California SLAPP Law

The “slippery slope” argument is often dismissed with disdain, but seemingly always by the people willing to turn a blind eye to reality.

When arguing an appeal, I often use an extreme example of what could occur should the court fail to find in my client’s favor. A justice will sometimes seek to counter my example by stating that such an extreme result is unlikely, but that beautifully makes my argument. “Unlikely” is not the same as impossible, and if the best that can be argued is that the result is unlikely, that means it is possible, and the policy must be considered in that light.

This is especially true as regards the First Amendment. For every policy reason one might offer to justify a limitation on the freedom of speech, I can counter with an example of how that limitation will be abused. The facts of United States v. Alvarez, 567 U.S. 709, illustrate this point.

The case involved a man by the name of Xavier Alvarez (“respondent”). As set forth in the opinion of the court, Alvarez had a propensity to spin tall tales. “He lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.”

The facts and arrest.

In 2007, respondent attended his first public meeting as a board member of the Three Valley Water District Board. He introduced himself as follows: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” None of this was true. As the Court put it: “For all the record shows, respondent’s statements were but a pathetic attempt to gain respect that eluded him. The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.”

Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of Honor at the meeting. The United States District Court for the Central District of California rejected his claim that the statute is invalid under the First Amendment. Respondent pleaded guilty to one count, reserving the right to appeal on his First Amendment claim.

In turn, the United States Court of Appeals for the Ninth Circuit found the Act invalid under the First Amendment and reversed the conviction. After certiorari was granted by the Supreme Court, in an unrelated case, the United States Court of Appeals for the Tenth Circuit, found the Act constitutional. So there was now a conflict in the Courts of Appeals on the question of the Act’s validity.

A little history.

Congress, over a century ago, established an award so the Nation could hold in its highest respect and esteem those who, in the course of carrying out the “supreme and noble duty of contributing to the defense of the rights and honor of the nation,” have acted with extraordinary honor. And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

The issue presented by this conflict was therefore relatively straightforward. In the interest of a legitimate government objective, can the First Amendment’s protections be curtailed?

The Government argued that the criminal prohibition is a proper means to further its purpose in creating and awarding the Medal. When content-based speech regulation is in question, however, exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment.

Here is how the Court resolved these competing interests. Read the rest of this entry »