Alvarez Brief, Part II.A: Holding that Most Restrictions on Knowing Falsehoods are Unconstitutional

(Eugene Volokh)

This Court could broadly state that restrictions on knowingly false statements are generally not permitted under the First Amendment, with the exception, perhaps, of the most firmly entrenched restrictions, such as those on defamation, perjury, and fraud. This approach would not only invalidate the Stolen Valor Act, but would also effectively overrule Time, Inc. v. Hill and Cantrell v. Forest City Publishing Co. and thus reject the false light tort; would lead to the conclusion that knowing falsehoods cannot lead to liability under the emotional distress tort (at least unless they are also defamatory); would invalidate bans on the use of deceptive party and group names in election campaigns; and so on. We are skeptical that this is the right result, and we doubt that this Court is inclined to embark on such a path.