Supreme Court Update: United States v. Alvarez (11-210) and Salazar v. Ramah Navajo Chapter (11-551)

July 5, 2012 Supreme Court Update

Greetings, Court fans!

This Update addresses United States v. Alvarez (11-210), striking down the Stolen Valor Act as prohibiting too much speech under the First Amendment, and Salazar v. Ramah Navajo Chapter (11-551), finding that the federal government must honor certain contractual obligations to Indian Tribes, even where those obligations are subject to the availability of appropriations.

United States v. Alvarez (11-210) limited Congress's ability to regulate the speech of habitual, dishonorable liars. The Stolen Valor Act of 2005, 18 U.S.C. § 704, made it a crime to falsely represent oneself as having been awarded a U.S. military decoration or medal – and if the lie was about the Congressional Medal of Honor, a person could be imprisonment for as long as one year. When Xavier Alvarez falsely boasted of his bravery as a marine and his Medal of Honor, he did not do so to secure any benefit or financial advantage, but it led to a criminal conviction. In a rather unusual split, Justice Kennedy, joined by the Chief and Justices Ginsburg and Sotomayor, wrote a plurality opinion to reverse, viewing the Act as too broad a content-based restriction on speech to survive the "exacting scrutiny" required by the First Amendment. Justice Kennedy paid homage to the bravery of those awarded the Medal of Honor, but declined to make false statements a general category of speech that the government may prohibit. Where false statements have been prohibited, they have been related to a government function, like prohibiting perjury or false statements to a government official on official matters, or the speech created some legally cognizable harm. This Act prohibited speech simply because it was false and without limits on place or context. Justice Kennedy was not convinced that the condemned speech actually diminished the importance of military honors, and the speech was (even without criminal conviction) subject to public condemnation and ridicule. Plus, revealing the falsity and protecting the meaning of the Medal of Honor can be facilitated by a database of recipients to check claims without limiting speech. Congress did not meet its heavy burden to restrict speech based on its content.

Justice Breyer, joined by Justice Kagan, concurred in the judgment, providing the votes needed to reverse the conviction. But the concurrence was not as categorical as the plurality opinion, instead applying a balancing test for banning "lies." Justice Breyer catalogued instances of false speech that are tolerated in society as well as false speech that may be prohibited due to context and the harm it creates in relation to any purported benefit. Permissible prohibitions on speech have "limitations [that] help to make certain that the statute does not allow its threat of liability or criminal punishment to roam at large, discouraging or forbidding the telling of the lie in contexts where harm is unlikely or the need for the prohibition is small." He held out hope for Congress to enact a more "finely tailored" law.

In dissent, Justice Alito – as he did in last Term's lone dissent in the case addressing bans on protests near the funerals of fallen soldiers – would affirm legal action against those who besmirch the honor of courageous soldiers, finding no First Amendment protection for patently false factual speech with no possible redeeming value. This time, he was joined in dissent by Justices Scalia and Thomas. He catalogued the remarkable number of false public claims of military honors, and he discussed the difficulty of upholding the value of those honors by any means other than the one Congress chose. In Justice Alito's view, the statute was already tailored to the problem it meant to solve and could not chill protected speech.

In Salazar v. Ramah Navajo Chapter (11-551), the Court held that the federal government must honor certain contractual obligations to Indian Tribes, even when it has made those obligations "subject to the availability of appropriations." If you thought the last split was interesting, this case brought about one of the most unusual configurations of the Term. Justice Sotomayor wrote for a 5-4 majority comprised of Justices Scalia, Kennedy, Thomas and Kagan, while the Chief led the dissent, joined by Justices Ginsburg, Breyer, and Alito.

The case involved the Indian Self-Determination and Education Assistance Act ("ISDA"), which required the Secretary of the Interior to enter into contracts with Tribes that provided certain services, such as education and law enforcement, that would otherwise have been provided by the federal government. The Act required the Secretary to pay the full amount of the Tribes' contract costs, subject to available appropriations. For many years, Congress did not appropriate sufficient funds, and the Secretary paid the contracting Tribes a pro rata share of the appropriated funds, rather than their full costs. Relying on past ISDA precedent, the majority held that, since Congress had appropriated sufficient funds to pay any individual contracting Tribe in full, the "subject to available appropriations" language did not allow the government to "back out of its contractual promise to pay each Tribe's full contract support costs." The Court reasoned that, "when an agency makes competing contractual commitments with legally available funds and then fails to pay, it is the Government that must bear the fiscal consequences, not the contractor." The majority recognized that Congress had created the problem, by requiring the Secretary to enter into Tribal contracts and pay the Tribes in full, while appropriating insufficient funds to fully pay each contractor. It was therefore up to Congress, the Court held, to resolve the dilemma, noting that "Congress is not short of options" for coming up with the money to pay or, alternatively, reducing the government's contractual obligations to the Tribes in the future.

The dissent relied primarily on language capping the amount of appropriations that could be used for Tribes' contract support costs, as well as a provision in the Act stating that the Secretary was not required to reallocate other funding for Tribes in order to make funds "available" to Tribes under the ISDA. In light of these provisions, the Chief reasoned, once the Secretary had used all of the funds specifically appropriated for Tribal contract costs, no other funds could be used to pay those costs without violating the appropriations limitation, and therefore there were no other appropriations "available" to pay the remaining contract costs. The dissent noted that, because of these unusual provisions, "[t]his is hardly a typical government contracts case," fending off any suggestion that the Court's decision set a potentially broader, troubling precedent for the government.

Hope you had a great July 4th!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400