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tv   [untitled]    June 29, 2012 8:30pm-9:00pm EDT

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addition to the fact that people tell lies -- >> do you really think that there is first amendment value in a bald face 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 road scholar. i won the nobel prize. there's a -- that the first amendment protects that? >> yes, so long as it doesn't cause imminent harm -- >> i'll give you an example. are there jews hiding in the cellar? no. >> what are you hiding -- >> excuse me. sorry. [ laughter ] it seems to me that the stolen-valor act is more narrow than that. and i woumd say, in that situation, you would not
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describe what the individual injustice hypothetical was as simply telling a false statement about himself. it is about whether there's someone hiding in the attic. it is not about himself. >> well, just dealing with an example under the stolen-valor act. if the grandfather made up a medal in order to suede a grandchild -- >> in order to. it seems to me that that's missing the limitation that the government has read into the statute. not guilty for damage, not for parody, not to avoid the discovery of someone who should be hidden. not in order to. do something one respect to one's grandson. it's just a purely false statement about one's self. when did -- when is the first amendment value in that again? >> well, another value is the fact that -- the purpose ovlt first amendment was a limit on government power.
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it's -- our founders believe that congress -- the general principle doesn't get to tell us what we, as individuals, can and cannot say. >> well, of course they do in countless areas, the state does. whether you're talking about definition, trademark, perjury, all sorts of things. >> that's right, mr. chief justice. but in all of those examples, those are examples where we have harm attached to the falsehood. >> well, sometimes, the harm is just the impairment of governmental governmental purposes. how do you justify that? because the making of the false statement impairs a governmental investigation. and what is being urged here is that the making of this type of a false statement impairs the government's ability to honor
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valorous members of the armed forces. >> well, we believe there's a difference there, your honor. with respect to a thousand one, there's the substantial risk of em nent hae imminent harm. >> you suggested to us to apply strict scrutiny to all of those cases. why should 1001 pass strict scrutiny? and it seems to me you're proposing a test that would invalidate all of the laws on the books, regarding false statements. >> no, your honor. what we're suggesting is false statement logs do have a history in this country. and the court could recognize a historical kat goir of immineca government functions and perjury
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certainly falls into that category. >> do we give some message to congress as to whether there is a harm to govltal purposes? or do we just make it up ourselves. when congress passed this legislation, i assume it did so because it thought that the value of the rewards that these courageous members of the armed forces we're zefing, was being demeaned and diminished. by charlotteians. that's what congress thought. is that uterly unreasonable that we can't accept it? >> justice, it's not entirely clear what congress thought here because congress held no hearings on this. it made a broad, general finding that false statements -- >> it's a matter of kbhoen sense that common sense that it seems to me
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to demean the medal. >> wearing the met dal is a slightly -- >> well, i'm not so sure. the tinker case with the arm band? it's purely expressive speech, it seems to me. i think if you prevail here, that the wearing prohibition must also be in serious doubt. >> it may be or it may be in doubt under certain situations in where one is wearing a medal v . but certainly, congress has an interest in protecting nonexpressive purposes. >> i think tsz. if the whole purpose of the person who puts the medal on his tuxedo that he doesn't earn, that's pure purpose. >> it may be, your honor. but, again, we view it under
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eight different prism. >> why? it's expressive. one is i'm speaking through conduct and the other is i'm speaking through words. you wear the medal and you're saying i am a medal of honor winner. >> that's riekt. and, as i say, it may ultimately by the case that the court find e fiepds if, in fact, it's unconstitutional. >> so you think that the wearing of a military declaration that you vnt iearned eed that that' questionable? >> it may be. but, again, it would depend on the circumstances. >> would you g out on the street for everybody to say e see? >> if congress does not have a non-speech purpose for prohiblting the wear of the medals, than if it's strictly an expressive purpose, than, yes,
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there would be a significant first amendment problem. >> don't you think that's the case? there's no nonexpressive purpose that i can think of. >> and that very well may be. in this case, we're dealing with a content-base. >> 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 a arms do you think count and which harms don't count. would you go as far to say that only pecuniary harm counts? if you say that, thajn the classic case of emotional distress is going up to someone.
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so how do we determine which harms are sufficient? >> we believe the right way to look at this is you determined whether or not there is eminent harm or a significant risk of eminent harm to an individual or to a government function that result from the spooech. >> when you say eminent, what do you mean by that? >> i guess i'm suggesting the randemburg standard. >> well, if that's the standard, than most of the prosecution is for making false statements to a federal law enforcement officer are not going to survive, ra they? >> well, the issue is about the law. and the issue with a thousand one and those statutes, it's the substantial risk of eminent harm to the government that could
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result. >> then you're not talking about eminent harm. you're just talking about harm. >> well, when one lies to a government investigator, presumably, you're doing it in order to send them in the wrong direction. so their harm may not be there, but there's certainly a significant risk of harm that the government has the right to protect itself. and that's why we believe that's where you draw the line. and that's where it appears to have drawn the line in those categories of speech that it has said are unprotected. >> let's suppose that i agree with gertz that there is no constitutional value in a false stamt of fact. and the reason why we protect some false statements of fact is to protect truthful speech. so if that's so, is -- how is it
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that this statute will chill any truthful speech? what statute will this chill? >> your honor, it's not clear that it may necessary chill any truthful speech. we certainly concede that one typically knows whether or not one has won a medal or not. >> so, boy, that's a big concession, mr. libby. then you're saying you can only win this case is e if this court decides that the gertz statement was a kind of overstatement. an exaggeration. >> well, we do have the sitwrags where we believe the statute currently does cover being prosecuted for engaging in parody or satire or exaggeration. certainly there's nothing on the face of the statute to suggest that. >> but the government has said that's not how we made the
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statute and the court needs statutes to avoid a constitutional collision. so let's assume that we are not going to cover performances, satire. it's just a bald-faced lie. that's all that this covers. >> it's still our position that all speech is presumptively protected unless we go back to the historical category that the court has found historically as unprotected. and their falsity certainly has never previously been recognized by this kourts as being an unprotected category of speech. >> i'm soar ri. >> the government to argue that the speech division here is totally unprotected. i understand them to argue -- it's totally unprotected. i understand them to argue that it can be limited under its
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breathing space rationale. it's not within one of the categories of totally unprekted speech. you do have to analyze it under the first amendment and you analyze it to determine if it chills preblgted speech. >> i suppose i read the government's argument differently. i read it's entitled to at most limited protection. so the government seems to start from the presumption that it's not fully protected speech. where, as of course what we should be starting with is the presumption that it is fully protected speech. >> if i understood your argument, you're saying, historically, we have not protected false statements that cause harm. i think that's your argument. >> thaekt. yes. your honor. >> ork. okay.
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so we do prekt false statements, presumpively. but the historical, like defamation, are the ones that cause harm. so i go back to the question because you really haven't answered his question. you failed with the government process cases, although we could argue about whether that's protecting a process or prekting the government from the right to truthful information. that's a different issue. but the question is how do you deal with the intentional affliction of emotional distress. damage would require injury. and it's defined under what kind of injury? so tell me how you define harm in the nongovernmental situation, number one. and then tell me why that -- this situation doesn't fit that definition.
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>> in the situation of emotional stress, you are dealing with a mental distress that rumts from the false statement. so there's eminent harm as a result of -- that results in intentional affliction of emotional stretch. >> so why snt it the medal winners -- why snt that proper? >> i don't believe that sits into the same category of mental disstress that we look at. certainly, people are entitled to be upset by these false claims. i mean, i -- i'm personally upset by these false claims. but the fact that there's a certain level of upsetment doesn't mean that you're harmed
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in the sense of the intentional emotional distress tort and so what we're dealing with here is a non, instantaneous harm. now, the government has suggested -- there's no harm that results from a single claim. that mr. alvarez's falsehood did not cause harm to any individual. >> so what you're arguing is that we should determine that there are certain harms that are sufficient to allow the prohibition of a false stamt. and there are certain harms that are not, irrespective of the cig nif kansz of those harms. is that accurate? >> that's certainly part of it. we believe that there needs to be eminent harm. that it needs to be tar getted onto an individual or to government function. that it can't be the type of diffuse harm that the government says took place here. >> why not?
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-- >> because, after all, we're willing to protect the olympics committee when a false person is saying he's the olympics committee. it might deprive the o lichices committee of a penny. well, here, they're saying that to win this great medal. say the congressional medof honor, the highest award the military can give, you're deserving of the most possible, grandest possible respect. and we don't want you to have to think about somebody having taken that name falsely. so we will discriminalize it to to discourage some activity that undermines the very thought and purpose of giving the medal. all right? so, i'm just saying, in my mind, there's real harm. and there's real harm and yet i can think of instances where we do want to protect false information. and i want you to accept that as a given. that isn't my question.
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[ laughter ] >> my question is, if i'm right, that there are very good first amendment reasons, sometimes, for protecting false information. and if this also would cause serious harm, but the government is aiming after, are there? less restriblctive ways of goin about? and if so, what and why? >> there are. first of all, more speech. there's tons of fixed problem. if someone tells a lie rksz there's time for them to be exposed. and, in fact, that's what typically -- >> the government is going to hire people to follow, you know? is that realistic? i mean, when there's a sanction in place, you think twice before you tell the lie. but if there's no sanction, except you might be exposed, who's going to expose you? that sanction already exists and there's a lot of people, none the less, who tell the lie.
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you really expected the government to go around the country outing people who falsely claim military honors? >> justice, isn't that exactly what's happening right now with this law? because the law is on the books, the government is sending f.b.i. ajents out to invesz gait these al gagszs. how did the government find out about it? it's reported. individuals hear the statement and they think it may be false. they investigate it. and they'll conduct their own invest gaigss. so that's what happens. this's the whole idea of more speech. >> the threat of criminal prosecution mielgt dght discour from lying. who would never be caught?
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>> are there others? >> well, if you're never caught, than under the government's theory, no one has been armed. >> my theory is that it does hurt, the medal, the purpose, the obltive, 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. but what i'm trying to get to, i want as big a list as i can to think about what the less restrictive alternatives are. >> the military can redouble its efforts at honoring those who, in fact, are sbiet 8d to the awards. there was a congressional theory that the military has been laxed in awarding them medals. so that can be done. the government can publicize the names of true winners. it could create educational programs to let the nation know
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what it takes to win these awards. >> how about giving a medal of shame for those who have falsely claimed to earn the medal of valor. >> well, your honor, that's actually certain the government could do. >> oh, not under your theory. i mean, it's still a sanction for telling something that you say is protected under the first amerndment. whether you get six months or a medal of shame doesn't matter under your theory. >> well, there is a significant difference between a criminal sanction versus exposing them for what they are, which is sa liar. and mr. alvarez, whether or not he was sentenced to a krieccrim was still exposed for who he was, which was a liar. >> suppose the statute was amended as has been proposed to require an intent to obtain
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anything of value. >> that would turn the law into a fraud statute. and, of course, fraud is an unprotected category of speech. so that,certainly, would be a constitutional law. >> buff that would nt reach this speaker; is that -- that would nt reach out because he didn't obtain anything of value? >> well, that's -- i mean, that's not what we have here. what we do know is that mr. alvarez did not -- >> how do we know that? he was politically active, right? dubt it hoep the politician to have a congressional medal of honor. >> perhaps rksz your honor. there are certainly many people out there who consider that to kb a great thing. and to them, it might not mean a whole lot. but it seems to me that your willingness to say that the statute is valid so long as
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there's some benefit to the person who lies, it's an awfully big concession. >> again, if congress were to amend the law to require that it be done with the intent to obtain a thing of value, again, it becomes fraud. and fraud is something that the government does have the right to prosecute. >> very good. it has to be something of commercial value, right? it's not just praise and the higher esteem of your fellow citizens. that's not enough. you have to get penny out of it, right? >> as i understand the proposed amendment, it just says anything of nonday min mos value. >> it's just the basic deposition of fraud. >> yes. so if he makes this statement at
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a debate when he's running for office, then you can prosecute him. because getting the office is presumably something of value. it presumably has some pecuniary as% to it. . >> perhaps, your honor. and it may come down to how the courts ultimately charge a thing of value. it's not clear that simply trying to maintain a vote from somebody is necessarily a thing of value. obviously, if you promised to give up your votes in office in return for su port, that would be a little different. >> but what if it just gets the cheers of the crowd. he's up there saying i'm a congressional medal and they give him a parade down main street. is that something of value? >> it could be. in fact, again, it will come down to, over time, how that really gets. >> that's not the answer. the question is would the first
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amendment prevent that. >> that's a difficult question. >> that's sort of the question we have to answer here. >> i get that. [ laughter ] >> suppose what the person gets is a date with a potential rich spouse. would that be enough? >> when you get into the situation where you're considering it a date, i would not consider that a non-h nonda mas manner. >> it worked in the law now where we have similar statutes. and there's an additional requirement. you have to perform an act that
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asserts that the impersonator claims to have. what is that? is that enough to just not make it pure speech. and the things we worry about in the first amendment? there's another one that we have to falsely assume or exercise? powers, duties and privileges. those are ways statutes have of limiting this thing. how does that work. >> well, when you get into the issue of impersonation, then the court, perhaps, should be assessing it under the amount of imminent harm to a individual that can -- >> there's nothing to do -- it's a way of walling off things that are of concern under the first amendment. and what they use -- i've read you what they use. you know the language. it's written about in the briefs. and i just want to know how you would think about a statute that
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imported that kind of language, which is limiting language. >> it would be important to limit the language. we're supposed to start from the presumption that we have the right to say pretty much what we want to say. and then we start to limit it where. again. and i guess it goes, again, back to what this court said. is it one of these historically unprotected types of speech that is not entitled to constitutional protection? >> thank you, mr. libby. general, you have three minutes remaining? >> my only -- one of my questions is the slippery slope
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problem. can you address that? >> yes, your honor. we think the breathing space analysis does a very substantial degree of work in controlling what your honor is describing is a slippery slope problem. it's got to be narrowly drawn. it's got to mote all of those -- >> college degrees. >> well, i think i said in my opening statement that i actually think that's a way you could argue either way. i think there might be a substantial interest. >> how about extramarital affairs? the government has a strong interest in the sanctity of the family. so we're going to prevent everybody from telling lies about their extramarital affairs. >> in addition to -- this is the
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person's own experience. you either had one or you didn't have one. >> that ice right. and that's a hard case. but i do think with respect to the chilling effect analysis, you would, i think, have a great deal of officiating that statute. that's not the statute that we have here. this is a targeted statute that's designed to deal with -- >> the trouble is you can think of 10,000 instances that one candidate or another can bring up in a political campaign. we don't know what can come up, but i can easily think of examples. and if this is lawful and constitutional, then you have people in political campaigns suddenly worrying that the u.s. attorney is going to start coming in and indicting it. you can assume to get around this chilling step, but i'm less certain. >> that's why the breathing space analysis happens before it gets upheld.
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that it not have that kind of chilling effect. this statute doesn't. >> it seems to me that you're asking us to value the speech and con tekts. we're not talking about the effect of the speech and whether you can regulate that. you're asking us to say, you know, the guy who says he's a college graduate in a political campaign, that could chill political speech. so in that line and that context, you can't sanction. but you can sanction that in a different context on a dalt. i don't know, because on a date, it doesn't show political speech and it will induce a young woman to date someone who she thinks is more of a professional because that harms the parents. it harms the family. >> may i ask -- >> oh, yes. >> thank you. >> the

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