I went in CERTAIN that we would lose, and now after the hearing….guardedly optimistic,
The day started at 4am when the alarm went off and VT Woody dove for cover. He slept on the floor, there was no spooning. We SP’d at about 4:15 and made it to the court by 4:20. And we were 4th and 5th in line. Turns out we could have waited until 5:30 and made it in, but better safe than sorry.
We waited with 3 guys, none of whom were on our side. The 1st guy was there for the Thomas Jefferson First Amendment Center (or somesuch) and had been there sleeping on the pavement since 1:30. Good dude, seriously sharp. Wish he was on our side, but so it goes. Another dude’s fiance was an attorney of record for Alvarez, and a third chap was a clerk for the 10th circuit judge who dissented against our position. Anyway, VT Woody found it odd we could all discuss the case without getting too exorcised. That’s just the way it is in the law. You try not to get too passionate and emotional.
However, when we got inside, we met Doug Sterner, our longtime TAH friend, and he was escorting an MOH guy. I believe it was Brian Thacker, but not entirely certain.
I won’t go into too much detail now, but the poor dude defending Alvarez got absolutely bashed up there. Just painful. By the end he conceded that there would be no chilling effect if they upheld SVA, and when he tried to assert that there was no harm done, he got absolutely slapped silly by Justice Breyer, who should have been his most solid supporter. Will go through the transcript later to get some stuff from it, but If I had to guess, gun to my head, I would say we have Alito, Roberts, Thomas, Kennedy and lose Sotomayor and Kagen. The others seemed to be in the fight on both sides.
UPDATE: From the transcripts….
(Note, some of these might not make sense out of context, but I identified these as potentially interesting colloquies. At least read the bolded one….)
JUSTICE SCALIA: I believe that there is no First Amendment value in — in falsehood.
CHIEF JUSTICE ROBERTS: What is — what is the First Amendment value in a lie, pure lie?
After a convoluted answer that cited “personal autonomy” which Roberts rejected, the lawyer went on to Mark Twain, which Roberts pointed out was only a story, a book. And then Alito weighed in…
JUSTICE ALITO: Do you really think that there is — that the First Amendment — that there is First Amendment value in a bald-faced 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 Rhodes scholar, I won the Nobel Prize. There’s a personal - the First Amendment protects that?
MR. LIBBY: Yes, Your Honor, so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.
GENERAL VERRILLI: And this — this is a case in which one of the harm that justifies this statute is the misappropriation of the government-conferred honor and esteem, and that is a real harm and a significant harm, and there is also the particularized harm of the erosion of the — of the value of the military honors confirmed — conferred - by our government; and those are particularized harms that are real; and the kind of speech that this statute regulates are a genuine threat to those harms in a way that, looking backwards, looking and anchoring this argument in the tradition of this Court’s precedents, this is a type of calculated factual falsehood.
JUSTICE KENNEDY: Well, it seems to me your best analogy is the trademark analogy, Olympic case, et cetera. You put that in a rather minor — not as an afterthought, but it’s a secondary argument in your brief. It seems to me it’s the strongest one. The whole breathing space thing almost has it backwards. It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don’t think that’s our tradition. On the other hand, I have to acknowledge that this does diminish the medal in many respects.
SOTOMAYOR: What I’m trying to get to is, what harm are we protecting here? I thought that the core of the First Amendment was to protect even against offensive speech. We have a legion of cases that said your emotional reaction to offensive speech is not enough. If that is the core of our First Amendment, what I hear, and that’s what I think the court below said, is you can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming fraudulently that they got one. They don’t think less of the medal. We’re reacting to the fact that we’re offended by the thought that someone’s claiming an honor they didn’t receive. So outside of the emotional reaction, 3 where’s the harm? And I’m not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.
JUSTICE SCALIA: Do we give some deference to Congress as to whether there is a harm to governmental purposes or do we make it up ourselves? When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished. By charlatans. That’s what Congress thought. Is that utterly unreasonable, that we can’t accept it?
JUSTICE KENNEDY: Well, it’s a matter - it’s a matter of common sense that [the actions of phonies) seems to me that it demeans the medal.
JUSTICE ALITO: 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 harms you think count and which harms don’t count. Would you go as far as was suggested earlier to say that only pecuniary harm counts?
JUSTICE ALITO: It seems to me what you’re arguing is that we should determine that there are certain harms that are sufficient to allow the prohibition of a false statement and there are certain harms that are not sufficient, irrespective of what judgment Congress made about the significance of those harms. Is that — is that accurate?
MR. LIBBY: That’s certainly part of it. I mean, we believe that there needs to be imminent harm, that it needs to be targeted harm to an individual or to — to government function, that it can’t be the type of diffuse harm that the government goes to place here.
JUSTICE BREYER: My theory is that it does hurt the Medal, the purpose, the objective, 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. I just ask you to assume that for purposes of argument, because what I’m trying to get to is I want as big a list as I can to think about of what the less restrictive alternatives are, or might be.
About the chilling effect.
JUSTICE KAGAN: Mr. Libby, let’s suppose that I agree with Gertz that there is no constitutional value in a false statement of fact, and the reason why we protect some false statements of fact is to protect truthful speech. So if, if that’s so, is — how is it that this statute will chill any truthful speech? What truthful speech will this statute chill?
MR. LIBBY: Your Honor, it’s not that it may necessarily chill any truthful speech. I mean, it’s - we certainly concede that one typically knows whether or not one has won a medal or not. We certainly — we concede that point.
JUSTICE KAGAN: So, boy, I mean, that’s a big concession, Mr. Libby.
CHIEF JUSTICE ROBERTS: I suppose it might have something to do with, whether called collateral or not, I mean, I would think the concern in the midst of a political campaign is you have the U.S. attorney or the deputy district attorney bringing a — filing a prosecution of someone 2 weeks before the election saying, you lied about this or that and maybe there would have to be a deposition or maybe there would have to be a trial. Nothing like that is involved here.
Art I, Section 8 Argument…
JUSTICE GINSBURG: Did the military — did the military act for this? You’re claiming there’s a special interest in seeing that a military honor is not debased.
GENERAL VERRILLI: It did not, Justice Ginsburg, but under Article I, section 8, Congress has substantial authority to regulate our armed forces, get substantial deference. It’s not unlike the statute that the Court evaluated in the FAIR case in that regard, which was not a statute that the military — that the military asked for, but Congress nevertheless was given substantial deference.
JUSTICE SCALIA: Did the Commander in Chief sign that, that legislation?
GENERAL VERRILLI: Yes, he did, Your Honor.