False Campaign Speech and the First Amendment: A Hint from the Stolen Valor Oral Argument

Courts have divided on the constitutionality of various laws punishing false campaign speech.  The “Campaigns” chapter of the Election Law casebook discusses these cases—I will soon be at work on revising it for the next edition.

So I was intrigued when I read the following in Adam Liptak’s report on the Supreme Court oral argument in the Stolen Valor case: “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.”  If the eventual opinion in this case reflects whats in the transcript, it suggests that many of these laws may face new constitutional challenges.

Here’s the transcript, and here is the first relevant exchange, with Justice Kagan:

JUSTICE KAGAN: General, what about these State statutes — there are more of them than I thought that 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?

GENERAL VERRILLI: I think that those kinds of statutes are going to have a lot harder time getting through the Court’s “breathing space” analysis because the context in which they arise is one that would create a more significant risk of chill

-JUSTICE KAGAN: Well, suppose it says demonstrable falsehoods about yourself


JUSTICE KAGAN: — just about your qualifications, about what you’ve done in your life, your — you know, 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.

GENERAL VERRILLI: Yeah. I think under the Court’s “breathing space” analysis, because of the political candidate context, those statutes are going to pose a particular risk of chill, that this statute does not pose because this is a statute about verifiable factual falsehoods.

JUSTICE KAGAN: I guess I don’t understand why it would be more chilling in the one case than in the other. They are the same kind of statement. And one knows the same sorts of things about oneself.

GENERAL VERRILLI: Well, I think the idea would be, in a situation like that one, the government’s power and authority is being trained specifically on the political process and statements in the political process, and this is — this is quite different. This is a statute that says -

JUSTICE KAGAN: Well, I assume that that would be in the case of the State statutes because the State feels that it has a specially important interest in maintaining the political sphere free of lies.

GENERAL VERRILLI: 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? And a statement that is about yourself only, not about somebody else, and is supported by a quite strong particularized interest in ensuring the integrity of the military honor.




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