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| Falsity and the First Amendment: Implications of the Supreme Court’s ruling on Stolen Valor Posted: 09 Jul 2012 08:30 AM PDT
In the fourteen years that I practiced as a media defense lawyer before joining the Berkman Center, there was one sentence from one Supreme Court opinion that I learned to loathe above all others. It appears in Gertz v. Robert Welch, Inc. (1974) and reads as follows: “But there is no constitutional value in false statements of fact.” The court goes on to explain:
The primary reason that I hate this particular sentence is that it is quoted out of context by plaintiffs’ attorneys at one point or another in virtually every defamation action. Although the Court held that falsity itself does not advance society or the debate on public issues, it nevertheless went on — at the bottom of the very same page, mind you — to hold that there is nevertheless significant constitutional value in protecting certain falsehoods to ensure that publication of the truth is not chilled:
As a result, I experience a chill down my own spine whenever I hear of a law that purports to ban “false” speech of this category or that, and the Stolen Valor Act is no exception. But the Stolen Valor Act, which made it a federal misdemeanor to represent oneself falsely as having received a U.S. military decoration or medal, was meant to target knowing falsehoods. (Although the specific section that forbids these false statements does not in fact contain a knowledge requirement, let’s assume for the purposes of discussion only that the number of people who might be innocently mistaken about having received military honors is de minimis. Let’s also assume that the law would not be applied to target actors in dramatic productions, on the theory that the actors are not claiming to have received these honors themselves.) Both Gertz and the earlier landmark decision in New York Times Co. v. Sullivan tell us that even when discussing public officials, knowing or intentional falsehoods are not protected against defamation claims. And we have long prohibited people from falsely claiming to be police or other government officials. Yet on June 28 — the same day as its health care ruling — the U.S. Supreme Court, in a plurality opinion with a two-justice concurrence, affirmed the U.S. Court of Appeals for the Ninth Circuit in U.S. v. Alvarez, holding that the Stolen Valor Act is unconstitutional. And the reason is largely that notwithstanding that troublesome sentence in Gertz and subsequent cases (see Hustler Magazine, Inc. v. Falwell (1988), “False statements of fact are particularly valueless”), the Court recognized that it isn’t quite true that falsehood is always without merit. Justice Kennedy, in the plurality opinion, states, “The Court has never endorsed the categorical rule the government advances: that false statements receive no First Amendment protection.” Breyer goes further in his concurring opinion:
And rightly so. In a very fundamental sense, falsehoods and lies are integral to how we think as human beings. We see the world not only as it is, but as it might have been and as it could be. Without that capacity, people could do no more than react to stimuli; they could not compare the world they see to a different concept in their minds and exercise free will to choose what to do next. In that sense, all of human achievement is based upon the ability to believe in things that do not exist. That’s different than claiming that one’s own imaginings are true, of course, but (as Breyer’s comments indicate) the fact that falsity is integral to our thought is expressed in its role as an important tool in our everyday lives: We lie to each other not only for gain but to show compassion; sometimes we lie to ourselves to make life bearable; we use lies as a mirror for truth. We all have a responsibility not to use falsehoods to harm others or frustrate public discussion, but determining whether falsehood inherently lacks value is a matter that is beyond judicial determination. For that reason, I believe the Court was on the right track when, instead of leaving false speech outside the First Amendment entirely, it applied First Amendment scrutiny and determined whether there were significant harms being prevented by the Stolen Valor Act. Both the plurality and the concurrence recognized that existing bans on false speech that pass constitutional muster do so because the speech at issue causes concrete harm, whether tortious harm to individuals (e.g., from defamation, fraud, or trademark infringement), or injury to the function of government (e.g., through perjury, false statements to government officials, or false claims to be a government official). And although the plurality and the concurring justices disagreed as to what level of scrutiny to apply (the plurality applying strict scrutiny and the concurrence applying an intermediate “proportionality” approach), both found that the Stolen Valor Act failed the test. The plurality held that the government established a compelling interest in defending the integrity of military awards, but proved neither that false claims to military honors devalued public perception of such awards, nor that “counterspeech would not suffice” to prevent that harm. As Justice Kennedy writes, “The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right.” He also notes that many of the evils alleged could be prevented if the government were to maintain a public database of verified medal recipients. Justice Breyer similarly found that the Stolen Valor Act balanced speech against a “substantial countervailing objective,” but held that the objective could be achieved through less burdensome ways, such as requiring proof of harm as an element or limiting the statute’s reach to situations in which harm is particularly likely to occur. I am less convinced than the Justices that there is a compelling interest at stake here; the arguments in support of the law, in the briefing and elsewhere, seem to echo economic concepts of brand tarnishment (in terms of diluting public perception of military honors) or fraud on the market (in terms of positive treatment that an individual does not deserve). It strikes me as dangerous to import trademark and other commercial speech theories into non-commercial contexts as compelling government interests. Not only have we traditionally distinguished between the constitutional value of commercial and non-commercial speech, but bringing these concepts into the non-commercial realm threatens significant harm to concepts of personality and presentation of the self. If the law could get involved every time we overstate our achievements or put a positive spin on unfortunate incidents from our past, there are few of us who would be in a legitimate position to cast the first stone. And while military honors without doubt hold a special place in our society, I am less certain that protecting the “brand” of a particular medal is a compelling interest in the abstract, as opposed to preventing the exploitation of the medal for specific unauthorized purposes. Falsely claiming military honors is also significantly different from falsely claiming to wield government authority. If you claim to be a police officer, you can compel people to submit to authority you do not have, or induce trust that is unjustified in your ability to act in a dangerous situation. Falsely claiming to have won a medal might also induce trust and respect that is unjustified, but the impact on the public is substantially more vague; people are not bound to subject themselves to a decorated veteran in the way they must subject themselves to the exercise of power by a government official, nor do military honors represent a public notice of the ability to obtain government assistance in the same manner as a police officer’s badge. We might expect more or better of a decorated veteran than other citizens, and might treat them better as a result, but the harm is attenuated at best. That being said, I believe the result reached by the Court is correct. The recognition that false speech is entitled to some degree of First Amendment protection even apart from Gertz’s concern with providing breathing room for true speech acknowledges an important truth about how we live and communicate. And it puts a big dent in that sentence that I dislike so much. But as for Xavier Alvarez, the man who sparked this case by claiming to have received the Congressional Medal of Honor and of whom the plurality wrote in the first sentence of the opinion, “Lying was his habit,” this ruling should provide little comfort. “The remedy for speech that is false is speech that is true,” states Justice Kennedy and a century of First Amendment jurisprudence. There will be plenty of speech about Mr. Alvarez after this opinion; while falsehood might have some social value, if you tell enough lies your sins will find you out. This post, by Citizen Media Law Project director Jeff Hermes, originally appeared on the CMLP blog. Check the original post for full citations of case law. Photo by Zygia used under a Creative Commons license. |
| This Week in Review: Journatic and outsourcing local news, and Twitter’s tension with developers Posted: 09 Jul 2012 07:30 AM PDT
The Chicago Tribune just outsourced its hyperlocal TribLocal sections to Journatic, and it began investigating Journatic’s work for fake bylines. The Chicago Sun-Times, Houston Chronicle, and San Francisco Chronicle also reported fake bylines on Journatic stories in their papers, and the Sun-Times and the newspaper chain GateHouse ended their contracts with Journatic, though GigaOM’s Mathew Ingram reported that those contracts expired before the fake-byline story came out. Journatic’s CEO sent a memo rallying the troops and declaring that its aliases would be discontinued. The revelations pointed toward a larger discussion over how to do the tough work of making local journalism sustainable, summarized well by NPR’s David Folkenflik. Northeastern journalism professor Dan Kennedy said operations like Journatic’s “pink slime journalism” are a function of the fact that local journalism is difficult and expensive to do well, though the solution will ultimately come from the bottom up, not from cookie-cutter approaches. Free Press, meanwhile, urged us to demand better out of local news. But others saw outsourced local journalism (though without fake bylines, of course) as a viable part of the future of news: Mathew Ingram also made the point that local journalism is expensive and said centralized and automated news production has to be part of the answer. John Bethune of B2B Memes said the real problem at Journatic was that it was skeuomorphic — trying to make a new form (algorithmic and outsourced content) look like an old one (articles with bylines). “The Journatic screw-up was not a failure of new media, but a failure of nerve. New-media practitioners need to have the courage of their convictions, and look, not back, but steadfastly ahead.” Ingram echoed that point, urging an open mind toward Journatic in a follow-up post, and Kennedy responded that “not everything new should be embraced.” Reuters’ Jack Shafer looked more closely at the concept of the byline itself, tracing its history and concluding that Journatic’s fake bylines are an indicator that journalism’s attachment to bylines has gone a little too far. Twitter tightens its grip: In a pair of simultaneous posts, Twitter broke off its content-syncing partnership with LinkedIn and served notice to other Twitter third-party developers that the company wouldn’t be standing for apps that they feel closely mimic the “core Twitter consumption experience” on their own apps and website. All Things D’s Mike Isaac said that it makes sense for Twitter to tighten the reins on its service now that it’s growing and wondered how it might affect other partners such as Flipboard. Talking Points Memo’s Carl Franzen asked the same thing about several companies whose services are based predominantly or exclusively on Twitter.
GigaOM’s Mathew Ingram issued a warning to Twitter, noting that it’s upset its developer community before, and similar moves have backfired for MySpace and Digg. Tech entrepreneur Dalton Caldwell lamented the fact that Twitter hadn’t chosen an API-centric route years ago, and Ingram explored the question of whether a media company such as Twitter could be both an open platform and a destination. In another post, Ingram looked at the feasibility of an open alternative to Twitter, concluding that it would be technically possible, but not likely to draw Twitter’s critical mass of users. “In the end, many users don't really seem to care whether a system or network is open or not — or at least not enough of them to make a difference,” he wrote. Another key piece of this puzzle came at about the same time, when The Wall Street Journal reported that Twitter is finding success selling ads for mobile devices, a platform that has frustrated Facebook and Google’s advertising teams. The Financial Times likewise reported that Twitter has shifted to a truly mobile-first mindset, and Business Insider’s Pascal-Emmanuel Gobry argued that that mobile-first nature, along with the fact that Twitter has the same ads on desktop and mobile, bodes well for Twitter’s mobile business.
The future of News Corp.’s papers: We’re continuing to see the repercussions from News Corp.’s decision two weeks ago to split into two separate news and entertainment media companies. The Wall Street Journal gave the details of the decision, and David Carr of The New York Times explained why Rupert Murdoch had agreed to make the deal — his papers, with the exception of Dow Jones’ Wall Street Journal, are declining quickly, and “his long-running romance with print will no longer be indulged just because he's the boss.” While the Times’ Amy Chozick noted that the Murdochs are still firmly in control of the two companies (much to the annoyance of some investors), Peter Jukes of The Daily Beast said the split will hasten the end of the Murdoch dynasty. And though Murdoch praised the potential of his newspapers, the Times reported that without him directly heading the papers up, they’re in a particularly vulnerable spot. Forbes’ Jeff Bercovici said the Journal will be well preserved as the company’s crown jewel, but the outlook is much worse for the New York Post. The Daily Beast’s Alex Klein expected the Journal to be remade in the image of its business news rival, Bloomberg. Reuters’ Felix Salmon focused on the TV side, arguing that TV news is more part of the entertainment industry than the news industry, and that print media is converging on the one thing it does well — live breaking news coverage. Ad Age’s Jeanine Poggi wondered whether other conglomerates like Time Warner will also spin off their print properties.
CNN’s error and process journalism: Media observers also spent some time last week talking about CNN and Fox News’ Supreme Court reporting error (described by SCOTUSblog in meticulous, fascinating detail), wondering why it happened and what that might mean about the state of news. Poynter’s Steve Myers pinned the blame on “process journalism,” the philosophy of publishing stories as you piece them together and updating them with corrections. Myers said process journalism makes more sense in breaking news stories, not “appointment” stories like a Supreme Court decision. In a response, process journalism advocate Jeff Jarvis said this wasn’t really process journalism, and “The real lesson here is that the scoop is and always has been a dangerous act of journalistic narcissism.” GigaOM’s Mathew Ingram agreed with Jarvis on the diminishing value of the scoop and the idea that this wasn’t process journalism, and The Washington Post’s Alexandra Petri also said this piece of news wasn’t worth a scoop. Mike Masnick of Techdirt argued that this error shouldn’t be cited as an indictment of the real-time news era. Poynter’s Craig Silverman broke down the error in a bit more detail, attributing it in part to a “collision of complexity and immediacy.” Reading roundup: A few other stories and pieces to get to from the past holiday week: — WikiLeaks began releasing its 2.4 million Syria-related emails last week, and while it initially named the AP as one of its collaborators, the AP was removed from the collaborator list and insisted it didn’t collaborate with WikiLeaks. The Atlantic’s Alexander Abad-Santos questioned how everyone was going to sort through all the documents, and elsewhere, Agence France-Presse explored whether the U.S. has a case against WikiLeaks’ Julian Assange. — The Lab’s Justin Ellis wrote an interesting piece looking at The New York Times’ new Chinese-language site, but the project’s already faced a setback, as its account on the Chinese Twitter-like site Sina Weibo has been shut down. — Finally, a few cool articles worth catching up with as you start your week: Here at the Lab, Ken Doctor wrote about aggregation apps like Pulse and the way metrics and subscription plans translate into money, and former GOOD magazine editor Ann Friedman offered some wise advice to young journalists and j-school grads. And tech blogger Erick Schonfeld argued that infographics are broken and proposed an alternative way of creating them. Obama iPad photo illustration by Gary He. |
The Next Web’s Matthew Panzarino 
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