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. United States v. Alvarez, 132 S.Ct. 2537 (2012).
On Tuesday, April 22, 2014, the United State Supreme Court is scheduled to hear the case of Susan B. Anthony List v. Driehaus. In short, if it is found that Susan B. Anthony List (“SAB List”) (a pro-life, nonprofit organization) has standing, then the question that will be before the Court is whether a law that criminalizes false speech about a political candidate is constitutional or if it is a violation of our American Right to Free Speech.
On the side of SAB List is a long-standing legal tradition in our country of an extreme dislike for limiting free speech, especially when that particular type of speech is discriminated against due to it’s content. For instance, the United State’s Supreme Court ruled in the case of United States v. Alvarez that the Stolen Valor Act of 2005, which made it a crime to falsely claim one has received a military decoration, was unconstitutional (full court opinion can be read here).
It should be mentioned that in Alvarez, the Court took notice that there are situations where the freedom of speech can be constitutionally limited (such as speech that causes harm, defamation and threats being examples). Two possible questions this case could boil down to in SAB List v. Drihaus is (1) does the speech at issue cause harm that we need to prohibit, and (2) is the law at issue the correct way to do it? At least to the second question, the law has its work cut out for it – restrictions of speech based upon that speech’s content is subject to an extremely heightened scrutiny in this country, one that few laws ever survive.
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