly defined category of calculated, factual falsehood, that it has to meet striblgt scrutiny.

>> you said if you want to regulate a falsehood, it has to cause a harm this way. >> but i think it's relevant, the point about the justice story in the following way. >> there are a series of statutes, 18019-62, 1001 being the false statement statute, perjury statutes. what was our design to protect the integrity of the government processes. >> not really their intent to protect the right of the government to secure truthful information. the government has a right to subpoena you at trial, subject you to oath and force you to tell the truth.

so that's a right. >> there's an additional category of long-recognized, government-accepted regulation of factual -- calculated factual falsehood that serves systemic interest. and with respect to the stolen 46 stolen-valor act, the statute that congress invented in 1923 which prohibited the wearing of medals without justification to wear the medals. and one of the reasons to do that was out of concern that the misappropriation that the government was going to cause substantial harm. that's been on the books for the better part -- >> general, is your argument limited to statements that a person makes about himself or herself? >> yes, it's been lipted to

factually verifiable limitation and the category of what's described as the speaker. >> what's the principle reason for drawing the line there? suppose the statute also made it a crime to represent falsely that someone else was the recipient of the military medal so that if someone said falsely and knowingly that a spouse or a parent or a child was a medal resip yer recipie recipient, that would also be covered? >> i think that would be a case in which under the breathing space principles that this court applies when we're talking about calculated, factual falsehood, you'd have to answer a question, which is how much risk is there of killing constitutional protected speech. >> that's as far as that risk goes. i hope that in your earlier

colloquy with justice kennedy, you were not retreating from what our cases have repeatedly said. now, this doesn't mean that every falsehood can be punished because in punishing some falsehoods, you risk deterring truth. >> and that's what i was trying to say. >> i believe there's no first amendment value in falsehood. >> you have to answer the question in that case whether there was a material risk. who knows whether your grandfather was telling the truth when he said he won the medal. >> the assumption is that it's false. and then it's not so hard to find out if somebody claims to have the medal of honor and he doesn't.

so the first -- you answered yes that it's ont self. and then you can say -- or at least i think you said, making a false statement of fact. and the concern is -- and i gave you the question of just the service. other statements of fact, false statements, like i deny that the holocaust ever occurred. that's a statement of fact, isn't it? >> i think it would be a three-point discrimination problems and i think also under the court's breathing space analysis, you would have to look long and hard because it's so bound up with maters of

controversy that you'd want to exercise care. but that's really quite different from what we have here. this is pin-point accuracy. a specific claim about yourself. >> i want to follow up on justice's question. i'm not sure i understand. the government's position is that there is no first amend. ment value in a false representation of fact by which i understand you to mean not parody or something like that, but a statement that's intended to be understood as true. there is no first amendment in that statement. it may be protected because of the breathing space argue. there's no protection in that false representation as stuff. >> well, that is the position we've taken in this case. and the reason we've taken this is we read the court's precedence as saying precisely

that. in fact, false statements of fact impede the search for trooult. that's -- our position is based on the precise language of cases stretching back a half o century. garrison said calculated falsehood is a category speech that is no part of the expression of ideas for the search of truth. >> general, what about these state statutes? there are more of them than i thought there would be that say no demonstrable falsehoods by a political candidate in a political race. and prohibit demonstrable falsehoods by political candidates. how would your analysis apply to those? would they come out the other end as constitutional? >> i think that those kinds of statutes are going to have a lot harder time getting through the breathing space analysis because of the context in which they arise is one that would create a

more significant race. >> but suppose they say about yourself? just about your qualifications, about what you've done in your life, whether you have a medal of honor. whether you've been in military service. whether you've been to college. so any demonstrable statement that a candidate, political candidate makes about himself. >> i think under the court's breathing space analysis because of the political kand dpat context, those statutes are going to pose a particular risk of chill that this statute does not pose. >> i guess i don't understand why it would be more in one case than the other. >> well, i any the idea would be in a situation like that one. the government's power and aauthority is being trained specifically on the political process with statements in the political process. and this is quite dichbt.

>> that would be in the case of the state statutes because the state feels it has an especially important interest in maintaining the political sphere free of lies. >> i guess the chilling effect seems to me -- at least to be materially different than in a situation like this one where what we're talking about is a very specific pinpoint thing. one thing, have you been awarded a military honor or not? statement is about yourself only. not about somebody else and is supported by a quite strong, particularized interest in ensuring integrity of the military honors. >> i suppose we're moving into the commercial context, we allow a decent amount of lying, don't we? it's called puffing? although, you know, making false

representations to sell a profit is unlawful. we do allow puffing, don't we? you woent buy it cheaper anywhere else. >> that's certainly right. and that is the line -- >> so maybe we allow a certain amount of puffing in political speech, as well. nobody believes all of that stuff, right? [ laughter ] >> i suppose it would have smk to do with collateral. i would think the concern in the midst of the political campaign is you have the newest deputy district attorney filing a prosecution at someone two weeks before the election and say well, you lied about this or that and maybe there would have to be a deposition or a trial. >> nothing at all, your honor. and that's what i was trying to say. >> it seems to me your best analogy is the trade mark analogy olympics case, et cetera.

you put that in rather minor -- not an afterthought, but it's a secondary argument in your breathe. it seems to me it's the strongest one. the whole breathing space thing, it presumes the government is going to have a ministry of truth and allow breathing space around it. i just don't think that's our tradition. on the other hand, i have to ak nojs that this does diminish the medal in many respects. >> yes, and that's the government's interest here. and we do think that that kind of -- i think, your honor, that the reason that i think our -- a lot of slippery slope-type questions here today. but we urge the court not to decline to make a sound decision about this statute based on concern about not being able to draw the line because this statute is as narrow as you can get. >> general, but i have a problem, which is it's not as

narrow as it could get. would nt take much to do. and the example it used was someone who used a fraudulent claim of receiving a medal to get money. 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 offense ef 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 received 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 thaulgt that someone is claiming an honor that they didn't receive. so outside of the emotional reaction, 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. >> as the father of a 20-year-old daughter, so do i. [ laughter ] >> if i could take a minute on the interest. >> at some level, it's true. no soldier charges up the mountain saying i think i'll do this because i'll get a medal if

i get to the top. >> well, that's not what the honor system is about. they're about identifying the attribut attributes, the essence of what we want in our servicemen and women, courage, sacrifice, love of could be country, willingness to put your life on the line for your comrades. and what the medals day is say to our military, this is what we care about. it's what george washington said in 1782 when he set up the honor system. it's designed to cherish -- it's designed to cherish the ambition in soldiers and to encourage every species of military merit. and what i think with respect to the government's interest here and why there is a harm to that interest is that the point of these medals is it's a big deal. you get one for doing something very important after a lot of skrooutny. and, for the government to say this is a really big deal, and to stand idly by when one after

noot makes a false claim does deface the value of the medal in the eyes of the soldiers. it does do that. that is the government's interest. we think that is sa real and substantial swres. >> this jentle man was publicized. deriled for what he did. his public position was compromised, as is the case with almost everyone who's kaugt. >> given this category of calculated falsehoods, we think the government has the authority and the constitutional space to try to deter this kind of speech as well as for private -- >> did the military ask -- and you'll play me -- there's a special interest in seeing that a military honor is not debased.

>> it did not. but congress has substantial authority. it's not unlike the statute that the court evaluated in the fair case in that regard, which is not a statute that the military -- that the military asks for. congress, never the less, was given substantial -- >> did the commander in chief sign that ledgelation? >> yes, he did, your honor. >> thank you. >> thank you, mr. chief jus fis. tis. and may it please the court. it doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. and the law punishes false claims regard less of whether results aren't likely to result

in an virj. . >> what is the first amendment value in a lie, pure lie. >> just a pure lie? there can be a number of values. there's the value of personal autonomy. >> what does that mean? >> that we get to exaggerate and create -- >> no, not exaggerate, lie. >> well, when we create our own persona. >> he made things up about himself. >> that was for literary purposes. no one is suggesting that you can't write a book or tell a story about somebody who earned a medal of honor and it's a fiscal character so he obviously didn't. >> perhaps. but there are other things, in