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Litigation: The Supreme Court affirms the First Amendment right to tell lies

The high court’s ruling in United States v. Alvarez is another arrow in the quiver of defamation defendants’ constitutional defenses

George Washington’s famous quote, “I cannot tell a lie,” has been debunked by historians as an apocryphal story about the value of truth-telling that (ironically) was likely made up by a biographer shortly after the late president’s death. Whether or not President Washington’s parable has any basis in fact, on June 28 the Supreme Court took aim at the moral of the story. In United States v. Alvarez, the court held that, even if Washington never wanted to tell a lie, under the First Amendment, he (and all the rest of us) certainly had the right to do so. Even one about chopping down a cherry tree.

In Alvarez, the court considered the constitutionality of the Stolen Valor Act, which made it a crime to falsely claim to have won military honors. Violators faced fines, imprisonment or both—and that went double when the Congressional Medal of Honor was involved. Xavier Alvarez, a man whom the court said made “lying…his habit,” put the statute to the test when he falsely said, during at a public meeting, that “Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

The decision in Alvarez counsels that, in the defamation context, mere falsehoods cannot be punished, consistent with the constitution, unless the plaintiff can prove that the statement was also defamatory. In so ruling, the court appeared to recognize yet another constitutional impediment for plaintiffs attempting to bring successful defamation actions. Previously, in a line of cases beginning with the landmark New York Times Co. v. Sullivan and culminating in Philadelphia Newspapers v. Hepps,  the court ruled that the First Amendment requires libel plaintiffs, in certain circumstances, to prove publisher fault and the truth of the statement at issue. Under these cases, the other elements of a libel claim, including that a statement’s content must be defamatory, were merely requirements under the common law. The Alvarez holding, however, gives defamation defendants the additional argument that the First Amendment, and not just the common law, also requires proof of defamatory meaning. It may also open the door for courts to find, as they have for the other constitutionalized defamation elements, that the burden of proving defamatory meaning is on the plaintiff, and even that the burden can only be met with clear and convincing proof.

The real George Washington—who played an instrumental role in establishing honorary badges of distinction for U.S. military service—was invoked by the dissent to question the court’s ruling. According to the dissent, in 1782, when he was leading the Continental Army, then-commander Washington issued a military order saying that anyone with the “insolence to assume” a badge that he had not actually earned would be “severely punished.” What the dissent failed to mention was that this order was issued nearly 10 years before the First Amendment was ratified in 1791 and thus well before Washington became the first president charged with upholding its protections for free speech.  

Contributing Author

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Dori Ann Hanswirth

Dori Ann Hanswirth is a partner with Hogan Lovells in the New York office. She handles a wide range of civil litigation and focuses on...

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Contributing Author

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Theresa House

Theresa M. House is an associate with Hogan Lovells in the Litigation, Arbitration, and Employment, Content & Designs, and Media Law Groups in the New...

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