Eugene Volokh's Blog, page 2609
February 24, 2012
Posthumous Baptisms
I find it hard to get upset about "posthumous baptisms" by Mormons of Jews, whether Holocaust victims or otherwise.
Either the Mormons are right about their theology, or they're wrong. If they're right, then the posthumous baptism will do good. If they're wrong (and, being not a Mormon, I by definition think they are wrong, or else I'd be a Mormon), then the baptism will have no effect whatsoever: It is just some people going through some ineffectual — by hypothesis — rituals in their own temple, and I don't see what it should be to me that those rituals use the names of (say) my late relatives, however much I love those relatives.
I suppose if someone's theology was that Mormon baptisms did have metaphysical effect, but a bad effect (e.g., made the subject go to Hell), then that person would understandably object to those baptisms. But as best I can tell, that's not Jewish theology — the Jewish religious view is that those rituals have absolutely no consequence, temporal or spiritual.
Nor do I see anything particular ill-mannered about this. True, the baptisms rest on a certain form of arrogance: The Mormons think they know God's will better than others do, and think that it's better for a soul to be baptized Mormon rather than to remain Jewish (assuming for purposes of discussion that such a statement can make sense). But that isn't much different from the normal view of most religious people that their religious view is right and those that disagree with it are wrong — and, again, it's a sort of arrogance that has no practical effect on anyone, living or dead, other than the Mormons themselves.
Now apparently Mormon authorities had said they wouldn't do this [UPDATE: though some say no such promise was made], so one could fault them simply for breaking their promise. But given that the promise [UPDATE: if there is one] is about something that's so inconsequential, I don't see why we should be that terribly upset about this. If the Mormons want to remotely baptize my soul or my ancestors' souls, they can feel free to do so — I just don't see what it could possibly mean to me or to my loved ones.
The Irrelevance of Anti-Sharia Laws to the "Zombie Mohammed" Case
As I note below, I highly disapprove of the judge's comments in the "zombie Mohammed" affair. But the suggestion that anti-Sharia laws would help avoid this (see also here) doesn't make much sense to me.
This is not a situation where the judge "applied Sharia law" in any normal sense of the phrase. The judge claimed that he simply didn't find enough evidence against the defendant. Perhaps the judge was biased against the victim because of the victim's anti-Muslim speech, but an anti-Sharia law wouldn't have helped avoid that. More broadly, a law banning judges from "consider[ing] … Sharia Law" (in the words of the Oklahoma anti-Sharia amendment) wouldn't keep judges from concluding that someone who insults members of other religious groups should be admonished, punished, or even stripped of the right to legal protection — they would just conclude this based on their own notions of refraining from offending other groups.
Even a judge who wants to give a break to a defendant who attacks an alleged blasphemer, on the grounds that the defendant comes from a culture where such blasphemy is illegal, could do that without "consider[ing] … Sharia Law." He could just consider the actual practices of the foreign country, just as an immigration judge who gives asylum to a convert from Islam who faces a possible death sentence for apostasy back home could make an observation about actual practices in the foreign country without "consider[ing] … Sharia Law."
The same is true with regard to the rightly infamous New Jersey trial court decision accepting a cultural defense with regard to nonconsensual sex in a domestic restraining order case. (I might be mistaken, but I think this blog was the blog that first reported on that case.) The court there did consider the Muslim defendant's religious beliefs, but no more so than a court would consider a claimant's religious beliefs when he seeks a Title VII-based religious exemption from an employer's no-headgear policy. The problem in the New Jersey case wasn't that the court considered the defendant's Islamic religious beliefs, but what it did with its conclusion regarding those beliefs.
As posts such as the one about the zombie Mohammed, about the New Jersey case, and about a wide range of other controversies show, I certainly don't approve of people's religious beliefs — including Islamic religious beliefs — being used as a justification for violating others' rights. But anti-Sharia laws don't solve those problems, and instead risk creating unnecessary problems of their own.
Pasquinade
I just learned this term, and in a rather unusual way — I saw its Russian equivalent in a Russian translation of an article of mine. (The translation was by someone else, but I'm proofreading it right now.) The Russian word, which I also hadn't known, is пасквиль, and the English analog is pasquinade. What does it mean? You can find the answer here. You can also see the word in action in this First Circuit opinion, which is written (unsurprisingly) by Judge Selya, who is known for liking such obscure — and sometimes even sesquipedalian — terms.
Letting People Get Away With Attacks on Offensive Ideological Expression
The incident in which a judge dismissed charges against a Muslim who attacked a "Zombie Mohammed" parader — possibly because of the judge's expressed anger at the parader's expression — reminded me of this episode from 1990 (New York Times):
The Louisiana House passed a bill today that would lower to $25 the fine against those who assault people who burn the American flag. The House voted, 54 to 39, to waive the normal aggravated-battery penalties of six months in jail and a $500 fine in cases in which flag-desecrators are attacked.
I'm glad to say that the bill was never enacted; excusing attacks on those who insult ideological symbols is wrong whether the symbols are religious or political.
Prisons, Privatization, and the Elusive Employee-Contractor Distinction
I've just sent out my latest paper, Prisons, Privatization, and the Elusive Employee-Contractor Distinction. [UPDATE: You can find it here on SSRN.] Here's the introduction:
Critics of private prisons often argue that privatization is inappropriate because of inherent differences between the public and private sectors. There are, of course, plenty of arguments that focus on empirical issues—on the one hand, "mere accounting" concerns like whether private prisons are cheaper; on the other, larger questions like whether private prisons mistreat their inmates. But the "inherent" critics use a different sort of discourse, one that supposedly transcends contingent, empirical claims, instead staking out a position based on high-level political or moral theory, the purposes of criminal punishment, liberal legitimacy, liberty and dignity, symbolism and social meaning.
Thus, criminologist John DiIulio has written:
[T]o remain legitimate and morally significant, the authority to govern behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. . . . The badge of the arresting policeman, the robes of the judge, and the state patch on the uniform of the corrections officer are symbols of the inherently public nature of crime and punishment.
These concerns are echoed in the law as well. In 2009, the Israeli Supreme Court ruled that prison privatization violates "the constitutional rights to personal liberty and human dignity of inmates who are supposed to serve their sentence in that prison. This is because of the actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise."
Alon Harel and Ariel Porat argue in a recent Cornell Law Review article:
[C]ertain tasks[, particularly tasks involving the infliction of violence, such as criminal sanctions,] . . . must be performed by public officials not because public officials are better at performing them (or can perform them more cheaply) but because the identity of the agent who performs these tasks is considered to have an intrinsic value. . . . [T]his view is grounded in foundational intuitions concerning political legitimacy.
And Mary Sigler has similarly recently argued that private prisons implicate "the nature and justification of punishment in a liberal democratic polity":
Punishment under law is a profound exercise of state power the meaning and justification of which depend on the social and political institutions that authorize it. In a liberal state . . . punishment is inflicted for public wrongs in the name of the people. . . . The delegation of punishment through prison privatization attenuates the meaning of punishment in a liberal state and undermines the institution of criminal justice.
These aren't just throwaway paragraphs in otherwise empirical pieces. Sigler's and Harel and Porat's arguments avoid empirics entirely. And the Israeli Supreme Court, in invalidating private prisons, declined to consider their real-world functioning—in fact, explicitly assuming that, as between public and private prisons, "the term of imprisonment . . . is identical and . . . the violation of . . . human rights that actually takes place . . . is identical."
The Israeli Supreme Court's assumption suggests a simple hypothetical implicit in many of these arguments. Even if switching from public to private provision didn't change any actions in the world, and even if nobody cared whether provision is public or private—so these arguments imply—privatization would still be illegitimate.
I believe that this line of attack is generally unsound. For purposes of this Article, I don't deny that, as a matter of political theory, only the state should punish. But the argument that the provision of all these services must therefore be undertaken by public actors—by state employees rather than by private contractors—misunderstands what it means for the state to act.
"The state" isn't the president or governor; it's not a legislator, or the set of all legislators, or even the set of all government employees. It's a network of relationships among people. An important network, a real network, a network whose workings perhaps lead to politically legitimate decisions—but still just a network, independent of, and not identified with, any person. Like friendship or parenthood or the corporation, it's abstract.
And yet, to treat prisoners well, badly, or any way at all, one needs a body: fingers and hands to grab people and pull triggers and press buttons; perhaps feet, eyes, a brain. A state needs a corporeal manifestation to do anything in the world.
Fortunately, there are plenty of potentially available bodies—300 million at home and 7 billion if we cast a wider net, to say nothing of K-9 police dogs. It turns out, though, that—given the assumptions of modern liberal society—all of these come from the private sector. We're born in the private sector, and we don't work for the government or pursue its goals by default. The government can convince us to work for it by appealing to our sense of duty, by forcing us, or by paying us money. Modern liberal societies generally prefer voluntary service to compulsory service, and duty can only go so far, so people who do things for the government are generally paid to do so.
In short, government can only "act" by turning to people outside of government. It doesn't just need agents—it has no physical existence without them. And these agents, by and large, are attached to it by means of market transactions. Sometimes these transactions are called "employment contracts," and the agents become "employees"; sometimes the process is called "contracting out," and the agents become "contractors."
Is there any reason for us to distinguish between employees and contractors? Yes, there is. As long as you can't specify in complete detail what your agents should do, as long as you can't monitor everything they do, and as long as enforceability is imperfect, your agents will have some freedom to serve their own agenda at the expense of your own, whether that agenda involves being lazy or being overzealous or cutting corners. Different types of contracts—for instance, flat per-year salary vs. flat per-prisoner-day compensation, civil-service employment vs. hiring by auction—lead to different incentives; and different incentives induce different actions.
Thus, one can argue (rightly or wrongly) that private prisons cost no less, provide worse-quality confinement, and are less accountable than public ones. One can argue that private prison firms might lobby for stricter criminal justice policies or act to prevent their inmates' early release or that they might use campaign contributions or other illegitimate means to obtain contracts. One can complain that private prison construction can be used to circumvent the requirement that voters approve bond issues, or that privatization will represent a shift away from union wages and civil-service privileges. One can even argue against prison privatization on the ground that it's too efficient—so efficient that it (undesirably) results in more incarceration. (Similar themes run through the entire literature on privatization: critics argue that privatization is economically inefficient; it worsens distributional inequalities in society; it leads to the underprovision of public goods; it reduces accountability; it increases violations of human rights; it distorts the results of the democratic process; it is plagued with market failures.)
These anti-privatization arguments may be right or wrong. But they all have a few things in common. They're contingent, not inherent. They're based on the real-world consequences of different modes of contracting, rather than assigning any inherent importance to the employee/contractor distinction per se. These consequences could be monetary, or they could relate to the protection of human rights, or they could be based on nothing more than some people's subjective dislike of privatization. But they all focus on how privatization affects people or things in the real world. And they're all susceptible to empirical data, or even to theoretically well-informed speculation on how we expect people to act in different institutional settings.
It's therefore not surprising to find that many of these arguments are deeply contested, because they depend on messy data and contingent facts. For instance, before the Israeli Supreme Court, privatization opponents pressed the argument that the private prison legislation should be struck down because human rights violations would be more severe in private prisons. But the Israeli Supreme Court, in rejecting that line of attack, wrote that, while these concerns were "not unfounded," there was "no certainty that this [would] occur" and that "the comparative figures [were] not unambiguous." Similarly, an analysis of the empirical literature on prison privatization by Douglas McDonald and his co-authors—one that was not at all positive about private prisons—concluded, fairly mildly, that there was no strong evidence that private prisons performed better than public ones and, more generally, that the quality of existing studies is generally insufficient to draw strong conclusions about comparative prison quality.
These arguments are messy, because they depend on facts about the world that could go one way or another; one's conclusions are always tentative and subject to revision when the next study comes out. But these are the sorts of messy arguments we should be having, rather than arguments that attach dispositive importance to labels like "the state" and "the private sector."
Both in-house provision (that is, by employees) and contracted-out provision can be said to be "the state acting," since both employees and contractors are committing to do what the state tells them to do (subject to a contractual relationship of some sort). Or both can be said to be "private parties acting," since both employees and contractors are private people who potentially have their own agendas and often have the discretion to act contrary to the wishes of their principal. But, whether one favors or opposes privatization, what we can't say is that one of them is the state and the other is a private party.
February 23, 2012
Charges Dismissed in Pennsylvania Prosecution for Attack on "Zombie Mohammed" Atheist Parader
PennLive.com reports on this case, in which Talaag Elbayomy was accused of attacking a man who was marching in a Halloween parade (alongside a "zombie Pope"), and shouting "I am the prophet Mohammed, zombie from the dead" [UPDATE: and apparently carrying a sign that said "only Muhammed can rape America"].
The judge concluded there wasn't enough evidence to convict Elbayomy of the crime, and it's possible that there was indeed inadequate evidence. A police officer reports that Elbayomy had admitted that he grabbed the parader and tried to grab his sign; but it's possible that the judge found this evidence to not be credible enough to prove guilt beyond a reasonable doubt. Moreover, it appears that Elbayomy was prosecuted for criminal harassment, which requires an "intent to harass, annoy, or alarm," and a mere physical attack with an attempt to grab a sign might or might not qualify, see the pen-grabbing discussion in this case. The acquittal itself might thus be justified, depending on exactly what evidence was introduced.
But the worrying thing is what the judge (Mark Martin) seems to have said at the trial, based on what appears to be a recording of the hearing: The judge — who stated that he (the judge) was himself a Muslim and found the speech to be offensive — spent a good deal of time berating the victim for what the judge saw as the victim's offensive and blasphemous speech, which seems to raise a serious question about whether the judge's acquittal of the defendant was actually partly caused by the judge's disapproval of the victim. Consider, for instance, this statement, at 4:45 in the video (which apparently includes an audio recording of the trial):
Then what you have done is you have completely trashed [Muslim observers'] essence, their being. They find it very, very, very, offensive.
I'm a Muslim, I find it offensive. I find what's on the other side of this [sign] very offensive. But you have that right, but you're way outside your bounds of first amendment rights.
Likewise, earlier in the audio recording on the video, at around 2:00, the judge says,
Having had the benefit of having spent over 2 and a half years in predominantly Muslim countries I think I know a little bit about the faith of Islam. In fact I have a copy of the Koran here and I challenge you sir to show me where it says in the Koran that Mohammad arose and walked among the dead. I think you misinterpreted things. Before you start mocking someone else's religion you may want to find out a little bit more about it it makes you look like a doofus and Mr. [inaudible] is correct. In many other … Arabic speaking countries … something like this is definitely against the law there. In their society in fact it can be punishable by death and it frequently is in their society.
If anyone has more details on this incident, I'd love to hear them. American Atheists has a post about this at Opposing Views.
Note that, since the judge concluded that the prosecution didn't introduce enough evidence against the defendant, the Double Jeopardy Clause bars a retrial, so I don't think the state can appeal.
UPDATE: What seems to be the entire audio of the hearing is here; the video from the parade is here.
Baptists and Bootleggers
In an article several years ago I noted several of the unusual bedfellows made between certain industries and environmental groups:
The presence of these "gains to trade" politics may explain the otherwise puzzling financial support of industry for environmental interest groups. For instance, in recent years members of the waste treatment industry have pumped hundreds of thousands of dollars into the coffers of various environmental advocacy groups, including the National Audubon Society and the National Wildlife Federation. Indeed, the Sierra Club has recognized that "the commercial waste industry has an interest in improving regulations sufficiently to drive mom-and-pop operations out of business." Of course, the waste treatment industry also is aware of these potential gains to trade. Oil companies, including Atlantic Richfield and Chevron, contribute to environmental groups such as the National Audubon Society, who lobby to restrict opening new areas for drilling, thereby keeping new supplies off the market. As these examples illustrate, there are ample gains to trade between environmentalists and polluting industries, and they are usually exploited.
Now comes the emerging story of an alliance between leading environmental groups and the natural gas industry to advocate for the elimination of one of natural gas's leading competitors:
Just four years ago, shale gas king Aubrey K. McClendon told shareholders of Chesapeake Energy that "finally, we made some new friends this year."
The chief executive sketched a vision of working hand in hand with "leading environmental organizations" on issues "where our interests might be aligned." He said, "We believe this collaboration is unique in the industry and will benefit both Chesapeake and these environmental organizations for years to come."
New friendships grew old, then cold. Environmental groups that once took money from McClendon — or considered doing so — to make a common cause against coal power, have stepped back as they weigh the environmental perils of extracting natural gas from shale, a business in which McClendon's Chesapeake Energy is a leader.
The Sierra Club took $26.1 million in contributions from McClendon and Chesapeake-affiliated companies between 2007 and 2010, a fact that its executive director, Michael Brune, first disclosed to Time magazine earlier this month. Last year, Brune walked away from Chesapeake and an offer of an additional $30 million in donations.
To put the $26.1 million in context, compare the funding for the Heartland Institute, about which one critic stated, "That the Heartland Institute is effectively acting as a front group for big oil and energy, raising money from companies which are threatened by climate policies, so that it can essentially do their dirty work in undermining legislation that threatens their corporate bottom line." Heartland received a grand total of $676,500 from Exxon between 1998-2006 and $200,000 from the Koch Foundation in 2011. If that amount makes Heartland a "front group for big oil and energy," what does $26 million it make the Sierra Club for natural gas?
Michael Brune, Executive Director of the Sierra Club, has now come out and stated that they won't take any more money from the natural gas industry. But if you read the statement, he is not saying that it was wrong for the Sierra Club to "effectively act[ ] as a front group for natural gas." Instead, he indicates that the Sierra Club dropped out of the lucrative arrangement only because the natural gas industry has started using hydraulic fracking. It seems that but for that development the Sierra Club would have been perfectly content to lend its prestige and clout to Chesapeake's rent-seeking efforts.
But the Sierra Club wasn't the only one:
Although McClendon may be the gas industry's most generous donor to environmental causes, he is not the only one. Natural gas entrepreneur T. Boone Pickens gave $453,250 to the liberal think tank Center for American Progress (CAP) in 2008 and 2009 through his nonprofit groups, to support its National Clean Energy Project events. At the time, Pickens was pressing lawmakers to adopt a bill to subsidize construction of natural gas filling stations. The legislation would have directly helped a company Pickens co-founded called Clean Energy Fuels, which describes itself as "the leading provider of natural gas for transportation."
Several companies with natural gas interests, including Exxon Mobil, Chevron and the Interstate Natural Gas Association of America, have donated to the D.C.-based Center for Clean Air Policy as part of its efforts to sponsor an ongoing dialogue about domestic climate policy. Exxon and Chevron have given $35,000 each for an annual membership in the dialogue, while smaller industry associations have donated less.
I discuss the political economy of environmental interest groups more in this article.
For those who aren't familiar with the concept of "Baptists and Bootleggers" the phrase was coined by my former professor Bruce Yandle to describe the regulatory process.
Eleventh Circuit Finds Fifth Amendment Right Against Self Incrimination Protects Against Being Forced to Decrypt Hard Drive Contents
The important decision is In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011. From the opinion by Judge Tjoflat:
We hold that the act of Doe's decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. We reach this holding by concluding that (1) Doe's decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions.
First, the decryption and production of the hard drives would require the use of the contents of Doe's mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.
We are unpersuaded by the Government's derivation of the key/combination analogy in arguing that Doe's production of the unencrypted files would be nothing more than a physical nontestimonial transfer. The Government attempts to avoid the analogy by arguing that it does not seek the combination or the key,
but rather the contents. This argument badly misses the mark. In Fisher, where the analogy was born, and again in Hubbell, the Government never sought the "key" or the "combination" to the safe for its own sake; rather, the Government sought the files being withheld, just as the Government does here. Hubbell, 530 U.S. at 38, 120 S. Ct. at 2044 (trying to compel production of documents); Fisher v. United States, 425 U.S. at 394–95, 96 S. Ct. at 1572–73 (seeking to access contents possessed by attorneys).
Requiring Doe to use a decryption password is most certainly more akin to requiring the production of a combination because both demand the use of the contents of the mind, and the production is accompanied by the implied factual statements noted above that could prove to be incriminatory. See Hubbell, 530 U.S. at 43, 120 S. Ct. at 2047. Hence, we conclude that what the Government seeks to compel in this case, the decryption and production of the contents of the hard drives, is testimonial in character.
Moving to the second point, the question becomes whether the purported testimony was a "foregone conclusion." We think not. Nothing in the record before us reveals that the Government knew whether any files exist or the location of those files on the hard drives; what's more, nothing in the record illustrates that the Government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives. . . .
To be fair, the Government has shown that the combined storage space of the drives could contain files that number well into the millions. And the Government has also shown that the drives are encrypted. The Government has not shown, however, that the drives actually contain any files, nor has it shown which of the estimated twenty million files the drives are capable of holding may prove useful. The Government has emphasized at every stage of the proceedings in this case that the forensic analysis showed random characters. But random characters are not files; because the TrueCrypt program displays random characters if there are files and if there is empty space, we simply do not know what, if anything, was hidden based on the facts before us. It is not enough for the Government to argue that the encrypted drives are capable of storing vast amounts of data, some of which may be incriminating. In short, the Government physically possesses the media devices, but it does not know what, if anything, is held on the
encrypted drives. Along the same lines, we are not persuaded by the suggestion that simply because the devices were encrypted necessarily means that Doe was trying to hide something. Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.
Based on a very quick skim, the analysis seems mostly right to me — in result, at least, although perhaps not as to all of the analysis. I hope to blog more on the case later on when I have a bit more time.
Also note that the court's analysis isn't inconsistent with Boucher and Fricosu, the two district court cases on 5th Amendment limits on decryption. In both of those prior cases, the district courts merely held on the facts of the case that the testimony was a foregone conclusion.
February 22, 2012
Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court?
I briefly blogged about this question in 2009; now there's a lawsuit, White v. West Publishing Corp. & Reed Elsevier Inc. (S.D.N.Y. filed Feb. 22, 2012) that argues that such posting does indeed infringe copyright. Here's my summary from 2009, very slightly edited:
The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. That something becomes publicly available doesn't strip it of copyright protection — the point of copyright protection is largely to prevent copying even of material that is publicly available. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.
The question is whether the commercial posting of the briefs is fair use; and fair use law is, as usual, vague enough that there's no clear answer. I do think that the posting is quite valuable to researchers and to others who are trying to figure out what actually happened in a case, and why courts reached the results they did, and I think courts can consider this social value in the fair use analysis. It's also quite unlikely that allowing such posting would materially diminish the incentive to write good briefs, or the market value of a good brief; that too is potentially relevant to the fair use inquiry. But the case isn't open and shut, because there are no precedents (at least that I know of) that are clearly on point, because the various fair use factors seem to cut in both directions, and because fair use analysis is so vague in such situations.
Note that there is a statutory provision that says works of the federal government are free of copyright, which includes federal court opinions; and there is longstanding caselaw that says state court opinions are free of copyright. But there is no such existing doctrine as to briefs filed in court.
Thanks to Prof. Eric Goldman for the pointer to the case. Special note: Gregory Blue is representing Edward White, who is presumably also Nice Guy Eddie. No word on Messrs. Orange, Blonde, Pink, or Brown.
Emotional Distress, Knowing Lies, Xavier Alvarez, Warren Spahn, and the Bronze Star
In today's United States v. Alvarez argument, the Justices at times asked: When should knowing lies be restrictable on the ground that they cause emotional distress? True statements and statements of opinion are, after all, generally protected even when they cause very serious emotional distress (see, e.g., Snyder v. Phelps). Yet, as some of the Justices pointed out, the rule is often different for knowing falsehoods, including ones that don't fit within the narrow exceptions for defamation and financial fraud.
A classic example of speech actionable under the intentional infliction of emotional distress tort involves a knowing lie: "As a practical joke, A falsely tells B that her husband has been badly injured in an accident, and is in the hospital with both legs broken. B suffers severe emotional distress. A is subject to liability to B for her emotional distress." (Restatement (Second) of Torts § 46 ill. 1.) This is of course the same tort involved in Snyder v. Phelps, yet the Justices seemed to agree that Snyder wouldn't apply to lies; the Court's earlier emotional distress tort decision in Hustler Magazine, Inc. v. Falwell suggested the same. Perhaps this case can be distinguished on the grounds that the speech here is not on a matter of "public concern" (a distinction that Snyder suggested might be relevant), but I doubt that this is the proper basis: Even if the lie is said to a politician about some politics-related trauma ("your husband the presidential candidate was just shot"), in a context where the speech was aimed to be conveyed to the public (imagine this being asked as a political stunt in a radio or television interview), I think the Justices would rightly conclude that the speech is unprotected. The fact that the speech is a lie seems to make the difference, even when the harm is just emotional distress.
The same applies even to speech that is considerably less distressing, under the rubric of the false light tort (upheld as constitutional, at least when applied to knowing falsehoods, by the Supreme Court in Cantrell v. Forest City Publishing Co.; see also Time, Inc. v. Hill, which had suggested the same thing). Even speech that is not defamatory but is knowingly false and said about a particular person could lead to a lawsuit by that person based on the emotional distress that the speech causes, even when there is no other harm to the plaintiff (such as injury to reputation).
Interestingly, one leading false light case — cited by the Court in Time, Inc. v. Hill — involved, among other things, a knowing lie about a military decoration. Julian Messner, Inc. published a supposed biography of baseball great Warren Spahn, written by one Milton Shapiro; the biography was aimed at children. The biography was largely fictionalized, but, in keeping with its genre and target audience, didn't say things that made Spahn look bad (and thus wasn't libelous). Rather, it made him look more heroic than he was, including by falsely claiming that he had earned a Bronze Star:
Two chapters of the book are devoted to Spahn's experiences in World War II. The book mistakenly states that Warren Spahn had been decorated with the Bronze Star. In truth, Spahn had not been the recipient of this award, customarily bestowed for outstanding valor in war. Yet the whole tenor of the description of Spahn's war experiences reflects this basic error. Plaintiff thus clearly established that the heroics attributed to him constituted a gross nonfactual and embarrassing distortion as did the description of the circumstances surrounding his being wounded. Sergeant Spahn was not in charge of "supervision of the repairs" (p. 10) of the Bridge at Remagen; Spahn did not go "from man to man, urging them on" (p. 9); Sergeant Spahn did not go "into the town of Remagen to check with his company commander on his orders for the day" (p. 11) and, consequently, the whole description thereof is imaginary; Spahn had not "raced out into the teeth of the enemy barrage" (p. 13); and in addition to other untruthful statements surrounding his being wounded, Spahn was not "rolled * * * onto a stretcher" (p. 14); but remained ambulatory at all times after treatment in the first-aid station.
The New York courts held that such speech was constitutionally unprotected, and therefore could give rise to a tort recovery, simply because of the emotional distress that the falsehoods caused Spahn. To this day, this is a classic and often-cited example of speech actionable under the false light tort. The Court's decisions in Cantrell v. Forest City Publishing Co. and Time, Inc. v. Hill would allow such speech to give rise to liability — again, even without a showing of injury to reputation, financial fraud, or even the sort of severe emotional distress involved in the "A falsely tells B that her husband has been badly injured in an accident" intentional infliction of emotional distress scenario.
So one question in Alvarez is: Given that knowing lies (including about others' military medals) may be punished because of the emotional distress they cause to their targets, why can't knowing lies about one's own military medals be punished because of the emotional distress they cause to others who learn about the lies (for instance, people who realize they've been deceived by the liar, or even people who are just outraged that others are lying about this)? Indeed, one category involves lies about a particular other person that distress that person and the other lies about oneself that distress others, but why should that distinction make a constitutionally significant difference?
I'm inclined to say that there should be no difference, and that Alvarez's lie about his own Bronze Star should be as constitutionally unprotected as Milton Shapiro's lie about Warren Spahn's Bronze Star? If anything, the potential chilling effect on true speech of punishing the lies about oneself (a matter on which one should rarely fear an honest mistake that could be misinterpreted as a deliberate lie) is less than the potential chilling effect on true speech of punishing lies about others. So this is one of the things that leads me to think that the Stolen Valor Act should be upheld (though I should note that the likely result in Alvarez seems far from clear, given the oral argument). But in any case, I thought that the Bronze Star item from the Spahn case was interesting enough to be worth mentioning.
Finally, note that it's quite unlikely that the Court would distinguish civil liability, as in the false light tort, from criminal liability for First Amendment purposes (at least where knowing lies are involved). As the Court noted in New York Times Co. v. Sullivan,
What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. Alabama, for example, has a criminal libel law which subjects to prosecution "any person who speaks, writes, or prints of and concerning another any accusation falsely and maliciously importing the commission by such person of a felony, or any other indictable offense involving moral turpitude," and which allows as punishment upon conviction a fine not exceeding $500 and a prison sentence of six months. Presumably a person charged with violation of this statute enjoys ordinary criminal-law safeguards such as the requirements of an indictment and of proof beyond a reasonable doubt. These safeguards are not available to the defendant in a civil action. The judgment awarded in this case—without the need for any proof of actual pecuniary loss—was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act. And since there is no double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be awarded against petitioners for the same publication. Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly the Alabama law of civil libel is "a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law."
The same would be true of false light, which would suggest that "What a state may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of [false light]," which means that speech that is within the reach of the civil law of false light would also be criminally punishable.
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