False but Protected Speech

Opinions & Commentaries

Sullivan, a Commissioner of the City of Montgomery, Alabama, brought a civil libel suit against the publisher of the New York Times and four individual black clergymen in Alabama for running an ad in the paper. The ad described police action against student demonstrators and a leader of the civil rights movement. Some of the statements in the ad were false. A lower court found in favor of Sullivan, awarding him damages of $500,000.

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Hustler magazine parodied Jerry Falwell, a nationally-known minister and public commentator, in a cartoon that imagined Falwell recalling his first sexual experience with his mother in an outhouse. The cartoon included a disclaimer that it was an “ad parody not to be taken seriously.” Falwell received damages for intentional infliction of emotional distress from the trial court and the Fourth Circuit.

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The Stolen Valor Act makes it a crime to falsely claim receipt of military decorations or medals and provides an enhanced penalty if the Congressional Medal of Honor is involved. 18 U. S. C. §§704 (b), (c). Respondent pleaded guilty to a charge of falsely claiming that he had received the Medal of Honor, but reserved his right to appeal his claim that the Act is unconstitutional under the First Amendment.

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