Earl Warren: Number 319, Walter Schilling, Petitioner, versus William P. Rogers, Attorney General. Mr. Fillman, you may proceed.
Henry I. Fillman: Mr. Chief Justice, may it please the Court. The question presented for consideration by the Court is whether the District Court for the District of Columbia has jurisdiction to entertain a bill of complaint which seeks to review a determination made by the Alien Property Custodian and the Attorney General as to the ineligibility of the petitioner to be considered for return, a vested property under Section 32 (a) (2) (D) of the Trading with the Enemy Act. This is not a suit to return or recover vested property. The complaint merely seeks a review of a preliminary issue under Section 32 (a) (2) (D), namely whether the petitioner comes within that class of persons specified by Congress in the first proviso of that section as eligible to be considered for return in the interest of the United States.
Speaker: Is it discretionary, as you read the statute with the Attorney General, to decide whether he is or isn't within the class?
Henry I. Fillman: It is not, Your Honor. I -- reads the first proviso of Section 32 (a) (2) (D) as one which lays down standards or a condition of status, which if occupied by the petitioner, entitles him to a determination of eligibility. It reads as follows, if I may, “It says that the President --
Speaker: What page is that, sir?
Henry I. Fillman: 44 of the appendix in my brief, Your Honor please. Section 32, return of property, provides that the President or such officer or agency as he may designate, in this case, the Director of Alien Property, may return. It doesn't say may determine eligibility, it is, may return any property or interest vested in or transferred to the Custodian. Whenever such officer or agency shall determine that the person who has filed a notice of claim and so forth, is not an individual who was at anytime after December 7, 1941, a citizen, a subject of Germany, provided and this is the pertinent -- at the bottom of the page on the top of page 45, “Provided that notwithstanding the provision of this subdivision (D), return may be made to an individual who, as a consequence of any law, decree, or regulation of the nation of which he was then a citizen or subject, discriminating against political, racial, or religious groups, as at no time between December 7, 1941, and the time when such law, decree, or regulation was abrogated, enjoyed full rights of citizenship under the law of such nation." And then subdivision (5), “And that such return is in the interest of the United States.” Now, the return may be discretionary, but it -- the Director does not reach consideration for return in the interest of the United States until he has first determined whether the claimant is eligible for return. And the determination of eligibility, the first stage is not discretionary for if a claimant meets the condition laid down in that first proviso, 32 (a) (2) (D). If he establishes that he was a person in Germany where at no time during the period specified, enjoyed full rights of German citizenship by reason of a decree, law, rule, or regulation discriminating against a political religious or racial group, he establishes that and that issue must be determined in his favor and he must be deemed eligible to be considered as to whether return to him shall -- is in the interest of the United States.
Felix Frankfurter: Does that mean that courts -- this Court ultimately must de novo determine whether a particular person is a member of a political, racial or religious group?
Henry I. Fillman: Not --
Felix Frankfurter: Or does that mean that we must merely review whether there's a ground for it, that the Attorney General has so concluding.
Henry I. Fillman: I --
William O. Douglas: Well, I gather that the Court of Appeals thought it was a none -- not -- not a justiciable controversy.
Henry I. Fillman: The (Voice Overlap) --
Felix Frankfurter: And that is what you think is on your premise that it is reviewable.
Henry I. Fillman: I think --
Felix Frankfurter: (Voice Overlap) much of our review that this Court must decide whether a particular person was a member of a political group or that it merely reviews whether there was basis for the Attorney General's so finding, which is it? They are very different.
Henry I. Fillman: They are different. Mr. Justice Frankfurter --
Felix Frankfurter: (Voice Overlap) --
Henry I. Fillman: -- I submit that the this Court, the District Court --
Felix Frankfurter: Yes. All of them --
Henry I. Fillman: -- has the power to determine whether the determination by the Director of Alien Property that he was ineligible was a valid determination, whether that determination was made on the standards laid down --
Felix Frankfurter: Standards laid down are political, racial or religious. And my question is whether when the Attorney General who's the ultimate person who decides and says take this case, if he's not a member of political group -- that -- that whatever that may mean, he doesn't come within that definition. He's not included in that circle. Is the District Court, to hear new evidence, review it as he would a -- a litigation that begins with him without any prior administrative finding or is he merely to say, “Yes, this is a disputed question and I think the Attorney General was justified in making such a conclusion.” Which is it? They are very different.
Henry I. Fillman: The District Court -- the District Court looks at the record and if the determination of the Attorney General is based on substantial evidence in the record as a whole, if it supports his determination of ineligibility, that's the end of the matter. But the District Court has the power to review the record and determine whether the Attorney General exceeded the delegated authority whether he complied with the statute --
Felix Frankfurter: But, specifically in this case, you say everybody wasn't a member of the Nazi party, belonged to a political group, is that right?
Henry I. Fillman: I don't say that and the complaint does not allege that.
Felix Frankfurter: Well, then every member who wasn't allowed to practice law or wasn't allowed to do this, or wasn't allowed to do that belongs to a political, racial, or a religious group. Is that right?
Henry I. Fillman: We don't say that on the face of this complaint, Your Honor please.
Felix Frankfurter: But that's -- that's what the statute says.
Henry I. Fillman: What we say --
Felix Frankfurter: At least, you must stand as a citizen discriminating against political, racial, or religious groups. He must be a member of one those three groups, isn't that right?
Henry I. Fillman: That's right.
Felix Frankfurter: And therefore, the statute does say that, doesn't it?
Henry I. Fillman: The statute says that but our complaint goes further than that. We've alleged the facts bringing us within the statutory condition.
Felix Frankfurter: He wasn't allowed to practice law to -- to carry out what he would've been carried out that (Inaudible) eventually become a judge. The way they do in Germany, a man -- a lawyer says, “I decide to practice my profession as a judge.” And he was denied that right as a -- because he didn't join the Nazi party. Now, what I'm asking you, is that a political, racial, or religious group, so that there's a question about it and if the Attorney General decided against it, that's reviewable by the District Court and eventually, by us, is that right?
Henry I. Fillman: As we allege it, it is reviewable and what we allege, we go further, Mr. Justice Frankfurter. We say, and this is admitted by the motion to dismiss, at page 5 of the record in the complaint, that he was denied admission to the practice of law. It was a substantial deprivation of his rights as a German citizen and why? Because he was a known opponent of Nazism and considered politically unreliable, an anti-Nazi, such as the plaintiff, were recognized and treated as a political group by Nazi authorities and under Nazi laws.
Felix Frankfurter: Do you think that's an allegation of fact, do you?
Henry I. Fillman: That's an allegation of fact.
Felix Frankfurter: Whether --
Charles E. Whittaker: Mr. Fillman, may I ask you --
Felix Frankfurter: If there are a lot of those and in Germany at that time, weren't there?
Henry I. Fillman: There were a lot of --
Felix Frankfurter: I can take judicial notice, but there were millions whom you've described by that allegation, because there millions who were not members of the Nazi party.
Henry I. Fillman: But there weren't millions who were seeking admission to the practice of law, if I may suggest, Mr. Justice Frankfurter.
Felix Frankfurter: All right, then you make a separate rule. And it's the denial of the practice of law of all those who were denied the practice of law and that's your professorship, did they constitute a political, racial, or religious group.
Henry I. Fillman: Not all those who were denied practice of the law were considered a religious, political, or racial group, but those who were known opponents of Nazism and who, in order to become members of the bar, refused the invitation to join the party in order to get their license, known as such considered politically unreliable. They were a smaller minority than the millions of Germans --
Felix Frankfurter: Where they --
Henry I. Fillman: -- who were not members of the Nazis.
Felix Frankfurter: -- (Voice Overlap) you think that's a political group.
Henry I. Fillman: I think that's a political group, it's not a party. They were a group of persons, indeed, the record which is not before this Court adduced the evidence to that effect.
Felix Frankfurter: I -- I can take judicial notice of that. The --
Speaker: I thought so -- am I wrong, I thought the only question before us was whether or not that Section 7 (c) of the Act precludes any judicial remedy in a case of this sort or that or -- with Section 32 proceeding.
Henry I. Fillman: That's correct --
Speaker: Isn't that --
Henry I. Fillman: -- Your Honor.
Speaker: -- isn't that --
Henry I. Fillman: And that was the basis of the decision in the Court of Appeals and that was the basis for the motion to dismiss that --
Speaker: And I take it --
Henry I. Fillman: -- Section 7 (c) precludes any (Voice Overlap) --
Speaker: I'm taking your position is that if -- we hold in your favor on that score, what happens? It goes back to the District Court or goes back to the Court of Appeals for consideration of these questions as to --
Henry I. Fillman: No.
Speaker: -- scope or review or what?
Henry I. Fillman: If this Court should hold in the petitioner's favor, the -- there would be a reversal of the Court of Appeals and this Court, as we suggest, would instruct the Court of Appeals to affirm the order of the District Court which had denied the Government's motion to dismiss the complaint on the ground that the District Court has jurisdiction. It then goes back to the District Court --
Speaker: And then the action is --
Henry I. Fillman: -- and the District Court, under the Administrative Procedure Act would review the records. And if there is no substantial evidence in the record to support the determination of the Director of Alien Property, and if the record impels the conclusion that it was arbitrary or capricious determination (Voice Overlap) --
Speaker: Well, aren't you ahead of the game, we don't face here what the scope or review is. All you're asking is to say there is some kind of review.
Henry I. Fillman: We say the Court --
Speaker: We aren't saying much.
Henry I. Fillman: -- well, we ask the Court to say there's jurisdiction to review in the District Court.
Speaker: Yes.
Charles E. Whittaker: But in order to maintain that position as I understand you, you argue that there are two questions, not one .Namely, one, is -- that is that -- or the eligibility is not one of discretion, that's the first question, you say. Then you say next after eligibility has been determined whether or not the relief shall be granted is the discretionary matter, is that right?
Henry I. Fillman: No, no, Mr. Justice Whittaker. We are not saying in our questions as we presented them, do not place before this Court the question of whether Section 32 eligibility consideration is discretionary. That is not the question as I see it before this Court. The question before this Court as we see it and in the posture of the pleading and the motion is this, whether a District Court has jurisdiction to entertain a suit to review a -- the -- a government agency's determination which is admitted by a motion to dismiss to have been made without any substantial evidence to support it in the record before the agency and which was arbitrary and capricious.
Charles E. Whittaker: Is it not --
Henry I. Fillman: That's one.
Charles E. Whittaker: Is it not true though that regardless of the allegation, it must be taken with the statute. And if the statute gives a discretion to the Attorney General and it ended at that place, there would be no court jurisdiction. And is that not why you argue that that's only the foot in the door or -- or the use -- do you argue that there is no discretion in that respect?
Henry I. Fillman: I argue that if one construes the first proviso of Section 32 (a) (2) (D), namely a determination of eligibility that is not discretionary. But assuming for the discussion, Mr. Justice Whittaker, that it is discretionary, I submit that the courts always have power to review to see if the action is valid, if there was an abuse of discretion, they can turn it over. Courts don't always review whether there has been an abuse of discretion. Discretion doesn't give any agency or official, the arbitrary fiat to determine a question before him willingly only as he sees better.
Speaker: But isn't that all we've got before us, the question of what 7(c) means?
Henry I. Fillman: That's what I think.
Speaker: Is there anything more than that?
Henry I. Fillman: Nothing more than that.
Felix Frankfurter: Well --
Charles E. Whittaker: We can't have any averment here that the District abused its discretion. You don't allege that.
Felix Frankfurter: No.But the Director of Alien Property had abused his -- his --
Charles E. Whittaker: But it's only an abuse of discretion by the District Court that would be reviewable here if 7 (c) is to be given affect according to its terms, which says, “There shall be no review except as provided in the Act”. Isn't that right?
Henry I. Fillman: Section 7 (c) says --
Charles E. Whittaker: Yes.
Henry I. Fillman: -- doesn't quite say that. It says --
Charles E. Whittaker: Well --
Henry I. Fillman: "The sole relief and remedy of any person claiming any interest in property shall be that provided for by this Act.”
Charles E. Whittaker: By the terms of this Act.
Henry I. Fillman: By the terms of this Act.
Charles E. Whittaker: Yes.
Henry I. Fillman: Now the Administrative Procedure Act, Mr. Justice Whittaker, starts out in Section 10 by saying, "Except so far as statutes preclude judicial review." And that's at page 46 of my appendix to the brief. It says "Except so far as statutes preclude judicial review or agency actions by law committed to agency discretion." So, looking at the language there, the question is not whether a statute precludes judicial review, but the question rather is, to what extent does that statute preclude judicial review? That's the language except so far as. Now, Section 7 (c) which says that “The sole relief and remedy of any person having any claim to property shall be that provided for by this Act, could have no relation whatsoever to a claim under Section 32 for these reasons, first, it was enacted in 1918 and had as its purpose, the speedy capture by the Alien Property Custodian of enemy property which he had vested by a vesting order. It was to prevent litigation and delays in getting that property into his hands. Now, when the Trading with the Enemy Act was enacted in 1917, the Custodian had the right to seize, but persons who held property here instead of turning over the property which was vested, forced the Custodian to go into court to get it, because they claimed there was no enemy interest in it. In order to (Inaudible) the delays that followed or resulted, Congress amended Section 7 (c) in 1918. And they there provided by a speedy seizure of the property pursuant to the vesting order and any non-enemy who claimed there was no enemy interest, could then by the sole relief and remedy provision, go into court under 9 (a) to get his property back. He had to give it up before suing. He couldn't as theretofore sue and hold on to it until the Court decided in favor of the Custodian, that, it was back in 1918. That has nothing to do with a Section 32 proceeding, which came on years later in 1946. Now, Section 32 was first enacted in March 1946. It originally provided for a return of vested property to what are called the technical enemies. They were the residents of Holland, Denmark, the occupied countries, France, whose property was seized for two reasons, to protect them, protect the reasons and secondly, to prevent Germany from having those assets available to be used against the United States. Now, when the war was over, there was no need to hold on to those assets. Section 32 was enacted to provide a return to those people. It provided in subdivision (5) that before a return be made, there would have to be a determination that the return was in the interest of the United States. Now, that's a broad term, but the purpose of including that provision was contained in the records, Mr. Thorp, who was then the Assistant Secretary of State, informed Congress, I have mentioned it in my brief that the purpose of the interest of the United States provision was to make certain that the property returned to a so-called “technical enemy,” would not be returned to a German for whom that technical enemy was acting as a cloak. It was to prevent the cloaking situation because some of these people might have been cloaks for the Germans. And then, the other reason given was, in the congressional hearings, to bar a return to a technical enemy wherein the judgment of the State Department -- for example, insufficient reciprocal protection had been afforded by a foreign country to American citizens having claims against it. Now, several months later, they further amended Section 32 (a) (2) (D), that was on August 1946, by incorporating therein the first proviso of Section 32 (a) (2) (D), to return to those persons whom Congress said were in fact, the enemies of our enemies, the persecuted groups. And we filed our claim or the petitioner did on this, the first proviso of Section 32 (a) (2) (D). Now, Congress clearly said that these people should get their property back, that's the language used. And we say that if the petitioner comes within the condition of status laid down in that first proviso, he is eligible to be considered for return. Now, we say the District Court has jurisdiction. It has jurisdiction under the Administrative Procedure Act. And apart from the Administrative Procedure Act, it has it under the Declaratory Judgment Act and the general grant of federal question of jurisdiction for the District Courts.
Felix Frankfurter: May I -- may I ask two or three questions (Voice Overlap) --
Henry I. Fillman: Yes, Your Honor.
Felix Frankfurter: Why we have held the immediate question is 32 (d). After all, (d) is a part of a single statute and I cannot, for myself, dissociate consideration of your -- of your immediate questions, with paragraph or whatever it is, paragraphs (5), “That such return is in the interest of the United States.” I, myself, must decide whether if this case goes back and the District Court holds for you and then it would have to go back to the Attorney General and he would have to decide whether the return is in the interest of the United States, if by a singe word, “no,” William P. Rogers, Attorney General, that concludes the litigation because that -- if the answer to that is, yes that his, no, is final and not reviewable, that has a good deal of bearing in my mind regarding the judicial reviewability of (d), because I wouldn't suppose that Congress meant to say that you could go in and have litigation. To have a contest, way up to the Supreme Court and back and decide, “Yes, he comes within (d),” but the Attorney General by his (Inaudible) can say, “You can't have it, because it's not in the interest of the United States.” So I don't think one can say, “We're not qualified to decide that now.” As a matter of construction, I feel I do have to consider whether his word is final and definitive, because if it is, it bears on what (d) does as far as I'm concerned.
Henry I. Fillman: Well, Your Honor, must -- must you not also consider instead of the word, "no" as to the answer to the question, the word, "yes".
Felix Frankfurter: Certainly, but --
Henry I. Fillman: He might --
Felix Frankfurter: -- I know that's entirely within his say-so.
Henry I. Fillman: Not entirely. It's not only within his say-so, but he must consult as I have been given during the stand from what his former counsel said. He consults with several of the other agencies as to whether a return is in the interest of the United States.
Felix Frankfurter: Are they bound by what they tell him? He either has power or he hasn't any power. The burden of the United States, I assume, can overrule him and he -- he certainly can't sit in judgment on his discretionary power. If the Attorney General can definitively determine after consulting or not consulting that it's the interest of the United States not to return, then for me, it has a great deal of bearing whether they have judicial review of these.
Henry I. Fillman: But I think, Your Honor, where that in determining whether it's in the interest of the United States, that determination must likewise be supported by valid evidence.
Felix Frankfurter: He doesn't have to say a thing, if he has a final say. So, I'm assuming the Attorney General is a conscientious officer. He is the official leader of the American Bar. He is the -- he is the President's advisor, but if as a matter of law, his decision is not reviewable by the courts, then it's not reviewable.
Henry I. Fillman: I say, if Your Honor please, that this petitioner, if he is eligible, if he does meet the standards, if the determination of ineligibility was without substantial evidence, I say that he is entitled to that determination by the Director of Alien Property one way or the other. He's entitled to get an answer, yes or no, from the Director whether return is in the interest of the United States, if this petitioner meets the standards.
Speaker: I noticed you don't seem to rely at all on Section 32 (e), which seems to me to have some significance, neither you nor the Government discussed it. The effect of which section as I understand it is that in the case of a person who receives property under 32, the Act specifically recognizes that there may be a suit by somebody against him but only one who is qualified, would have been qualified to receive the property under 32 is one coming within that provision. It seems to me to have a flavor of justiciability on it.
Henry I. Fillman: Well, that -- that is a suit by someone who claims against the person to whom the return is being made.
Speaker: Yes, but in order for the -- such a person to bring such a suit, he must show himself to have been one who had -- he applied in the first instance to the Attorney General, would have been qualified under 32 (d).
Henry I. Fillman: That's correct.
Speaker: Is that right?
Henry I. Fillman: That's correct.
Felix Frankfurter: You say he's entitled to an answer, if I may go back to my question, he has got an answer. And the Director said that as he construed (d), he was not as he'd benefited in discriminating against political, racial, or religious groups that the -- that the -- that Walter Schilling or has not -- did not come within the designation of characterization or call it what you will, of a political, racial, or religious group. Now, it -- it certainly seems to me almost incredible to say that that is not a justifiable -- that that is so irrational, that it came from a mind that was animated by sheer hostility against Schilling. And you don't say that he was arbitrary or abused his power by having some private score against Schilling or that he had a lawsuit against him before the war broke out.
Henry I. Fillman: We have --
Felix Frankfurter: Or that he -- that he married his sister and -- who gave him a hard time and he divorced her. You don't say -- you don't appeal that kind of abuse (Voice Overlap) --
Henry I. Fillman: We say it was done without substantial evidence on the record.
Felix Frankfurter: But he doesn't have -- you don't have to -- we constantly decide legal questions without evidence --
Henry I. Fillman: We had less --
Felix Frankfurter: We assert is as a matter of construction of language.
Henry I. Fillman: Well, the Administrative Procedure Act and --
Felix Frankfurter: But it was not within it because there's a special provision as you, yourself, appealed to. Trading with the -- the -- Trading with the Enemy Act had its own regime.
Henry I. Fillman: Oh, I beg to differ, if Your Honor please.
Felix Frankfurter: (Voice Overlap) --
Henry I. Fillman: There is no remedy afforded by the Trading with the Enemy Act to Walter Schilling to review any determination under 32 (a) (2) (D).
Felix Frankfurter: But you -- you draw it out of it. You say that -- you say by general principles of law, you've just told us a little while ago.
Henry I. Fillman: By general principles of law, the Administrative Procedure Act and the Declaratory Judgment Act. We have a right to review any action of the agency, of the Director which is without evidence to support it.
Felix Frankfurter: Subject to the exceptions of the Administrative Procedure Act that it makes several exceptions that from my point of view, bar you.
Henry I. Fillman: No exception --
Felix Frankfurter: Not by -- not by your general proposition, but by your appeal to that Act.
Henry I. Fillman: Well, I think, if Your Honor please, that in the Heikkila -- Brown case -- Barber case, in the dissenting opinion which Your Honor wrote, in which Mr. Justice Black joined, you referred at some length to the colloquy that took place between Senator McCarran and the members of the Senate, when he was discussing and explaining the provisions of Section 10. And I think Your Honor pointed out in that opinion that they were not talking about judicial review in the technical sense, but they were talking about access to a court.
Felix Frankfurter: Lawyers would seem always to get more comfort out of my dissenting opinion than I do myself. [Laughter]
Henry I. Fillman: In that opinion, Your Honor said that they were not talking about judicial review, in the technical sense, but about access to the court.
Felix Frankfurter: But the court didn't take that line of argument. What good is it -- except you may have great intellectual satisfaction that you and I see alike.
Henry I. Fillman: Could the Court -- may change today or tomorrow.
Felix Frankfurter: Alright.
Henry I. Fillman: It's done that before. It has come around to a dissenting judge's point of view, and it may come around again.
William O. Douglas: You don't mention that in your briefs the cases under the deportation statutes where questions of eligibility for -- eligibility for the discretion for relief -- discretionary relief of the Attorney General, maybe justiciable one, although his decision not to exercise that discretion was not --
Henry I. Fillman: But we cite -- we cite the McGrath-Kristensen case where the Attorney General had refused to support -- suspend the petitioner's deportation on the ground of violation of his business status and it was deemed ineligible for citizenship because he had applied for relief from military service.
William O. Douglas: Well -- Not --
William O. Douglas: -- what I'm getting at is that the --
Henry I. Fillman: The (Inaudible) we cite that.
William O. Douglas: Even though -- even though (D) (5) might -- as Justice Frankfurter suggests that the -- in the -- here in the political realm unreviewable, you might well have a -- I'm not saying that this is your -- it's you're right, but you might well have a justiciable question as to whether or not, the person qualifies for this discretionary relief.
Henry I. Fillman: We have that judiciable -- justiciable controversy. The same controversy that was -- you might say in Perkins v. Elg and McGrath v. Kristensen. In the McGrath v. Kristensen, this Court said that it didn't find necessary to consider the application of Section 10 of the Administrative Procedure Act, but the Court went on to say that when an official's authority to act depends upon the status of the person affected in that case, eligibility for citizenship, that status when in dispute maybe determined by declaratory judgment proceeding after the exhaustion of administrative remedies. And that was an actual controversy between the alien -- the immigration officials, over the legal right of the alien to be considered for suspension. And in such a controversy over federal law, the courts had jurisdiction. Now, we say so here. The Director's authority to act depends upon the status of the petitioner. In this case, eligibility for return, that status is in dispute. It may be determined by a declaratory judgment proceeding after we exhausted this administrative proceeding. But I'll go further and may I turn from the moment to a case which the respondent cites (Inaudible) case. In that case, they take the position that this return is a gratuity. They can do anything they want with it, like to recall it. Well, it's granted, but a -- a return of vested property is a gratuity. It's been so held and that Congress may withdraw it. Congress has not withdrawn it here. In that case, which came up under the Dent Act, an act to provide for payment of compensation of those who would furnish supplies and services during World War I and didn't have any contract for repayment. The Dent Act had two provisions. A determination of the Secretary of the War was to be final and conclusive. And then it has at page 180, 267 U.S., it has this paragraph quote, “That nothing in this Section shall be construed to confer jurisdiction upon any court to entertain a suit against the United States.” That was in the Dent Act. The court that -- in holding for the Secretary of War, who were denied an award of some $9000, went on to point out that -- that cases which the claimant had cited were cases in which it was held that no court could reverse or control the Secretary by mandamus in the absence of anything to show the determination was capricious or arbitrary. And then went on to say, “There is nothing in the award by the Secretary in the case at bar, which would justify characterizing it as arbitrary or capricious or fraudulent or the abuse of discretion.” Now, there is just one more thing --
Earl Warren: Well, you have to be very brief, because you're five minutes overtime now, Mr. --
Henry I. Fillman: I'm sorry. I thank you, Mr. Chief Justice. When Congress wishes to withhold suit or bar a suit, it does so, specifically as it did in the Veterans Administration Act, the House cited it. It's 38 U.S.C. 211 (a), where Congress specifically sends that the determination or the benefits of payments under the VA by the administrator shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision. And they also did it in, Public Law 285 in the 85th Congress, in the Foreign Claims Settlement Act. We don't have that here in the Trading with the Enemy Act.
Earl Warren: Mr. Kramer.
Robert Kramer: May it please the Court. It is the position of the Government which the Government has maintained consistently ever since 1944 when the predecessor of the bill which eventually became Section 32 when the Trading with the Enemy Act was first introduced with Congress. The Government has maintained its position ever since then that there is no judicial review of determinations made under Section 32, that the District Court, as the Court of Appeals or this Committee have found here and as that court had found in four previous cases involving the same issue. The District Court had no jurisdiction. We think this is true, first, because a fair reading of the language of the Trading with the Enemy Act demonstrates that there was to be no judicial review under Section 32. We think it is true, second, because a fair interpretation in the legislative history of Section 32 also demonstrates, there is to be no judicial review. In the third place we think it's true because a fair interpretation of the whole pattern of the way that Congress has dealt with seizures of property of enemy aliens or to the Trading with the Enemy Act supports this conclusion. And finally, we think it is true because there were very strong reasons of policy which undoubtedly influenced Congress here in not providing for review, in believing there should be no review and those reasons of policy we think are -- are persuasive.
Earl Warren: Well, may I ask what particular language in the statute you refer to, to substantiate that position?
Robert Kramer: Well, the first that I would in particular refer to, the language of Section 32 itself, the language contained in Section 9 (a) --
Earl Warren: Well, let's take 32, what does that say?
Robert Kramer: Well, as has already been pointed out here, the two notable things about Section 32. First, it is completely certain as far as judicial review is concerned, it makes no provision for it whatsoever.
Earl Warren: (Voice Overlap) -- that's included.
Speaker: (Voice Overlap)
Robert Kramer: We believe it does when you consider it with the legislative history of Section 32 and when you read it together with the rest of the Trading with the Enemy Act.
Earl Warren: Now, let's have the other -- the rest of the statute that you rely on.
Robert Kramer: We also believe that the language of Section 32 has been brought out previously in this argument confers extremely wide discretion.
Earl Warren: But now, what language? I just want -- I want --
Robert Kramer: Yes, exactly.
Earl Warren: Yes.
Robert Kramer: Well, let's start off here. At the very first start it says, "The President may return." Now the word "may" there was not used merely accidentally. As a matter of fact, in the original hearings before the House Committee, when this was first introduced, at least two witnesses, Mr. Carter (ph) and Mr. Charles Carroll (ph) very strongly objected to the use of that word ,"may" and suggested that instead, it should be changed to "shall return" in there in order to eliminate that discretion. Congress did not so change it. The Alien Property Custodian wrote a letter to the House Committee in which he opposed the change from "may" to "shall".
Speaker: When it comes to the determination of what your opponent calls status, the statute says, “shall return” and not, “may return”.
Robert Kramer: It simply said, “He shall determine the status.” But it says --
Speaker: Yes, but that's what we're talking about here.
Robert Kramer: Well, it simply requires him to make the determination. He has begged the determination here. There's no question of the Alien Property Custodian for choosing to make the determination. That, I take it is what petitioner complains about. When it says "he shall determine," it simply means he shall determine whether or not this particular person is eligible just as it says here down in Section 5. It says, "The President shall determine that such return is in the public interest." Well, I take it, no one would argue that that removes the discretion within Section 5 because it begins there, “The President shall determine that such return.” It simply means that if the Alien Property Custodian I -- I -- arbitrarily says, "I won't make any determination at all here." I just moved after your petition.”
Felix Frankfurter: You could mandamus anything you say. You could mandamus and I suppose.
Robert Kramer: I suppose that at least that could be argued.
William O. Douglas: You don't seem to treat it in your briefs the kind of problem that we had in the -- in the Accardi case -- the -- versus Shaughnessy, the justiciable questions to whether or not A or B or C was in the category of people who are eligible through the exercise by the Attorney General of his discretion for suspension. Well, and the Court --
Robert Kramer: And we recognize that --
William O. Douglas: -- the Court made quite clear that while the -- it's up to the Attorney General and not to the courts to determine who -- whether the discretion to suspend should be exercised. Nevertheless, whether a man qualified to get into the group to apply it for suspension was justiciable.
Robert Kramer: Well, we --
William O. Douglas: But that -- that -- that seems though on the surface to be fairly close to this situation.
Robert Kramer: Well, we mentioned that in the last paragraph at the bottom of page 27 of our brief be treated -- I grant you very briefly. However, I think we also go on to discuss in our brief on pages 29, 30 and 31, the other cases referred to by counsel here, the Elg case and the Kristensen case. All those cases we think, involved in the first place a different statute. And this Court has repeatedly pointed out the determining questions of judicial review, one must look to the specific language and the specific background of the statute involved, and that's what we are attempting to do here. That's what we're attempting to do here. Furthermore, both the Perkins case and the Kristensen case involve the question of citizenship which this Court pointed out in those opinions raised grave constitutional issue. In this particular case, at no time has any constitutional issue have been raised by petitioner, either here or in the court below. Furthermore, in both the Perkins case and the Kristensen case, the -- this Court pointed out that the real issue was not there whether there should be any judicial review because in both those cases, there was a threat of deportation. And if and when the petitioner in those cases was taken into custody for deportation, the Constitution would have required judicial review by habeas corpus. The issue in those cases really was whether -- was the time of obtaining judicial review and the method whether by declaratory judgment or habeas corpus.
Earl Warren: Well, Mr. -- Mr. Kramer, granting that this -- that the discretion of -- of the President is as broad as you -- as you've interpreted it here, isn't the question as to whether the man falls into one of these groups, a -- a legal question, a justiciable question, or is that also a matter of discretion on the part of the Director?
Robert Kramer: Mr. Chief Justice, I'm not quite sure what you mean by “legal,” or “justiciable”. If you mean, “might a court decide it?” The answer obviously is, yes. If you mean, “Has Congress intended for the court to decide it?” It is the Government's position that Congress did not so intend.
Earl Warren: You -- you mean that -- that Congress intended that the Director should determine there's a legal question whether the group this man is in was within the statute or not. And that from --
Robert Kramer: That is correct.
Earl Warren: -- from his decision, there is no review.
Robert Kramer: That is correct. That is the position the Government has taken consistently from 1944, when this --
Earl Warren: Yes.
Robert Kramer: -- the original bill or Section 32 was introduced in Congress.
Earl Warren: Not the question as to whether the man belong to the group, but as to the question as to whether the group itself came within the statute.
Robert Kramer: Well, as far as -- as I know, this -- the distinction that -- that you are -- are growing, so to speak, and that the counsel of petitioner has drawn this two or three-step status had -- was never suggested to Congress. It is actually -- that is not the way that we pointed in our brief that the Alien Property Director has often decided cases. He has sometimes refused to make a return because he found that the petitioner did not actually ever own the property, without ever considering whether the petitioner was or was not a -- a national discriminated against a member of a group. He has -- sometimes made -- without making that determination, he has simply followed a certification from a foreign government. And I think incidentally, that -- I see it's time for --
Earl Warren: All right. We'll recess now.


John G. Roberts, Jr.: We'll hear argument first this morning in Case 11-210, United States v. Alvarez. General Verrilli.
Donald B. Verrilli, Jr.: Mr. Chief Justice, and may it please the Court: Military honors play a vital role in inculcating and sustaining the core values of our nation's armed forces. The military applies exacting criteria in awarding honors, and Congress has a long tradition of legislating to protect the integrity of the honor system. The Stolen Valor Act continues that tradition by prohibiting knowingly false statements that one has been awarded a military honor. It regulates a carefully limited and narrowly drawn category of calculated factual falsehoods. It advances a legitimate substantial, indeed compelling, governmental interest, and it chills no protected speech. This Court has recognized--
Sonia Sotomayor: General, may I pose a hypothetical? During the Vietnam War, a protester holds up a sign that says, "I won a Purple Heart -- for killing babies. " Knowing statement. He didn't win the Purple Heart. As a reader, I can't be sure whether he did and is a combat veteran who opposes the war, or whether he's a citizen protesting the war. Is that person, if he's not a veteran, having received the medal, is he liable under this act?
Donald B. Verrilli, Jr.: --I think, Your Honor, it would depend on whether that was, that expression, was reasonably understood by the audience as a statement of fact or as an exercise in political theater. If it's the latter, it's not within the scope of the statute, and it wouldn't be subject to liability.
Sonia Sotomayor: Somewhat dangerous, isn't it, to subject speech to the absolute rule of no protection? Which is what you're advocating, I understand, that there are no circumstances in which this speech has value. I believe that's your bottom line.
Donald B. Verrilli, Jr.: Well, what -- what I would say with respect to that, Your Honor, is that this Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake.
Anthony M. Kennedy: Well, I'm -- I'm not sure that that's quite correct. It has said it often, but always in context where it is well understood that speech can injure. Defamation, Gertz. At page 12 of your brief, you make this point, and it's what Justice Sotomayor is indicating. You think there's no value to falsity. But I -- I simply can't find that in our cases, and I -- I think it's a sweeping proposition to say that there's no value to falsity. Falsity is a way in which we contrast what is false and what is true.
Donald B. Verrilli, Jr.: I want to be--
Anthony M. Kennedy: And--
Donald B. Verrilli, Jr.: --I want to respond with precision, Justice Kennedy, that the -- I think what this Court -- and Gertz is a good example -- has done is to draw a line, and that line -- and I think it is Gertz itself that contains this Court's statement that false statements of fact have no First Amendment value. That doesn't automatically mean that a false statement of fact lacks First Amendment protection.
Anthony M. Kennedy: --But that's in the context of a defamation case.
Donald B. Verrilli, Jr.: Yes.
Anthony M. Kennedy: And you want to take the Gertz case, where it's well understood that defamation is actionable, and say that as a general matter, that the government can inveigh against what's false.
Donald B. Verrilli, Jr.: The -- no, I'm trying to say something much narrower than that, Justice Kennedy, that, with respect to factually false statements, the government has the authority, if it can meet the "breathing space" principles that this Court's cases have articulated, along with the recognition that factually false statements have no intrinsic First Amendment value -- those are substantial constraints. But they are substantial constraints that are satisfied in this case because the Stolen Valor Act regulates a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor, and that's information that is within -- and only punishes speech about yourself. So it is speech that is uniquely within the knowledge of the individual speaker.
Ruth Bader Ginsburg: Suppose -- suppose, General Verrilli, that the decorations were left out and Congress had said: We don't like people saying that they were in the Marine Corps for 25 years when they never served for a single day in any armed force. So they have a statute just like this one, but it is directed to the false claim that one has served in the armed forces. I don't see in your argument that there is something special about the decorations--
Donald B. Verrilli, Jr.: Well, I do think the decorations matter, Justice Ginsburg. We -- we think that that kind of a statute would be a harder case, and under the Court's "breathing space" principles closer to the line, because the category is much broader, much harder to define, and it would depend on the interest.
Antonin Scalia: Why is it much harder to define? I don't -- why does the broadness have anything to do with the breathing space? I mean, I suppose your argument here is that there is harm, it's not just falsehood, but it's falsehood conjoined with harm, just as libel is.
Donald B. Verrilli, Jr.: That's -- that's exactly our argument, Justice Scalia.
Antonin Scalia: Okay. So -- and in the example that Justice Ginsburg just gave, in your case there's harm to those courageous men and women who receive the decorations. In the -- in the example that Justice Ginsburg gave, there's harm to the people who honorably served in the armed forces.
Donald B. Verrilli, Jr.: Yes.
Antonin Scalia: Why isn't that just as--
Donald B. Verrilli, Jr.: And if that -- and if that is -- and that's what I was trying to get to, Justice Scalia, is that--
Antonin Scalia: --Their service is demeaned when everybody says, I served in the armed forces.
Donald B. Verrilli, Jr.: --Congress -- under this Court's "breathing space" principles, Congress would need to articulate a substantial interest. We think that would likely qualify. We just think that's a harder case.
John G. Roberts, Jr.: Well, where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have a high school diploma if you know that you don't. That's something you can check pretty easily. And Congress can say: We want people to finish high school. It's a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don't. What about that case?
Donald B. Verrilli, Jr.: I think that that case,-- Your Honor, I think if it's an objectively verifiable fact -- it would seem more likely that a State legislature might enact a law like that. If it were an objectively verifiable fact and the State could articulate a substantial interest of the kind that Your Honor identified--
John G. Roberts, Jr.: The substantial interest is the one that I've just said.
Donald B. Verrilli, Jr.: --States -- States do have laws, some States do have laws respecting false claims to have received a diploma from a public university.
Anthony M. Kennedy: But that's for submitting resumes. That's -- when -- that's fraud.
Donald B. Verrilli, Jr.: If I could get back to Your Honor's point about the nature of the harm. It is true that in Gertz you had the particularized harm, but this Court -- the common characteristic that allowed this Court to move from defamation to false light privacy, to intentional infliction of emotional distress in the Falwell case, then to baseless lawsuits, the sham exception in Noerr-Pennington, the sham exception under the National Labor Relations Act, the common characteristic was not an analogy to the particularized harm that existed in the defamation context. The common characteristic that this Court's opinions identify is the calculated factual falsehood. It is true that the harm here is different.
Anthony M. Kennedy: They were -- they were in the context, though, of recognized torts, intentional infliction for emotional distress. Here it does seem to me that you can argue that this is something like a -- a trademark, a medal in which the government and the armed forces have a particular interest, and we could carve out a narrow exception for that. I think we would have to do that. But just to say that the cases you mentioned say that there is no value to false speech, I simply cannot agree that they stand for that broad proposition. They do in the particular context of a recognized tort like intentional infliction of emotional distress.
Donald B. Verrilli, Jr.: That -- that is true. And this -- this is a case in which one of the harms 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.
Sonia Sotomayor: Harms -- General, I spent a lot of time going through the multiple cases that you cited in your brief defining the various statutes that basically impose penalties for impersonation of some sort or another. And virtually in every one of them, except perhaps one, there was either an economic interest that was harmed by the impersonation, either by the -- by the very face of the statute or by the nature of the claim, a dilution of a trademark, by taking on someone else's valuable property rights. And so I went back reading our cases, and Justice Story many, many years ago said, look, falsehoods have no value as such, but the "breathing space" concept is defined by those falsehoods which cause injury to rights that people possess, to -- to pecuniary interests that they have, or to the reputation of others. And almost every statute where we have approved a harm concept as being permissible for recovery has affected one of those three things. So please tell me what's wrong with Justice Story's view, number one; and, number two, how does the definition of harm fit in that? What's the harm here that fits within that descriptor.
Donald B. Verrilli, Jr.: Well, I think three points. First, if I could just make a general point in response to Your Honor's question. I think that one reality here is that, as I read this Court's cases, this Court has never held or even suggested in any context when the government wants to regulate a properly defined category of calculated factual falsehood, that it has to meet strict scrutiny. That would be a real break and a real change in the law that would subject--
Sonia Sotomayor: I didn't mention -- neither did Justice Story.
Donald B. Verrilli, Jr.: --And -- but -- and again--
Sonia Sotomayor: He said if you want to regulate a falsehood, it has to cause a harm in this way.
Donald B. Verrilli, Jr.: --And that's why I want to get to -- that's -- but I think it's relevant, Your Honor, to the point about Justice Story in the following way. The -- the -- there are a series of statutes, 18 U.S.C. 1001, 18 U.S.C. 962, the impersonating a Federal officer statute, 1001 being the false statement statute; perjury statutes; those are designed to protect the integrity of the government processes. There isn't--
Sonia Sotomayor: Not really. They are intended to protect the right of the government to secure truthful information.
Donald B. Verrilli, Jr.: --Right.
Sonia Sotomayor: The government has a right to subpoena you at trial, subject you to oath, and force you to tell the truth.
Donald B. Verrilli, Jr.: The statute--
Sonia Sotomayor: So if you -- that's a right. That fits within Story's definition.
Donald B. Verrilli, Jr.: --But not a -- as -- as I read what Justice Story is talking about, he was talking about the rights of private citizens, and what I'm saying is there is an additional category of long recognized, well accepted government regulation of factual -- calculated factual falsehood that serves systemic interests. And, of course, with respect to the Stolen Valor Act, the -- Congress -- Congress is building in the Stolen Valor Act on a statute that Congress enacted in 1923 which prohibited the -- the wearing of medals without justification to wear the medals. And, of course, one of the reasons Congress acted in 1923 to do that was out of concern that the misappropriation of the government conferral of esteem was going to cause substantial harm. That's been on the books for the better part of a century, and--
Samuel A. Alito, Jr.: Is your argument limited to statements that a person makes about himself or herself?
Donald B. Verrilli, Jr.: --Yes. It is. That's the category that the statute regulates. That is -- and it seems to me in a situation in which the statute is limited to factually verifiable information, the person is speaking about himself or herself, and the category of what's prescribed is clear.
Samuel A. Alito, Jr.: What's the principal reason for drawing the line there? Suppose the statute also made it a crime to represent falsely that someone else was the recipient of a military medal, so that if someone said falsely and knowingly that a spouse or a parent or a child was a medal recipient, that would also be covered?
Donald B. Verrilli, Jr.: I think--
Samuel A. Alito, Jr.: That would be protected by the First Amendment?
Donald B. Verrilli, Jr.: --I think that would be -- that would be a case in which under the "breathing space" principles that this Court applies when we're talking about calculated factual falsehood, you have to answer a question, which is, how much risk is there of chilling constitutionally protected speech, because when you're talking about somebody else--
Antonin Scalia: I don't see any difference as far as that risk goes. I -- I hope that in your earlier colloquy with Justice Kennedy, you -- you were not retreating from what our cases have repeatedly said, that there is no First Amendment value in falsehood.
Donald B. Verrilli, Jr.: --And that only -- and that--
Antonin Scalia: Now this doesn't mean that every falsehood can be punished, because in -- in punishing some falsehoods you -- you risk deterring -- deterring truth.
Donald B. Verrilli, Jr.: --And that's -- that was what I was trying to say in response to Justice Alito's question. You have--
Antonin Scalia: I believe that there is no First Amendment value in -- in falsehood.
Donald B. Verrilli, Jr.: --You have to answer the question in that case of whether there was a material risk of deterring expression that's truthful because -- what -- who knows whether your grandfather was telling the truth when he -- when he said he won the medal, and so you -- it may be a more difficult case. But under the Court's "breathing space" principles, that's the question that one would have to answer.
Elena Kagan: General, is there--
Ruth Bader Ginsburg: --Well, the assumption -- the assumption is that it's false, that was -- and that it's not so hard to find out if somebody claimed to have the Medal of Honor and he doesn't. So that -- first you answered yes, that it's only self, and now you said, no, it can be -- or at least I think you said -- making a false statement of fact. And the concern is -- and I gave you the question of just in the service, leaving out the decorations -- other statements of fact, false statements like "I deny that the Holocaust ever occurred. " That's a statement, a false statement of fact, isn't it?
Donald B. Verrilli, Jr.: Yes, it could be. I think a statute seeking to regulate that, Justice Ginsburg, would have viewpoint discrimination problems of the kind that the Court identified in R.A.V., and I think also under the Court's "breathing space" analysis you would -- you'd have to look long and hard and have significant concerns about that kind of a -- a statement, because it's so bound up with matters of ideological controversy that -- that you'd want to exercise care, but that's really quite different from what we have here. This is a pinpoint accuracy, a specific verifiable factual claim about yourself having won a medal.
John G. Roberts, Jr.: I want to follow up on Justice Scalia's question, because I'm not sure I understood. The government's position is that there is no First Amendment value in a false representation of fact, by which I understand you to mean not parody or something like that, but a statement that's intended to be understood as true. There is no First Amendment value in that statement. It may be protected because of the "breathing space" argument, but in whatever context, in whatever guise, there is no protection in that false representation as such.
Donald B. Verrilli, Jr.: Well, that is the position we've taken in this case, Your Honor. The reason we've taken it is because we read the Court's precedents, Gertz and many others, Falwell v. Hustler, as saying precisely that. In fact, Falwell goes a step further and says false statements of fact are affirmatively harmful to First Amendment interest because they impede the -- the search for truth. That's -- so our -- our position is based on the precise language of cases stretching back a half a century. Garrison said calculated falsehood is a category of speech that is no part of the expression of ideas of the search for truth, and then it cites Chaplinsky--
Elena Kagan: --General, what about these State statutes -- there are more of them than I thought that there would be -- that say no demonstrable falsehoods by a political candidate in a political race, and prohibit demonstrable falsehoods by political candidates? How would your analysis apply to those? Would they come out the other end as constitutional?
Donald B. Verrilli, Jr.: --I think that those kinds of statutes are going to have a lot harder time getting through the Court's "breathing space" analysis because the context in which they arise is one that would create a more significant risk of chill--
Elena Kagan: Well, suppose it says demonstrable falsehoods about yourself--
Donald B. Verrilli, Jr.: --I think--
Elena Kagan: --just about your qualifications, about what you've done in your life, your -- you know, whether you have a Medal of Honor, whether you've been in military service, whether you've been to college. So any demonstrable statement that a candidate, political candidate, makes about himself.
Donald B. Verrilli, Jr.: --Yeah. I think under the Court's "breathing space" analysis, because of the political candidate context, those statutes are going to pose a particular risk of chill, that this statute does not pose because this is a statute about verifiable factual falsehoods.
Elena Kagan: I guess I don't understand why it would be more chilling in the one case than in the other. They are the same kind of statement. And one knows the same sorts of things about oneself.
Donald B. Verrilli, Jr.: Well, I think the idea would be, in a situation like that one, the government's power and authority is being trained specifically on the political process and statements in the political process, and this is -- this is quite different. This is a statute that says--
Elena Kagan: Well, I assume that that would be in the case of the State statutes because the State feels that it has a specially important interest in maintaining the political sphere free of lies.
Donald B. Verrilli, Jr.: --I guess the chilling effect seems to me, at least, to be materially different than in a situation like this one, where what we're talking about is a very specific pinpoint thing, one thing: Have you been awarded a military honor or not? And a statement that is about yourself only, not about somebody else, and is supported by a quite strong particularized interest in ensuring the integrity of the military honor.
Antonin Scalia: I suppose that even in the commercial context we allow a decent amount of lying, don't we? It's called puffing.
Donald B. Verrilli, Jr.: Well--
Antonin Scalia: Although -- although, you know, making false representations to sell a product is unlawful, we do allow puffing, don't we?
Donald B. Verrilli, Jr.: --Well certainly.
Antonin Scalia: You won't buy it cheaper anywhere else.
Donald B. Verrilli, Jr.: That's -- that's certainly right. But -- and that is the line--
Antonin Scalia: So maybe we allow a certain amount of puffing in political speech as well.
Donald B. Verrilli, Jr.: --And I do think--
Antonin Scalia: Nobody believes all that stuff, right?
Donald B. Verrilli, Jr.: --I do think the Court's -- I do think the Court's breathing space analysis would call for that, I think that's true. But this is a different concept.
John G. Roberts, Jr.: 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.
Donald B. Verrilli, Jr.: Nothing at all, Your Honor. And that is what I was trying to say--
Anthony M. 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.
Donald B. Verrilli, Jr.: --Yes, and that's the government's interest here, and we do think that that kind of -- I think, Your Honor, that the reason that I think our -- we have a lot of slippery slope type questions here today, but I would urge the Court not to -- not to decline to make a sound decision about this statute based on concern about not being able to draw the line, because this statute is as narrow as you can get.
Sonia Sotomayor: General, but I have a problem, which is it's not as narrow as it could get. Wouldn't take much to do exactly what Congress said it was doing, which was to protect against fraudulent claims of receiving a medal, and the example it used was someone who used a fraudulent claim of receiving a medal to get money. 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, 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.
Donald B. Verrilli, Jr.: As a father of a 20-year-old daughter, so do I, Justice Sotomayor. But if I could take a minute on the interest, because I do think it's quite important. I mean, on some level of course it is true that no soldier charges up Mount Suribachi thinking, well, I'm going to do this because I'll get a medal if I get to the top. That's not what the military honor system--
Sonia Sotomayor: Or I'm not going to do this because the medal has been debased.
Donald B. Verrilli, Jr.: --That's not -- well, that's not what the honor system is about. The honor system is about identifying the attributes, the essence, of what we want in our service men and women -- courage, sacrifice, love of country, willingness to put your life on the line for your comrades. And what the medals do is say to, to our military, this is what we care about. It's what George Washington said in 1782 when he set up the honor system. It's designed to cherish -- it's designed to cherish a valorous ambition in soldiers and to encourage every species of military merit. And what I think with respect to the government's interest here and why there is a harm to that interest is that the point of these medals is that it's a big deal. You get one for doing something very important after a lot of scrutiny. And for the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers. It does do that. That is the government's interest. We think that is a real and substantial interest, and it's threatened here--
Sonia Sotomayor: But the reality here is that this gentleman was publicized, deriled for what he did. His public position was compromised, as is the case with almost everyone who's caught at lying.
Donald B. Verrilli, Jr.: --But, given that this is a category of calculated factual falsehood, we think the government has the authority and the constitutional -- and the constitutional space to try to deter this kind of speech, as well as allow for private attorneys. If I might--
Ruth Bader Ginsburg: Did the military -- did the military ask for this? You're claiming there's a special interest in seeing that a military honor is not debased.
Donald B. Verrilli, Jr.: --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.
Antonin Scalia: Did the Commander in Chief sign that, that legislation?
Donald B. Verrilli, Jr.: Yes, he did, Your Honor. Thank you.
John G. Roberts, Jr.: Thank you, Mr. Verrilli. Mr. Libby.
Jonathan D. Libby: Thank you, Mr. Chief Justice, and may it please the Court: The Stolen Valor Act criminalizes pure speech in the form of bare falsity, a mere telling of a lie. It doesn't matter whether the lie was told in a public meeting or in a private conversation with a friend or family member. And the law punishes false claims to a military award regardless of whether harm results or even is likely to result in an individual case.
John G. Roberts, Jr.: What is -- what is the First Amendment value in a lie, pure lie?
Jonathan D. Libby: Just a pure lie? There can be a number of values. There is the value of personal autonomy.
John G. Roberts, Jr.: The value of what?
Jonathan D. Libby: Personal autonomy.
John G. Roberts, Jr.: What does that mean?
Jonathan D. Libby: Well, that we get to -- we get to exaggerate and create--
John G. Roberts, Jr.: No, not exaggerate -- lie.
Jonathan D. Libby: --Well, when we create our own persona, we're often making up things about ourselves that we want people to think about us, and that can be valuable. Samuel Clemens creating Mark Twain. That was creating a persona, and he made things up about himself--
John G. Roberts, Jr.: Well, but that was for literary purposes. No one is suggesting you can't write a book or tell a story about somebody who earned a Medal of Honor and it's a fictional character, so he obviously didn't. It just seems to me very different.
Jonathan D. Libby: --Perhaps. But there are other things. In addition to the fact that people tell lies allows us to appreciate truth better.
Samuel A. Alito, Jr.: 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?
Jonathan D. Libby: Yes, Your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function.
Stephen G. Breyer: Obvious example. Are there Jews hiding in the cellar? No.
Jonathan D. Libby: Well, that's right.
John G. Roberts, Jr.: That's not a statement about one's self. This is--
Jonathan D. Libby: And that's--
Stephen G. Breyer: Are you hiding Jews in the cellar?
John G. Roberts, Jr.: --Excuse me. Sorry. [Laughter] Seems to me that the Stolen Valor Act is more narrow than that. And I would say, in that situation, you would not describe what the individual in Justice Breyer's hypothetical was as simply telling a false statement about himself. It is about whether there is someone hiding in the attic. It is not about himself.
Jonathan D. Libby: --Well, perhaps, just dealing with an example under the Stolen Valor Act, if a grandfather were to make up a story that he had won a medal in order to persuade a grandchild to--
John G. Roberts, Jr.: In order to--
Jonathan D. Libby: --to join the military--
John G. Roberts, Jr.: --It seems to me that that's missing the limitation that the government has read into this statute: Not damage, not for parody, not to avoid the discovery of someone who should be hidden, not in order to do something with respect to one's grandson. It's just a purely false statement about one's self. What -- what -- what is the First Amendment value in that, again?
Jonathan D. Libby: --Well, another value is the fact that the purpose of the First Amendment was a limit on government power. It's -- it's -- our founders believed that Congress as a general principle doesn't get to tell us what we as individuals can and cannot say.
John G. Roberts, Jr.: Well, of course they do in countless areas, the state does, whether you're talking about defamation, trademark, perjury, all sorts of things. You can't adopt that as a general principle and apply it without regard to the situation.
Jonathan D. Libby: Well, that's right, Mr. Chief Justice. But in all of those examples, those are examples where we have harm attached to the falsehood.
Antonin Scalia: Well, sometimes the harm is just impairment of governmental purposes, such as section 1001, which criminalizes the making of a false statement to any Federal agent, for Pete's sake. How do you justify that? Because the making of the false statement impairs a governmental investigation. And what is being urged here is that the making of this type of a false statement impairs the government's ability to honor valorous members of the armed forces.
Jonathan D. Libby: Well, we believe there is a difference there, Your Honor. With respect to 1001, there's the substantial risk of imminent harm to a government investigation. Whether it in fact causes that direct harm, there is still a significant risk of imminent harm resulting from telling a lie to a government investigator.
Elena Kagan: But, Mr. Libby, you've suggested to us that we should apply strict scrutiny to all of these cases. Now, almost nothing passes strict scrutiny. Why should 1001 pass strict scrutiny? I mean, it seems to me you're proposing a test that would invalidate all of the laws on the books regarding false statements.
Jonathan D. Libby: Well, no, Your Honor. What we're suggesting is false statements -- false statements laws do have a history in this country. And the Court could recognize a historical category of imminent harm or potential risk of imminent harm to government functions. And perjury certainly falls into that category. 1001 very well may fit into that category. Since the beginning of our nation, Congress has passed these various false statement laws.
Antonin 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.
Jonathan D. Libby: Well--
Antonin Scalia: By charlatans. That's what Congress thought. Is that utterly unreasonable, that we can't accept it?
Jonathan D. Libby: --Justice Scalia, it's not entirely clear what Congress thought here because Congress held no hearings on this. It made a broad general finding that false statements -- on the reputation--
Anthony M. Kennedy: Well, it's a matter -- it's a matter of common sense that it seems to me that it demeans the medal. Let me ask you this: What do you do with the statute that prohibits the wearing of a medal that has not been earned?
Jonathan D. Libby: --Wearing medals is a slightly different category because there you're dealing with conduct rather than content.
Anthony M. Kennedy: Well, I'm not so sure. You know, the Tinker case with the arm band; it's purely expressive speech, it seems to me. I think if you prevail here that the wearing prohibition must also be in serious doubt.
Jonathan D. Libby: It may be or it may be in doubt under certain situations where one is wearing a medal. But certainly Congress has an interest in protecting non-expressive purposes of wearing the medals.
Anthony M. Kennedy: I think it is, the whole purpose of the person who puts the medal on his tuxedo that he didn't earn is an expressive purpose. That's pure expression.
Jonathan D. Libby: It may be, Your Honor. But again, we view it under a different prism.
Ruth Bader Ginsburg: Why? I mean, it's expressive. One is I am speaking through conduct and the other is I'm speaking through words. You wear the medal and you are saying, I am a Medal of Honor winner.
Jonathan D. Libby: That's right. And as I said, it may ultimately be the case that the Court finds that, if in fact it's unconstitutional--
Ruth Bader Ginsburg: So you think wearing--
Jonathan D. Libby: --this provision, that it could be.
Ruth Bader Ginsburg: --that the wearing of a military decoration that you haven't earned, that that's also of questionable consistency with the First Amendment?
Jonathan D. Libby: It may be. But, again, it would depend on the circumstances.
Ruth Bader Ginsburg: No circumstances. You go out in the street with the medal on you for everybody to see.
Jonathan D. Libby: If -- if there is -- if Congress does not have a non-speech purpose for prohibiting the wearing of the medals, then if it's strictly an expressive purpose, then, yes, there would be a significant First Amendment problem.
Anthony M. Kennedy: Well, don't you think that's the case? There is no non-expressive purpose that I can think of.
Jonathan D. Libby: Well -- and that very well may be. What I can say is in this case what we're dealing with is strictly a content-based regulation on speech.
Samuel A. Alito, Jr.: 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? If you -- if you say that, then the -- the classic case of intentional infliction of emotional distress is unconstitutional, going up to someone and saying falsely, your -- your child has just been run over by a bus. So how do we determine which harms are sufficient?
Jonathan D. Libby: I believe -- what we believe the right way of looking at this is you -- you determine whether or not there is imminent harm or a significant risk of imminent harm to an individual or to a government function that would result from the speech.
Samuel A. Alito, Jr.: When you say imminent, you mean -- what do you mean by that?
Jonathan D. Libby: I guess I'm suggesting the Brandenburg standard, which is--
Samuel A. Alito, Jr.: Well, if that's the standard then most of the prosecutions for making false statements to a Federal law enforcement officer are not going to survive, are they?
Jonathan D. Libby: --Well, but the issue is what about the law. And the issue with 1001 and those false statement statutes is the substantial risk of imminent harm to the government that could result from the falsehood. So while certainly it may not result in a particular case, but the substantial risk of imminent harm--
Samuel A. Alito, Jr.: Well, then you're not really talking about imminent harm, I don't think. You're just talking about harm.
Jonathan D. Libby: --Well, when one lies to a government investigator, presumably you're doing it in order to send them in the wrong direction, even if it doesn't do that. So the harm may not be there, but there is certainly a significant risk of harm that the government has the right to protect itself from. And that's why we believe that's where you draw the line. And that's where this Court appears to have drawn the line in those categories of speech that it has said are unprotected, such as--
Elena 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?
Jonathan D. 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.
Elena Kagan: So, boy, I mean, that's a big concession, Mr. Libby. Then you're saying, you can only win this case if this Court decides that the Gertz statement was a kind of overstatement, an exaggeration, puffery.
Jonathan D. Libby: Well -- we do -- well, we do have the situation where we believe the statute currently does cover: Someone could be prosecuted for engaging in parody or satire or exaggeration. Certainly there is nothing on the face of the statute to suggest that those--
Ruth Bader Ginsburg: But the government has said: That's not how we read the statute, and the courts read statutes to avoid a constitutional collision. So let's assume that we are not going to cover performances, satire; it's just a baldfaced lie. That's all that this covers.
Jonathan D. Libby: --Then it's still our position that it's still a -- that all speech is presumptively protected unless we go back and it fits into one of the historical categories of speech that this Court has found historically is unprotected. And there falsity certainly has never previously been recognized by this Court as being an unprotected category of speech.
Sonia Sotomayor: Counselor, it might--
John G. Roberts, Jr.: I don't understand the government to argue that the speech at issue here is totally unprotected. I understand them to argue -- I mean, it is totally unprotected. I understand them to argue that it can be limited under its "breathing space" rationale. In other words, it's not within one of the categories of totally unprotected speech. You do have to analyze it under the First Amendment and you analyze it to determine if it chills protected speech.
Jonathan D. Libby: I suppose I read the government's argument differently. As I read the government's argument, it's that it's entitled to, at most, limited protection. So the government seems to start from the presumption that it's not fully protected speech, whereas, of course, what we should be starting with is the presumption that it is fully protected speech unless this Court has previously said it's in one of these historical categories of unprotected speech.
Sonia Sotomayor: --May I -- if I understood your argument, you're saying historically we have not protected false statements that cause harm. I think that's your argument.
Jonathan D. Libby: That's correct, yes, Your Honor.
Sonia Sotomayor: All right. Assuming -- so it's -- we do protect false statements presumptively, but the historical exceptions, like defamation, are those that cause harm. So I go back to Justice Alito's question, because you really haven't answered his question. You've dealt with the government process cases, although we could argue about whether that's protecting a process or protecting a government right to truthful information. That's a different issue. But the question is how do you deal with the intentional infliction of emotional distress? Because damage, we require injury, and it's defined under law what kind of injury. So tell me how you define harm in the nongovernmental situation, number one, and then tell me why that -- this situation doesn't fit that definition.
Jonathan D. Libby: Well, in the situation with intentional infliction of emotional distress, you're arguing with an instantaneous harm, a mental distress that results from the false statement. So there -- there's imminent harm as a result of -- that results in intentional infliction of emotional distress, a false light false--
Sonia Sotomayor: So why isn't the outrage that medal winners, legitimately entitled medal winners, experience in seeing fake people, hearing fake people claim a medal, why isn't that comparable?
Jonathan D. Libby: --Well, I don't believe that fits into the same category of mental distress that we look at in intentional infliction of emotional distress. Certainly people are entitled to be upset by these false claims. I mean, I'm personally upset by these false claims. But the fact that there is a certain level of upset doesn't mean that you're harmed in the sense of, of the intentional infliction of emotional stress tort, and so what we're dealing with here is simply a non-instantaneous harm. Now what the government has suggested is that there is no harm that really results from a single claim; that Mr. Alvarez's falsehood did not cause harm to any individuals.
Samuel A. Alito, Jr.: 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?
Jonathan D. 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--
Stephen G. Breyer: Why not? Because, after all, we're willing to protect the Olympics Committee when a false person saying he's the Olympics Committee might deprive the Olympics Committee of a penny, while here they are saying that to win this great medal, say the Congressional Medal of Honor, the highest award in the military the nation can give, you're deserving of the most possible, grandest possible respect, and we don't even want you to have to think about somebody having taken that name falsely, and so we will just criminalize it to discourage such activity that undermines the very thought and purpose of giving the medal. All right. So I'm just saying in my mind there is real harm, and there is real harm and yet I can think of instances where we do want to protect false information. And I want you to accept that as a given because that isn't my question. My question is: If I'm right that there are very good First Amendment reasons sometimes for protecting false information, and if this also would cause serious harm that the government is aiming after, are there less restrictive ways of going about it? And, if so, what and why?
Jonathan D. Libby: --There are. First of all, more speech. There is time to fix the problem. If someone tells a lie about having received an honor, there is time for them to be exposed. And in fact that's what typically happens--
Antonin Scalia: The government is going to hire people to follow, you know -- is that realistic?
Jonathan D. Libby: --Well, what--
Antonin Scalia: I mean, there is a sanction. You know when there is a sanction in place you think twice before you tell the lie. But if there is no sanction except you might be exposed, who's going to expose you? That sanction already exists, and there are a lot of people nonetheless who tell the lie. You really expect the government to hire investigators to go around the country outing people who falsely claim military honors? That's not going to happen.
Jonathan D. Libby: --Well, Justice Scalia, isn't that exactly what's happening right now with this law? Because the law is on the books, the law is sending FBI agents out to investigate these allegations. How do they find out about it? It's because it's reported. Individuals hear the statement and they think it may be false. They investigate it. And -- and, and conduct their own investigations. So that's what happens. And that's what's supposed -- that's -- that's the whole idea of more speech.
Stephen G. Breyer: Is there anything else -- under that circumstance, that the threat of criminal prosecution might discourage from lying, who would never be caught. So at least as to that set, exposure won't work. So you have a less restrictive alternative that helps some but not completely. Are there others?
Jonathan D. Libby: Well, of course if you're never caught, then under the government's theory, then no one has been harmed individually or--
Stephen G. Breyer: Not under my theory. 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.
Jonathan D. Libby: --Sure. The military can redouble its efforts at honoring those who are in fact entitled to the awards. There was a Congressional hearing that suggested that the military has been a little lax in identifying true heroes and awarding them medals. So that can be done. The government can publicize the names of true winners. It could create educational programs to let the nation know what it takes to win these awards, what these awards are, who has won them. All the heroic activities--
Antonin Scalia: How about giving a Medal of Shame to those who have falsely claimed to have earned the Medal of Valor? [Laughter] I think that would be good.
Jonathan D. Libby: --Well, Your Honor -- actually, that's certainly something the government could do.
John G. Roberts, Jr.: Well, not under your theory, right? I mean, it's still a sanction for telling something that you say is protected under the First Amendment, whether you get 6 months or a Medal of Shame doesn't matter under your theory.
Jonathan D. Libby: Well, there is a significant difference between a criminal sanction that puts someone in prison versus simply exposing them for what they are, which is a liar. And Mr. Alvarez, whether or not he in fact was sentenced to a crime, he still was exposed for who he was, which was a liar.
Ruth Bader Ginsburg: Suppose -- suppose the statute were amended, as has been proposed, to require an intent to obtain anything of value.
Jonathan D. Libby: That would turn the law into a fraud statute. And of course, fraud is an unprotected category of speech. So that certainly would be a constitutional law.
Ruth Bader Ginsburg: But that wouldn't -- that wouldn't reach this speaker. Is that -- that wouldn't reach Alvarez, because he didn't obtain anything of value.
Jonathan D. Libby: Well, that's -- I mean, that's not what we have here. What we do know is that Mr. Alvarez did not obtain a thing of value.
John G. Roberts, Jr.: How do we -- how do we know that? He was politically active, right?
Jonathan D. Libby: Yes.
John G. Roberts, Jr.: Doesn't it help a politician to have a Congressional Medal of Honor?
Jonathan D. Libby: Perhaps, Your Honor. I mean, for -- certainly there are many people out there that would consider that to be a great thing. There are also a lot of people out there who don't know what it is. And so to them, it might not mean a whole lot.
John G. Roberts, Jr.: But it seems to me that your willingness to say that this statute is valid so long as there's some benefit to the person who lies, it's an awfully big concession.
Jonathan D. Libby: Well, it would -- if it -- again, if Congress were to amend the law to require that it be done with the intent to obtain a thing of value, again, it becomes fraud. And fraud is something that the government does have the right to prosecute.
Antonin Scalia: So a thing of value, it has to be something of commercial value, right? Just to obtain praise and the higher esteem of your fellow citizens, that's -- that's not enough.
Jonathan D. Libby: Well, Your Honor--
Antonin Scalia: You have to get a penny out of it, right?
Jonathan D. Libby: --As I understand the proposed amendment, it just says anything of a non de minimis value. How that is ultimately interpreted--
Anthony M. Kennedy: Just a basic definition of fraud in the criminal law.
Jonathan D. Libby: --That's right. Now, could it -- could it be a nonpecuniary thing of value? As it's currently proposed, yes.
John G. Roberts, Jr.: So if he -- so if he makes this statement at a debate when he's running for office, then you can prosecute him, because getting the office is presumably something of value. It presumably has some pecuniary aspect to it.
Jonathan D. Libby: Perhaps, Your Honor. And, again, it may come down to how the courts ultimately interpret a thing of value. It's not clear that simply trying to obtain a vote from somebody is necessarily a thing of value, would be considered a thing of value. Obviously, if you promise to give up your votes in office in return for support, that would be a little different.
Antonin Scalia: What if he just gets the cheers of the crowd, he's up there. I'm a Congressional Medal of -- the crowd cheers and they give him a parade down Main Street. Is -- is that something of value?
Jonathan D. Libby: It -- it could be. Again, it -- it will come down to over time, how that ultimately gets--
Samuel A. Alito, Jr.: But that's not -- the answer is would the First Amendment permit that.
Jonathan D. Libby: --That's a difficult question, Your Honor.
Samuel A. Alito, Jr.: Well, that's sort of the question we have to answer here. [Laughter]
Jonathan D. Libby: Sure. I get that.
Samuel A. Alito, Jr.: Suppose what the person gets is -- is a date with a potential rich spouse. Would that be enough?
Jonathan D. Libby: Your Honor, I think when it comes -- when you get into the situation where you're getting something like a date, I do not know that -- I certainly wouldn't consider that a non de minimis thing of value, but--
Samuel A. Alito, Jr.: Some people might have a different opinion. [Laughter]
Jonathan D. Libby: --Well, that -- that -- and that may be, which is why, should that ultimately become the law, courts would have to look at that very closely.
Stephen G. Breyer: Well, how would it work in the law now, where we have similar statutes, and there's an additional requirement when you're imitating, say, a Federal officer or somebody else you shouldn't, you have to perform an overt act that asserts authority that the impersonator claims to have. What does that add? Does it add enough to just make it not pure speech, to limit -- to wall off the things about -- the things that we're worried about in the First Amendment. Or there's another one, you have to falsely assume or exercise powers, duties and privileges. Those are ways statutes have of limiting this thing. How does that work?
Jonathan D. Libby: Well, when you get into the issue of impersonation, then you're -- the Court perhaps would be assessing it under the amount of imminent harm to an individual that can--
Stephen G. Breyer: Nothing to do with harm. It's a way of walling off things that are of concern under the First Amendment from those that aren't. And what they use -- I read you what they use -- performing -- you know -- you know the language; it's written about in the briefs. I just want to know how you would think about a statute that imported that kind of language, which is limiting language.
Jonathan D. Libby: --It would be important, certainly in the First Amendment context, to limit the language as much as possible. You want to make it as narrow as possible, because, again, we're supposed to start from the presumption that we -- we have the right to say pretty much what we want to say, and then we start to limit it where. Again -- and, I guess, it goes again back to what this Court said in Stevens and Entertainment Merchants, which is, is it one of these historically unprotected types of speech that is not entitled to constitutional protection? Unless the Court has additional questions--
John G. Roberts, Jr.: Thank you, Mr. Libby. General Verrilli, you have 3 minutes remaining.
Anthony M. Kennedy: My -- my only -- one of my questions is the slippery slope problem, college degrees and so forth. Could you address that?
Donald B. Verrilli, Jr.: Yes, Your Honor. The -- think the "breathing space" analysis does a very substantial degree of work in controlling what Your Honor is describing as a slippery slope problem. The government's got to have a substantial interest--
Anthony M. Kennedy: But--
Donald B. Verrilli, Jr.: --the statute's got to be narrowly drawn. It's got to meet all of those--
Anthony M. Kennedy: --College degrees.
Donald B. Verrilli, Jr.: --Well, as I think I said in my -- in my opening statement, that -- I actually think that's a case in which you could argue that one either way, because there might be, if the government articulated a substantial interest in protecting its--
Elena Kagan: How about extramarital affairs?
Donald B. Verrilli, Jr.: --Excuse me, Your Honor?
Elena Kagan: The government has a strong interest in the sanctity of the family, the stability of the family, so we're going to prevent everybody from telling lies about their extramarital affairs.
Donald B. Verrilli, Jr.: In addition to the -- in addition to the governmental interests, Your Honor, there's -- it's got to be tailored in a way that avoids chill, and I think it would be very difficult in that situation--
Elena Kagan: This isn't about the person's own experience, that the person knows everything about; you either had one or you didn't have one.
Donald B. Verrilli, Jr.: --That's right. And that's a hard case. But I do think, with respect to the chilling effect analysis, you -- you would, I think, have a great deal of difficulty sustaining that statute. But of course, that's not the kind of statute that we have here. This is a targeted statute that's designed to deal with a particular--
Stephen G. Breyer: The trouble is you can think of 10,000 instances that meet your criteria that one candidate or another could bring up in a political campaign -- and we don't know what will come up, but I can easily think of examples. And then if this is lawful and constitutional, then you have people in political campaigns suddenly worrying that the U.S. attorney is going to come in and start indicting him. That's part of the chilling effect. And you've assumed you can get around this chilling effect, but I'm less certain.
Donald B. Verrilli, Jr.: --Well, I think -- but that's where I think the "breathing space" analysis requires before a statute gets upheld that it not have that kind of chilling effect.
Antonin Scalia: You have to--
Donald B. Verrilli, Jr.: --this statute doesn't and that's the key here. This statute doesn't.
Sonia Sotomayor: Counsel, it seems to me that you're asking us to value the speech in context. We're not talking about the effect of the speech and whether you can regulate that. You're asking us to say, you know, the guy who says he's a college graduate in a political campaign, that could chill political speech. So in that lie in that context, you can't sanction. But you can sanction that lie in a different context. On a date. I don't know, because on a date, it doesn't chill political speech, and it will induce a young woman to date someone who she thinks is more of a professional, because that harms the parents, it harms the family.
Donald B. Verrilli, Jr.: May I answer, Mr. Chief Justice?
John G. Roberts, Jr.: Oh, yes.
Donald B. Verrilli, Jr.: Thank you. The Respondent has conceded that this statute chills nothing. That should be a sufficient answer to Your Honor's concern that with respect to other statutes in the future, they can be evaluated to determine whether or not they impose a -- a chill that would lead as an instrumental matter to the conclusion that they ought not to be found to satisfy the First Amendment. As Respondent concedes, there is no chill here, so this statute is constitutional.
John G. Roberts, Jr.: Thank you, General, counsel. The case is submitted.