you will have to chose one of these cases follow the instruction i attached
As the syllabus
indicates, you will have three essays due in this course. The due dates are Oct. 4, Nov. 8, and Dec.
6. Each one should run 10 to 12 pages in
length.
You have a variety
of options to choose from as you think about how you wish to write these essays.
The work should be entirely yours and
the ideas should be gleaned from the materials we have studied in class or, if
we have not yet arrived at the case(s) you wish to tackle, will study before
the end of the term. Plan on being as
expansive and detailed as possible.
Your options are as follows:
1. Prepare
a case analysis of one or two cases. This means that you should not merely
offer a summary of the facts and outcome of the case, but you should be
prepared to focus on a justice’s argument. Here your task is to determine whether the
conclusion the justice reaches is matched by logical and analytical framework
he or she has produced. In other words, does the outcome make sense in terms of
what the justice has presented or are personal preferences involved?
2. Write
an opinion yourself on one of the cases as if you were writing the majority
opinion for the Court. How would you
want the case to come out? What
meaningful resources would you use to support your argument, such as precedent,
historical events, historical documents, and other materials?
3. Prepare
an opinion as if you were a particular justice. Write from the perspective, for
example, of Hugo Black (literalist) or Felix Frankfurter (legislative
deference), William Brennan or William O. Douglas (living constitution), or
Antonin Scalia/Clarence Thomas (originalist) or even beyond the Constitution
(visionary as in Douglas again). You might want to compare this opinion to one
that is crafted from a completely different perspective.
The work
must be your own, it must reflect your care and duty to the material and the
work of the Court, and it must be written in your best manner. For those of you
who have not reviewed the manuscript style sheet on Blackboard, now is the time
to do so, well in advance of the due date. You will find a model essay on
Blackboard under Content. Let me know
whether you have any questions.
the_zenger_case.jpg
united_states_v._alvarez.docx
Unformatted Attachment Preview
United States v. Alvarez
576 U.S. ___ (2012)
In 2006, President George W. Bush signed the Stolen Valor Act of 2005, which
criminalized false statements about being awarded a military medal. Xavier Alvarez was
convicted of falsely claiming that the United States awarded him the Congressional Medal of
Honor. The Supreme Court overturned his conviction by a vote of six to three. Justice Kennedy,
who laid out the facts of the case in his plurality opinion, wrote for the Court. He was joined by
Chief Justice Roberts and Justices Ginsburg and Sotomayor. Justice Breyer concurred, joined by
Justice Kagan. Justice Alito filed a dissent, in which Justices Scalia and Thomas joined.
Justice Kennedy delivered the opinion of the Court.
Lying was his habit. Xavier Alvarez, the respondent here, 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.
In 2007, respondent attended his first public meeting as a board member of the Three Valley
Water District Board. The board is a governmental entity with headquarters in Claremont,
California. 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. 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. The
United States Court of Appeals for the Ninth Circuit, in a decision by a divided panel, found the
Act invalid under the First Amendment and reversed the conviction. With further opinions on
the issue, and over a dissent by seven judges, rehearing en banc was denied. . . .
This is the second case in two Terms requiring the Court to consider speech that can
disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle.
See Snyder v. Phelps, 562 U. S. 443 (2011). Here the statement that the speaker held the Medal
was an intended, undoubted lie.
It is right and proper that Congress, over a century ago, established an award so the
Nation can 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,”
Selective Draft Law Cases, 245 U.S. 366 (1918), 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 Government contends 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
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be judged by the sometimes inconvenient principles of the First Amendment. By this measure,
the statutory provisions under which respondent was convicted must be held invalid, and his
conviction must be set aside. . . .
Respondent challenges the statute as a content-based suppression of pure speech, speech
not falling within any of the few categories of expression where content-based regulation is
permissible. The Government defends the statute as necessary to preserve the integrity and
purpose of the Medal, an integrity and purpose it contends are compromised and frustrated by the
false statements the statute prohibits. It argues that false statements “have no First Amendment
value in themselves,” and thus “are protected only to the extent needed to avoid chilling fully
protected speech.” Although the statute covers respondent’s speech, the Government argues that
it leaves breathing room for protected speech, for example speech which might criticize the idea
of the Medal or the importance of the military. The Government’s arguments cannot suffice to
save the statute.
”[A]s a general matter, the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v.
American Civil Liberties Union, 535 U.S. 564 (2002). As a result, the Constitution “demands
that content-based restrictions on speech be presumed invalid . . . and that the Government bear
the burden of showing their constitutionality.” Ashcroft v. American Civil Liberties Union, 542
U.S. 656 (2004).
In light of the substantial and expansive threats to free expression posed by content-based
restrictions, this Court has rejected as “startling and dangerous” a “free-floating test for First
Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits.”
United States v. Stevens, 559 U. S. 460 (2010). Instead, content-based restrictions on speech
have been permitted, as a general matter, only when confined to the few “ ‘historic and
traditional categories [of expression] long familiar to the bar,’ ” Stevens. Among these
categories are advocacy intended, and likely, to incite imminent lawless action, see Brandenburg
v. Ohio, 395 U.S. 444 (1969); obscenity, see, e.g., Miller v. California, 413 U.S. 15 (1973);
defamation, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); criminal conduct,
see, e.g., Giboney v. Empire Storage & Ice Co.,336 U.S. 490 (1949); so-called “fighting words,”
see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); child pornography, see New York v.
Ferber, 458 U.S. 747 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748 (1976); true threats, see Watts v. United States, 394 U.S. 705 (1969)
(per curiam); and speech presenting some grave and imminent threat the government has the
power to prevent, see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931), although a
restriction under the last category is most difficult to sustain, see New York Times Co. v. United
States, 403 U.S. 713 (1971). These categories have a historical foundation in the Court’s free
speech tradition. The vast realm of free speech and thought always protected in our tradition can
still thrive, and even be furthered, by adherence to those categories and rules.
Absent from those few categories where the law allows content-based regulation of
speech is any general exception to the First Amendment for false statements. This comports with
the common understanding that some false statements are inevitable if there is to be an open and
vigorous expression of views in public and private conversation, expression the First
Amendment seeks to guarantee. . . .
The Act by its plain terms applies to a false statement made at any time, in any place, to
any person. It can be assumed that it would not apply to, say, a theatrical performance. Still, the
sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment.
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Here the lie was made in a public meeting, but the statute would apply with equal force to
personal, whispered conversations within a home. The statute seeks to control and suppress all
false statements on this one subject in almost limitless times and settings. And it does so entirely
without regard to whether the lie was made for the purpose of material gain.
Permitting the government to decree this speech to be a criminal offense, whether
shouted from the rooftops or made in a barely audible whisper, would endorse government
authority to compile a list of subjects about which false statements are punishable. That
governmental power has no clear limiting principle. Our constitutional tradition stands against
the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949)
(Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects
the National Government or the States could single out. Where false claims are made to effect a
fraud or secure moneys or other valuable considerations, say offers of employment, it is well
established that the Government may restrict speech without affronting the First Amendment.
But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in
truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the
speech was used to gain a material advantage, it would give government a broad censorial power
unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the
exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech,
thought, and discourse are to remain a foundation of our freedom. . . .
The remedy for speech that is false is speech that is true. This is the ordinary course in a
free society. The response to the unreasoned is the rational; to the uninformed, the enlightened;
to the straight-out lie, the simple truth. The theory of our Constitution is “that the best test of
truth is the power of the thought to get itself accepted in the competition of the market,” Abrams
v. United States, 250 U.S. 616 (1919), Holmes, dissenting. The First Amendment itself ensures
the right to respond to speech we do not like, and for good reason. Freedom of speech and
thought flows not from the beneficence of the state but from the inalienable rights of the person.
And suppression of speech by the government can make exposure of falsity more difficult, not
less so. Society has the right and civic duty to engage in open, dynamic, rational discourse.
These ends are not well served when the government seeks to orchestrate public discussion
through content-based mandates. . . .
The Nation well knows that one of the costs of the First Amendment is that it protects the
speech we detest as well as the speech we embrace. Though few might find respondent’s
statements anything but contemptible, his right to make those statements is protected by the
Constitution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes
upon speech protected by the First Amendment.
The judgment of the Court of Appeals is affirmed.
Justice Alito, with whom Justices Scalia and Thomas join, dissenting.
Only the bravest of the brave are awarded the Congressional Medal of Honor, but the
Court today holds that every American has a constitutional right to claim to have received this
singular award. The Court strikes down the Stolen Valor Act of 2005, which was enacted to
stem an epidemic of false claims about military decorations. These lies, Congress reasonably
concluded, were undermining our country’s system of military honors and inflicting real harm on
actual medal recipients and their families.
Building on earlier efforts to protect the military awards system, Congress responded to
this problem by crafting a narrow statute that presents no threat to the freedom of speech. The
statute reaches only knowingly false statements about hard facts directly within a speaker’s
3
personal knowledge. These lies have no value in and of themselves, and proscribing them does
not chill any valuable speech.
By holding that the First Amendment nevertheless shields these lies, the Court breaks
sharply from a long line of cases recognizing that the right to free speech does not protect false
factual statements that inflict real harm and serve no legitimate interest. I would adhere to that
principle and would thus uphold the constitutionality of this valuable law.
Congress passed the Stolen Valor Act in response to a proliferation of false claims
concerning the receipt of military awards. For example, in a single year, more than 600 Virginia
residents falsely claimed to have won the Medal of Honor. An investigation of the 333 people
listed in the online edition of Who’s Who as having received a top military award revealed that
fully a third of the claims could not be substantiated. When the Library of Congress compiled
oral histories for its Veterans History Project, 24 of the 49 individuals who identified themselves
as Medal of Honor recipients had not actually received that award. The same was true of 32
individuals who claimed to have been awarded the Distinguished Service Cross and 14 who
claimed to have won the Navy Cross. Notorious cases brought to Congress’ attention included
the case of a judge who falsely claimed to have been awarded two Medals of Honor and
displayed counterfeit medals in his courtroom; a television network’s military consultant who
falsely claimed that he had received the Silver Star; and a former judge advocate in the Marine
Corps who lied about receiving the Bronze Star and a Purple Heart. . . .
Both the plurality and Justice Breyer argue that Congress could have preserved the
integrity of military honors by means other than a criminal prohibition, but Congress had ample
reason to believe that alternative approaches would not be adequate. The chief alternative that is
recommended is the compilation and release of a comprehensive list or database of actual medal
recipients. If the public could readily access such a resource, it is argued, imposters would be
quickly and easily exposed, and the proliferation of lies about military honors would come to an
end.
This remedy, unfortunately, will not work. The Department of Defense has explained
that the most that it can do is to create a database of recipients of certain top military honors
awarded since 2001.
Because a sufficiently comprehensive database is not practicable, lies about military
awards cannot be remedied by what the plurality calls “counterspeech.” Without the requisite
database, many efforts to refute false claims may be thwarted, and some legitimate award
recipients may be erroneously attacked. In addition, a steady stream of stories in the media about
the exposure of imposters would tend to increase skepticism among members of the public about
the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is
meant to prevent.
The plurality and the concurrence also suggest that Congress could protect the system of
military honors by enacting a narrower statute. The plurality recommends a law that would
apply only to lies that are intended to “secure moneys or other valuable considerations.” In a
similar vein, the concurrence comments that “a more finely tailored statute might . . . insist upon
a showing that the false statement caused specific harm” (opinion of BREYER, J.). But much
damage is caused, both to real award recipients and to the system of military honors, by false
statements that are not linked to any financial or other tangible reward. Unless even a small
financial loss–say, a dollar given to a homeless man falsely claiming to be a decorated veteran-is more important in the eyes of the First Amendment than the damage caused to the very
4
integrity of the military awards system, there is no basis for distinguishing between the Stolen
Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain.
The Stolen Valor Act represents the judgment of the people’s elected representatives that
false statements about military awards are very different from false statements about civilian
awards. Certainly this is true with respect to the high honor that respondent misappropriated.
Respondent claimed that he was awarded the Medal of Honor in 1987 for bravery during the Iran
hostage crisis. This singular award, however, is bestowed only on those members of the Armed
Forces who “distinguish [themselves] conspicuously by gallantry and intrepidity at the risk of
[their lives] above and beyond the call of duty.” 10 U. S. C. §3741. More than half of the heroic
individuals to have been awarded the Medal of Honor after World War I received it
posthumously. Congress was entitled to conclude that falsely claiming to have won the Medal of
Honor is qualitatively different from even the most prestigious civilian awards and that the
misappropriation of that honor warrants criminal sanction.
The Stolen Valor Act is a narrow law enacted to address an important problem, and it
presents no threat to freedom of expression. I would sustain the constitutionality of the Act, and
I therefore respectfully dissent.
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