Supreme Court rejects damage claim in HIV privacy case

AppId is over the quota
AppId is over the quota
The Supreme Court limits "actual damages" under the Privacy ActA California man sued when the government publicly revealed his HIV statusThe 5-3 ruling pitted the court's conservative majority against the liberal minorityJustice Elena Kagan, the former solicitor general, did not participate

Washington (CNN) -- A divided Supreme Court ruled Wednesday against a California pilot who sued after the federal government publicly revealed his HIV status.

In a 5-3 ruling, the high court decided Stanmore Cooper's claims of mental and emotional distress are not covered under the Privacy Act.

"The Privacy Act does not unequivocally authorize damages for mental or emotional distress and therefore does not waive the government's sovereign immunity for such harms," Justice Samuel Alito wrote for the conservative majority.

Three liberal justices dissented, while a fourth, former Solicitor General Elena Kagan, did not participate.

In a statement Wednesday, Cooper said it was "discouraging that a majority of the court sided with the government."

Cooper became a licensed recreational pilot in 1964, but two decades later, the San Francisco man was diagnosed with HIV. As his condition worsened, he let his private pilot's certificate and his airman medical certificate lapse.

In 1996, Cooper applied for long-term disability with the Social Security Administration.

"I was in bad shape, I didn't have long to live," he said last year. But his health improved thanks to a cocktail of anti-retroviral therapy. He went back to work and wanted to fly again.

"I found out they were issuing medicals (exemptions) and I reapplied" to the Federal Aviation Administration "without revealing my HIV status," he said. "Big mistake."

He received his new pilot's certificate but, unknown to him, a joint local-federal initiative called Operation Safe Pilot was launched in 2002. Using a spreadsheet, the agencies shared and compared the names and personal data of about 45,000 pilots in Northern California, looking for potentially medically unfit individuals who were also receiving federal benefits.

Cooper was among four dozen or so pilots tagged as a "person of interest." When confronted by government agents, he admitted to a misdemeanor charge of filing a false report.

He was sentenced to probation and fined, and his pilot's certificate was revoked. The retired business executive's name was listed in a federal press release and later, through his prosecution, Cooper's medical history suddenly was a matter of public record.

"I had been able to control those (with) whom I shared my information about my HIV status, limited to some co-workers, family, and close friends," he said "And suddenly that was out of my control."

Cooper, who was eventually allowed to fly again, sued.

"I chose not to reveal my HIV infection and that was a very bad thing," he said. "I took responsibility for it and I paid the price. I was punished. And I think now it's the government's turn to own up to breaking the law and take responsibility for what they did."

A federal judge found both the FAA and the Social Security Administration violated the Privacy Act with the information-sharing investigation, but said under the law, only "actual damages" could be collected by plaintiffs seeking redress.

Since Cooper made no claims for economic harm, such as lost wages or medical expenses, he was out of luck. The judge found "emotional injury" alone did not qualify and dismissed the lawsuit.

A federal appeals court reversed that decision, ruling for Cooper. The FAA then asked the high court to intervene.

During an hour of oral arguments last year, the justices stayed away from the specific claims of emotional harm made by Cooper, focusing instead on what the law says about qualifying for damages.

"The argument you have made -- and I certainly understand it, that this is the Privacy Act and so it's precisely these types of damages that you would be concerned about -- really cuts both ways," Chief Justice John Roberts said to Cooper's lawyer.

"What you are saying is this (law) covers a really big chunk of damages, because this is what the whole act was about," Roberts said. "And it seems to me that argument suggests that there is some weight to the government's point: That if you are going to get that, you really do need clearer" language in the law that would immunize the government to some extent, from a flood of hard-to-disprove lawsuits.

The ambiguity has divided lower courts for years, and privacy experts said the ease with which the government can collect and share information in the digital age makes the issue of personal privacy liability ripe for review.

Justice Ruth Bader Ginsburg repeatedly hammered away at the government lawyer arguing for the FAA. She said the federal damages provision in question is similar to state tort claims that include both emotional and financial harm.

"The person who is subject to this, to this embarrassment, this humiliation, doesn't have out-of-pocket costs, but is terribly distressed, nervous, anxious, and all the rest," Ginsburg said. "The act that the Congress is reaching, the impact is of that nature. I mean, pecuniary (monetary) damages ordinarily attend conduct that embarrasses, humiliates you, causes mental distress."

Eric Feigin of the Justice Department said the Privacy Act's language may be interpreted as allowing damages for such things as "humiliation, embarrassment and mental anguish," but said because the phrase "actual" damages remains vague, the government should get the benefit of the doubt, tipping the case in its favor.

"Simply because a plaintiff may have suffered an adverse effect" from the privacy violation, argued Feigin, "doesn't mean that the plaintiff suffered actual damages."

Raymond Cardozo, Cooper's lawyer, pointed out during the hearing that his client's information was made public and his name and HIV status are still posted on a federal government database. He also made a larger argument, that his client's dilemma is one that may affect all Americans.

"Congress passed this act to restore the citizens' faith in their government, and it made a solemn promise to the American citizens that in cases of intentional and willful violation, the United States shall be liable for actual damages," Cardozo said. "Today, the government is proposing that "actual damages" be read in a way that renders this act virtually irrelevant. That makes a mockery of that solemn promise."

Cooper attended the public session at the court and expressed optimism afterward he would prevail.

"They've betrayed my trust and I can't get that back," Cooper said at the time. "There was nothing to lose here. I had to do it. It was the right thing to do."

The case is Cooper v. FAA (10-1024).

CNN's Tom Cohen and Kate Bolduan contribute to this report.

View the original article here

Supreme Court rejects damage claim in HIV privacy case

AppId is over the quota
AppId is over the quota
The Supreme Court limits "actual damages" under the Privacy ActA California man sued when the government publicly revealed his HIV statusThe 5-3 ruling pitted the court's conservative majority against the liberal minorityJustice Elena Kagan, the former solicitor general, did not participate

Washington (CNN) -- A divided Supreme Court ruled Wednesday against a California pilot who sued after the federal government publicly revealed his HIV status.

In a 5-3 ruling, the high court decided Stanmore Cooper's claims of mental and emotional distress are not covered under the Privacy Act.

"The Privacy Act does not unequivocally authorize damages for mental or emotional distress and therefore does not waive the government's sovereign immunity for such harms," Justice Samuel Alito wrote for the conservative majority.

Three liberal justices dissented, while a fourth, former Solicitor General Elena Kagan, did not participate.

In a statement Wednesday, Cooper said it was "discouraging that a majority of the court sided with the government."

Cooper became a licensed recreational pilot in 1964, but two decades later, the San Francisco man was diagnosed with HIV. As his condition worsened, he let his private pilot's certificate and his airman medical certificate lapse.

In 1996, Cooper applied for long-term disability with the Social Security Administration.

"I was in bad shape, I didn't have long to live," he said last year. But his health improved thanks to a cocktail of anti-retroviral therapy. He went back to work and wanted to fly again.

"I found out they were issuing medicals (exemptions) and I reapplied" to the Federal Aviation Administration "without revealing my HIV status," he said. "Big mistake."

He received his new pilot's certificate but, unknown to him, a joint local-federal initiative called Operation Safe Pilot was launched in 2002. Using a spreadsheet, the agencies shared and compared the names and personal data of about 45,000 pilots in Northern California, looking for potentially medically unfit individuals who were also receiving federal benefits.

Cooper was among four dozen or so pilots tagged as a "person of interest." When confronted by government agents, he admitted to a misdemeanor charge of filing a false report.

He was sentenced to probation and fined, and his pilot's certificate was revoked. The retired business executive's name was listed in a federal press release and later, through his prosecution, Cooper's medical history suddenly was a matter of public record.

"I had been able to control those (with) whom I shared my information about my HIV status, limited to some co-workers, family, and close friends," he said "And suddenly that was out of my control."

Cooper, who was eventually allowed to fly again, sued.

"I chose not to reveal my HIV infection and that was a very bad thing," he said. "I took responsibility for it and I paid the price. I was punished. And I think now it's the government's turn to own up to breaking the law and take responsibility for what they did."

A federal judge found both the FAA and the Social Security Administration violated the Privacy Act with the information-sharing investigation, but said under the law, only "actual damages" could be collected by plaintiffs seeking redress.

Since Cooper made no claims for economic harm, such as lost wages or medical expenses, he was out of luck. The judge found "emotional injury" alone did not qualify and dismissed the lawsuit.

A federal appeals court reversed that decision, ruling for Cooper. The FAA then asked the high court to intervene.

During an hour of oral arguments last year, the justices stayed away from the specific claims of emotional harm made by Cooper, focusing instead on what the law says about qualifying for damages.

"The argument you have made -- and I certainly understand it, that this is the Privacy Act and so it's precisely these types of damages that you would be concerned about -- really cuts both ways," Chief Justice John Roberts said to Cooper's lawyer.

"What you are saying is this (law) covers a really big chunk of damages, because this is what the whole act was about," Roberts said. "And it seems to me that argument suggests that there is some weight to the government's point: That if you are going to get that, you really do need clearer" language in the law that would immunize the government to some extent, from a flood of hard-to-disprove lawsuits.

The ambiguity has divided lower courts for years, and privacy experts said the ease with which the government can collect and share information in the digital age makes the issue of personal privacy liability ripe for review.

Justice Ruth Bader Ginsburg repeatedly hammered away at the government lawyer arguing for the FAA. She said the federal damages provision in question is similar to state tort claims that include both emotional and financial harm.

"The person who is subject to this, to this embarrassment, this humiliation, doesn't have out-of-pocket costs, but is terribly distressed, nervous, anxious, and all the rest," Ginsburg said. "The act that the Congress is reaching, the impact is of that nature. I mean, pecuniary (monetary) damages ordinarily attend conduct that embarrasses, humiliates you, causes mental distress."

Eric Feigin of the Justice Department said the Privacy Act's language may be interpreted as allowing damages for such things as "humiliation, embarrassment and mental anguish," but said because the phrase "actual" damages remains vague, the government should get the benefit of the doubt, tipping the case in its favor.

"Simply because a plaintiff may have suffered an adverse effect" from the privacy violation, argued Feigin, "doesn't mean that the plaintiff suffered actual damages."

Raymond Cardozo, Cooper's lawyer, pointed out during the hearing that his client's information was made public and his name and HIV status are still posted on a federal government database. He also made a larger argument, that his client's dilemma is one that may affect all Americans.

"Congress passed this act to restore the citizens' faith in their government, and it made a solemn promise to the American citizens that in cases of intentional and willful violation, the United States shall be liable for actual damages," Cardozo said. "Today, the government is proposing that "actual damages" be read in a way that renders this act virtually irrelevant. That makes a mockery of that solemn promise."

Cooper attended the public session at the court and expressed optimism afterward he would prevail.

"They've betrayed my trust and I can't get that back," Cooper said at the time. "There was nothing to lose here. I had to do it. It was the right thing to do."

The case is Cooper v. FAA (10-1024).

CNN's Tom Cohen and Kate Bolduan contribute to this report.

View the original article here

Supreme Court rejects damage claim in HIV privacy case

AppId is over the quota
AppId is over the quota
The Supreme Court limits "actual damages" under the Privacy ActA California man sued when the government publicly revealed his HIV statusThe 5-3 ruling pitted the court's conservative majority against the liberal minorityJustice Elena Kagan, the former solicitor general, did not participate

Washington (CNN) -- A divided Supreme Court ruled Wednesday against a California pilot who sued after the federal government publicly revealed his HIV status.

In a 5-3 ruling, the high court decided Stanmore Cooper's claims of mental and emotional distress are not covered under the Privacy Act.

"The Privacy Act does not unequivocally authorize damages for mental or emotional distress and therefore does not waive the government's sovereign immunity for such harms," Justice Samuel Alito wrote for the conservative majority.

Three liberal justices dissented, while a fourth, former Solicitor General Elena Kagan, did not participate.

In a statement Wednesday, Cooper said it was "discouraging that a majority of the court sided with the government."

Cooper became a licensed recreational pilot in 1964, but two decades later, the San Francisco man was diagnosed with HIV. As his condition worsened, he let his private pilot's certificate and his airman medical certificate lapse.

In 1996, Cooper applied for long-term disability with the Social Security Administration.

"I was in bad shape, I didn't have long to live," he said last year. But his health improved thanks to a cocktail of anti-retroviral therapy. He went back to work and wanted to fly again.

"I found out they were issuing medicals (exemptions) and I reapplied" to the Federal Aviation Administration "without revealing my HIV status," he said. "Big mistake."

He received his new pilot's certificate but, unknown to him, a joint local-federal initiative called Operation Safe Pilot was launched in 2002. Using a spreadsheet, the agencies shared and compared the names and personal data of about 45,000 pilots in Northern California, looking for potentially medically unfit individuals who were also receiving federal benefits.

Cooper was among four dozen or so pilots tagged as a "person of interest." When confronted by government agents, he admitted to a misdemeanor charge of filing a false report.

He was sentenced to probation and fined, and his pilot's certificate was revoked. The retired business executive's name was listed in a federal press release and later, through his prosecution, Cooper's medical history suddenly was a matter of public record.

"I had been able to control those (with) whom I shared my information about my HIV status, limited to some co-workers, family, and close friends," he said "And suddenly that was out of my control."

Cooper, who was eventually allowed to fly again, sued.

"I chose not to reveal my HIV infection and that was a very bad thing," he said. "I took responsibility for it and I paid the price. I was punished. And I think now it's the government's turn to own up to breaking the law and take responsibility for what they did."

A federal judge found both the FAA and the Social Security Administration violated the Privacy Act with the information-sharing investigation, but said under the law, only "actual damages" could be collected by plaintiffs seeking redress.

Since Cooper made no claims for economic harm, such as lost wages or medical expenses, he was out of luck. The judge found "emotional injury" alone did not qualify and dismissed the lawsuit.

A federal appeals court reversed that decision, ruling for Cooper. The FAA then asked the high court to intervene.

During an hour of oral arguments last year, the justices stayed away from the specific claims of emotional harm made by Cooper, focusing instead on what the law says about qualifying for damages.

"The argument you have made -- and I certainly understand it, that this is the Privacy Act and so it's precisely these types of damages that you would be concerned about -- really cuts both ways," Chief Justice John Roberts said to Cooper's lawyer.

"What you are saying is this (law) covers a really big chunk of damages, because this is what the whole act was about," Roberts said. "And it seems to me that argument suggests that there is some weight to the government's point: That if you are going to get that, you really do need clearer" language in the law that would immunize the government to some extent, from a flood of hard-to-disprove lawsuits.

The ambiguity has divided lower courts for years, and privacy experts said the ease with which the government can collect and share information in the digital age makes the issue of personal privacy liability ripe for review.

Justice Ruth Bader Ginsburg repeatedly hammered away at the government lawyer arguing for the FAA. She said the federal damages provision in question is similar to state tort claims that include both emotional and financial harm.

"The person who is subject to this, to this embarrassment, this humiliation, doesn't have out-of-pocket costs, but is terribly distressed, nervous, anxious, and all the rest," Ginsburg said. "The act that the Congress is reaching, the impact is of that nature. I mean, pecuniary (monetary) damages ordinarily attend conduct that embarrasses, humiliates you, causes mental distress."

Eric Feigin of the Justice Department said the Privacy Act's language may be interpreted as allowing damages for such things as "humiliation, embarrassment and mental anguish," but said because the phrase "actual" damages remains vague, the government should get the benefit of the doubt, tipping the case in its favor.

"Simply because a plaintiff may have suffered an adverse effect" from the privacy violation, argued Feigin, "doesn't mean that the plaintiff suffered actual damages."

Raymond Cardozo, Cooper's lawyer, pointed out during the hearing that his client's information was made public and his name and HIV status are still posted on a federal government database. He also made a larger argument, that his client's dilemma is one that may affect all Americans.

"Congress passed this act to restore the citizens' faith in their government, and it made a solemn promise to the American citizens that in cases of intentional and willful violation, the United States shall be liable for actual damages," Cardozo said. "Today, the government is proposing that "actual damages" be read in a way that renders this act virtually irrelevant. That makes a mockery of that solemn promise."

Cooper attended the public session at the court and expressed optimism afterward he would prevail.

"They've betrayed my trust and I can't get that back," Cooper said at the time. "There was nothing to lose here. I had to do it. It was the right thing to do."

The case is Cooper v. FAA (10-1024).

CNN's Tom Cohen and Kate Bolduan contribute to this report.

View the original article here

Supreme Court rejects damage claim in HIV privacy case

AppId is over the quota
AppId is over the quota
The Supreme Court limits "actual damages" under the Privacy ActA California man sued when the government publicly revealed his HIV statusThe 5-3 ruling pitted the court's conservative majority against the liberal minorityJustice Elena Kagan, the former solicitor general, did not participate

Washington (CNN) -- A divided Supreme Court ruled Wednesday against a California pilot who sued after the federal government publicly revealed his HIV status.

In a 5-3 ruling, the high court decided Stanmore Cooper's claims of mental and emotional distress are not covered under the Privacy Act.

"The Privacy Act does not unequivocally authorize damages for mental or emotional distress and therefore does not waive the government's sovereign immunity for such harms," Justice Samuel Alito wrote for the conservative majority.

Three liberal justices dissented, while a fourth, former Solicitor General Elena Kagan, did not participate.

In a statement Wednesday, Cooper said it was "discouraging that a majority of the court sided with the government."

Cooper became a licensed recreational pilot in 1964, but two decades later, the San Francisco man was diagnosed with HIV. As his condition worsened, he let his private pilot's certificate and his airman medical certificate lapse.

In 1996, Cooper applied for long-term disability with the Social Security Administration.

"I was in bad shape, I didn't have long to live," he said last year. But his health improved thanks to a cocktail of anti-retroviral therapy. He went back to work and wanted to fly again.

"I found out they were issuing medicals (exemptions) and I reapplied" to the Federal Aviation Administration "without revealing my HIV status," he said. "Big mistake."

He received his new pilot's certificate but, unknown to him, a joint local-federal initiative called Operation Safe Pilot was launched in 2002. Using a spreadsheet, the agencies shared and compared the names and personal data of about 45,000 pilots in Northern California, looking for potentially medically unfit individuals who were also receiving federal benefits.

Cooper was among four dozen or so pilots tagged as a "person of interest." When confronted by government agents, he admitted to a misdemeanor charge of filing a false report.

He was sentenced to probation and fined, and his pilot's certificate was revoked. The retired business executive's name was listed in a federal press release and later, through his prosecution, Cooper's medical history suddenly was a matter of public record.

"I had been able to control those (with) whom I shared my information about my HIV status, limited to some co-workers, family, and close friends," he said "And suddenly that was out of my control."

Cooper, who was eventually allowed to fly again, sued.

"I chose not to reveal my HIV infection and that was a very bad thing," he said. "I took responsibility for it and I paid the price. I was punished. And I think now it's the government's turn to own up to breaking the law and take responsibility for what they did."

A federal judge found both the FAA and the Social Security Administration violated the Privacy Act with the information-sharing investigation, but said under the law, only "actual damages" could be collected by plaintiffs seeking redress.

Since Cooper made no claims for economic harm, such as lost wages or medical expenses, he was out of luck. The judge found "emotional injury" alone did not qualify and dismissed the lawsuit.

A federal appeals court reversed that decision, ruling for Cooper. The FAA then asked the high court to intervene.

During an hour of oral arguments last year, the justices stayed away from the specific claims of emotional harm made by Cooper, focusing instead on what the law says about qualifying for damages.

"The argument you have made -- and I certainly understand it, that this is the Privacy Act and so it's precisely these types of damages that you would be concerned about -- really cuts both ways," Chief Justice John Roberts said to Cooper's lawyer.

"What you are saying is this (law) covers a really big chunk of damages, because this is what the whole act was about," Roberts said. "And it seems to me that argument suggests that there is some weight to the government's point: That if you are going to get that, you really do need clearer" language in the law that would immunize the government to some extent, from a flood of hard-to-disprove lawsuits.

The ambiguity has divided lower courts for years, and privacy experts said the ease with which the government can collect and share information in the digital age makes the issue of personal privacy liability ripe for review.

Justice Ruth Bader Ginsburg repeatedly hammered away at the government lawyer arguing for the FAA. She said the federal damages provision in question is similar to state tort claims that include both emotional and financial harm.

"The person who is subject to this, to this embarrassment, this humiliation, doesn't have out-of-pocket costs, but is terribly distressed, nervous, anxious, and all the rest," Ginsburg said. "The act that the Congress is reaching, the impact is of that nature. I mean, pecuniary (monetary) damages ordinarily attend conduct that embarrasses, humiliates you, causes mental distress."

Eric Feigin of the Justice Department said the Privacy Act's language may be interpreted as allowing damages for such things as "humiliation, embarrassment and mental anguish," but said because the phrase "actual" damages remains vague, the government should get the benefit of the doubt, tipping the case in its favor.

"Simply because a plaintiff may have suffered an adverse effect" from the privacy violation, argued Feigin, "doesn't mean that the plaintiff suffered actual damages."

Raymond Cardozo, Cooper's lawyer, pointed out during the hearing that his client's information was made public and his name and HIV status are still posted on a federal government database. He also made a larger argument, that his client's dilemma is one that may affect all Americans.

"Congress passed this act to restore the citizens' faith in their government, and it made a solemn promise to the American citizens that in cases of intentional and willful violation, the United States shall be liable for actual damages," Cardozo said. "Today, the government is proposing that "actual damages" be read in a way that renders this act virtually irrelevant. That makes a mockery of that solemn promise."

Cooper attended the public session at the court and expressed optimism afterward he would prevail.

"They've betrayed my trust and I can't get that back," Cooper said at the time. "There was nothing to lose here. I had to do it. It was the right thing to do."

The case is Cooper v. FAA (10-1024).

CNN's Tom Cohen and Kate Bolduan contribute to this report.

View the original article here

Obama lawyer asks Supreme Court to save healthcare law - Reuters

AppId is over the quota
AppId is over the quota

1 of 14. Paul Clement (centre R, with blue tie and brown briefcase), who argued on behalf of the 26 states challenging the Obama health care law before the Supreme Court, departs with a group of state attorneys general after the third and final day of legal arguments over the Patient Protection and Affordable Care Act at the Supreme Court in Washington, March 28, 2012.

Credit: Reuters/Jonathan Ernst

By James Vicini and Joan Biskupic

WASHINGTON | Wed Mar 28, 2012 8:33pm EDT

WASHINGTON (Reuters) - The Obama administration's top courtroom lawyer made an impassioned plea on Wednesday for the Supreme Court to save President Barack Obama's healthcare law, capping three days of historic arguments that left it unclear how the nine justices would rule.

Having peppered lawyers for and against the law with questions for more than six hours over the three days, the justices withdrew to their chambers to begin up to three months of deliberation expected to yield a decision by late June.

Obama's healthcare overhaul, signed into law two years ago, is his signature domestic policy achievement. It remains a divisive issue among Americans and is likely to be a key issue ahead of the November 6 election in which he seeks a second term.

The justices took up two issues on the last day of arguments on Wednesday: whether the rest of the law could stand if the centerpiece requirement that most Americans get insurance or face a penalty is struck down; and the validity of expanding the state-federal Medicaid healthcare program for the poor.

After what critics called a poor performance on Tuesday, U.S. Solicitor General Donald Verrilli, arguing for the administration, closed his case with an emotional request that the justices uphold the law. Verrilli cited millions of people with chronic conditions such as heart disease, diabetes and breast cancer who would get health insurance under the law.

Congress made a judgment in passing the law, Verrilli said. "Maybe they were right, maybe they weren't." But he said the court should respect the policy judgment made by democratically elected lawmakers in their decades-long struggle to help millions of uninsured.

The law, which constitutes the $2.6 trillion U.S. healthcare system's biggest overhaul in nearly 50 years, seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring medical costs.

Unlike healthcare in other rich countries, the U.S. system is a patchwork of private insurance and restrictive government programs that has left tens of millions of people uninsured. The United States pays more on healthcare per person than any other country.

Critics of the law say it meddles too much in the lives of individuals and in the business of the states. They say that if the federal government can force people to buy health insurance, it would be able to force people to, for example, purchase American-made cars or join health clubs.

'FUNNY CONCEPTION OF LIBERTY'

Twenty-six of the 50 U.S. states and a small business trade group challenged the law in court. The lawyer for the states fighting the law, Paul Clement, told the court: "I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."

The fate of the wide-ranging law, including the mandate that most Americans buy health insurance by 2014, likely is in the hands of two key justices - Chief Justice John Roberts and Anthony Kennedy, who often casts the decisive vote.

The court appeared sharply divided along ideological lines, with the five Republican-appointed conservatives doubting the law would survive and the four Democratic-appointed liberals offering a strong defense for the statute.

If even one of the conservative justices joins the liberal wing on the court, the law would be upheld. If the conservatives stay united, the law would fall.

The states challenging the law say the rest of Obama's healthcare overhaul must go if the court strikes the insurance requirement. Clement, their lawyer, told the justices that the so-called individual mandate to obtain insurance or face a penalty was "essential to the entire scheme."

'TAKE THE HEART OUT'

That sentiment was shared by conservative Justice Antonin Scalia, who said that if the individual mandate was struck down, the entire law must go. "My approach would be if you take the heart out of the statute, the statute is gone," he said.

Chief Justice Roberts said the court would have difficulty figuring out what Congress really wanted to survive from the law because of horse-trading that went on when lawmakers crafted the legislation. The law was passed when Obama's fellow Democrats controlled both houses of Congress after a contentious fight with Republicans dead set against it.

Roberts also noted that the law had two purposes in its title, "Patient Protection and Affordable Care Act," and said it would be tough if not impossible to discern Congress' intent.

"That's just an inquiry that you can't carry out," he said.

Kennedy voiced concern about possible unintended consequences in the form of huge costs to insurance companies if the mandate - which would bring millions of healthy young people into the healthcare system and spread out costs - was invalidated alone.

"We would be exercising the judicial power if one ... provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended," Kennedy said. "By reason of this court, we would have a new regime that Congress did not provide for, did not consider."

The four liberal justices expressed deep reservations about tossing out the sweeping law that has hundreds of other provisions, some of them already in effect.

Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. "What's wrong with leaving it in the hands of people who should be fixing this, not us?"

Justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. "Why make Congress redo those?"

Another Obama administration lawyer, Edwin Kneedler, told the court that if the mandate was struck down, only two key provisions would also have to fall, those related to coverage for people's pre-existing conditions and limiting costs for those patients with a past medical history.

The justices are expected to meet in private on Friday to discuss the issues heard during the arguments this week and take a preliminary secret vote on how they plan to rule. The justices then will begin drafting their written opinions in the private confines of their chambers.

The justices also reviewed whether Congress violated the Constitution by prodding states to dramatically expand the state-federal Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans.

There did not appear to be a majority supporting the challenge to that expansion but like all of the issues in the case, the court appeared deeply divided along ideological lines.

Ginsburg said that while 26 states oppose the expansion, other states welcome it. Scalia asked the politics of the states for and against the federal healthcare funds, to which Clement acknowledged the Republican-led states were against it and Democratic-led states favored it.

A Reuters/Ipsos online poll released on Wednesday found that 65 percent of respondents favored some kind of U.S. healthcare overhaul - 44 percent of them backing the Obama healthcare law and an additional 21 percent wishing it went further.

The rest, 35 percent, said they opposed the law and major changes to healthcare generally.

The crowd of supporters and opponents of the law outside the court was smaller and more subdued on Wednesday compared to the noisy demonstrations on Monday and Tuesday.

There are many more provisions in the law aside from the mandate that people obtain insurance. It prohibits insurers from denying coverage to people with pre-existing medical conditions, dropping coverage when people get sick or imposing higher costs on women and older people.

It extends coverage to the uninsured through federally subsidized health insurance exchanges and a dramatic expansion of Medicaid. It bans lifetime limits on insurance coverage, allows young adults to remain on parents' insurance plans through age 26 and requires preventive services including free mammograms for women.

The White House said on Wednesday it was not working on a contingency plan in the event that the court strikes down all or part of the law, saying it is confident that the statute is constitutional.

Shares of health insurers were mixed in afternoon trading, with the Morgan Stanley Healthcare Payor index of insurers down 1.1 percent, generally in line with declines for the broader market. Shares of hospital chains were lower, with Community Health Systems down 2.5 percent and Tenet Healthcare off 3.9 percent.

The Supreme Court cases are National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400.

(Additional reporting by Jeremy Pelofsky, Ian Simpson, David Ingram and David Morgan in Washington and Lewis Krauskopf in New York; Editing by Howard Goller and Will Dunham)

View the original article here

Obama lawyer asks Supreme Court to save healthcare law

AppId is over the quota
AppId is over the quota
WASHINGTON (Reuters) - The Obama administration's top courtroom lawyer made an impassioned plea on Wednesday for the Supreme Court to save President Barack Obama's healthcare law, capping three days of historic arguments that left it unclear how the nine justices would rule.

Having peppered lawyers for and against the law with questions for more than six hours over the three days, the justices withdrew to their chambers to begin up to three months of deliberation expected to yield a decision by late June.

Obama's healthcare overhaul, signed into law two years ago, is his signature domestic policy achievement. It remains a divisive issue among Americans and is likely to be a key issue ahead of the November 6 election in which he seeks a second term.

The justices took up two issues on the last day of arguments on Wednesday: whether the rest of the law could stand if the centerpiece requirement that most Americans get insurance or face a penalty is struck down; and the validity of expanding the state-federal Medicaid healthcare program for the poor.

After what critics called a poor performance on Tuesday, U.S. Solicitor General Donald Verrilli, arguing for the administration, closed his case with an emotional request that the justices uphold the law. Verrilli cited millions of people with chronic conditions such as heart disease, diabetes and breast cancer who would get health insurance under the law.

Congress made a judgment in passing the law, Verrilli said. "Maybe they were right, maybe they weren't." But he said the court should respect the policy judgment made by democratically elected lawmakers in their decades-long struggle to help millions of uninsured.

The law, which constitutes the $2.6 trillion U.S. healthcare system's biggest overhaul in nearly 50 years, seeks to provide health insurance to more than 30 million previously uninsured Americans and to slow down soaring medical costs.

Unlike healthcare in other rich countries, the U.S. system is a patchwork of private insurance and restrictive government programs that has left tens of millions of people uninsured. The United States pays more on healthcare per person than any other country.

Critics of the law say it meddles too much in the lives of individuals and in the business of the states. They say that if the federal government can force people to buy health insurance, it would be able to force people to, for example, purchase American-made cars or join health clubs.

'FUNNY CONCEPTION OF LIBERTY'

Twenty-six of the 50 U.S. states and a small business trade group challenged the law in court. The lawyer for the states fighting the law, Paul Clement, told the court: "I would respectfully suggest that it's a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not."

The fate of the wide-ranging law, including the mandate that most Americans buy health insurance by 2014, likely is in the hands of two key justices - Chief Justice John Roberts and Anthony Kennedy, who often casts the decisive vote.

The court appeared sharply divided along ideological lines, with the five Republican-appointed conservatives doubting the law would survive and the four Democratic-appointed liberals offering a strong defense for the statute.

If even one of the conservative justices joins the liberal wing on the court, the law would be upheld. If the conservatives stay united, the law would fall.

The states challenging the law say the rest of Obama's healthcare overhaul must go if the court strikes the insurance requirement. Clement, their lawyer, told the justices that the so-called individual mandate to obtain insurance or face a penalty was "essential to the entire scheme."

'TAKE THE HEART OUT'

That sentiment was shared by conservative Justice Antonin Scalia, who said that if the individual mandate was struck down, the entire law must go. "My approach would be if you take the heart out of the statute, the statute is gone," he said.

Chief Justice Roberts said the court would have difficulty figuring out what Congress really wanted to survive from the law because of horse-trading that went on when lawmakers crafted the legislation. The law was passed when Obama's fellow Democrats controlled both houses of Congress after a contentious fight with Republicans dead set against it.

Roberts also noted that the law had two purposes in its title, "Patient Protection and Affordable Care Act," and said it would be tough if not impossible to discern Congress' intent.

"That's just an inquiry that you can't carry out," he said.

Kennedy voiced concern about possible unintended consequences in the form of huge costs to insurance companies if the mandate - which would bring millions of healthy young people into the healthcare system and spread out costs - was invalidated alone.

"We would be exercising the judicial power if one ... provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended," Kennedy said. "By reason of this court, we would have a new regime that Congress did not provide for, did not consider."

The four liberal justices expressed deep reservations about tossing out the sweeping law that has hundreds of other provisions, some of them already in effect.

Justice Sonia Sotomayor, one of the four and an Obama appointee to the court, asked whether the court should allow Congress to decide what to do next. "What's wrong with leaving it in the hands of people who should be fixing this, not us?"

Justice Ruth Bader Ginsburg went further. She said many parts of the law had not been challenged in court. "Why make Congress redo those?"

Another Obama administration lawyer, Edwin Kneedler, told the court that if the mandate was struck down, only two key provisions would also have to fall, those related to coverage for people's pre-existing conditions and limiting costs for those patients with a past medical history.

The justices are expected to meet in private on Friday to discuss the issues heard during the arguments this week and take a preliminary secret vote on how they plan to rule. The justices then will begin drafting their written opinions in the private confines of their chambers.

The justices also reviewed whether Congress violated the Constitution by prodding states to dramatically expand the state-federal Medicaid healthcare program for the poor, providing coverage for an estimated 17 million Americans.

There did not appear to be a majority supporting the challenge to that expansion but like all of the issues in the case, the court appeared deeply divided along ideological lines.

Ginsburg said that while 26 states oppose the expansion, other states welcome it. Scalia asked the politics of the states for and against the federal healthcare funds, to which Clement acknowledged the Republican-led states were against it and Democratic-led states favored it.

A Reuters/Ipsos online poll released on Wednesday found that 65 percent of respondents favored some kind of U.S. healthcare overhaul - 44 percent of them backing the Obama healthcare law and an additional 21 percent wishing it went further.

The rest, 35 percent, said they opposed the law and major changes to healthcare generally.

The crowd of supporters and opponents of the law outside the court was smaller and more subdued on Wednesday compared to the noisy demonstrations on Monday and Tuesday.

There are many more provisions in the law aside from the mandate that people obtain insurance. It prohibits insurers from denying coverage to people with pre-existing medical conditions, dropping coverage when people get sick or imposing higher costs on women and older people.

It extends coverage to the uninsured through federally subsidized health insurance exchanges and a dramatic expansion of Medicaid. It bans lifetime limits on insurance coverage, allows young adults to remain on parents' insurance plans through age 26 and requires preventive services including free mammograms for women.

The White House said on Wednesday it was not working on a contingency plan in the event that the court strikes down all or part of the law, saying it is confident that the statute is constitutional.

Shares of health insurers were mixed in afternoon trading, with the Morgan Stanley Healthcare Payor index of insurers down 1.1 percent, generally in line with declines for the broader market. Shares of hospital chains were lower, with Community Health Systems down 2.5 percent and Tenet Healthcare off 3.9 percent.

The Supreme Court cases are National Federation of Independent Business v. Sebelius, No. 11-393; U.S. Department of Health and Human Services v. Florida, No. 11-398; and Florida v. Department of Health and Human Services, No. 11-400.

(Additional reporting by Jeremy Pelofsky, Ian Simpson, David Ingram and David Morgan in Washington and Lewis Krauskopf in New York; Editing by Howard Goller and Will Dunham)

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John Payton, a lawyer who argued bias cases before Supreme Court, dies at 65 - Washington Post

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John Payton, a lawyer who argued bias cases before Supreme Court, dies at 65Text SizePrintE-mailReprints By T. Rees Shapiro, The Washington Post

John Payton, a lawyer and civil rights advocate who argued cases before the U.S. Supreme Court involving discrimination in the workplace and the rights of universities to include race as a factor in admissions, died March 22 at the Johns Hopkins Hospital in Baltimore. He was 65.

He had complications from multiple myeloma, said his wife, Gay McDougall, a civil and human rights activist.

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Personal Post(Alex Brandon/ASSOCIATED PRESS) - NAACP Legal Defense and Education Fund President and Director-Counsel John Payton died March 22 at Johns Hopkins Hospital in Baltimore. He was 65.

At his death, Mr. Payton was president and director-counsel of the NAACP Legal Defense and Education Fund, a civil rights legal organization.

Mr. Payton’s appointment to the fund in 2008 capped a five-decade career devoted to the protection of minorities. During the early 1990s, he was the District’s corporation counsel, or chief legal officer. The position is now called the D.C. attorney general.

In a statement, President Obama called Mr. Payton “a true champion of equality” who will be remembered for his “courage and fierce opposition to discrimination in all its forms.”

While a student at Pomona College in the 1960s, Mr. Payton helped establish the California school’s first black student association. He also successfully lobbied Pomona’s parent institution, the Claremont Colleges consortium, for the creation of a black studies program.

After graduating from Harvard Law School in 1977, he clerked for a year for Judge Cecil F. Poole of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, before joining the D.C. law firm Wilmer, Cutler and Pickering.

He contributed to the firm’s representation of the NAACP in various legal matters. In a 1982 case before the U.S. Supreme Court, NAACP v. Claiborne Hardware Co., he helped the civil rights organization avoid paying a financial penalty after organizing a 1960s boycott against white merchants in Mississippi.

In 1988, Mr. Payton represented the city of Richmond in a Supreme Court case involving a city program in which 30 percent of municipal construction jobs had to be given to minority-owned businesses. The court ruled that Richmond’s law was unconstitutional because it violated white-owned construction firms’ right to equal protection.

In the late 1990s, Mr. Payton served as the lead counsel for the University of Michigan in two
cases involving its use of race in admissions. One concerned admissions at the undergraduate level and the other at the law school.

The cases were split once they reached the Supreme Court. Mr. Payton led the defense in Gratz v. Bollinger, the 2003 case involving the undergraduate admission policy.

The Supreme Court upheld the law school’s affirmative action process — in which applicants received a more individualized review — and rejected Mr. Payton’s defense of the undergraduate policies, which utilized a point system that was considered unfair by its opponents.

In 2008, Mr. Payton left Wilmer, Cutler and Pickering — now known as WilmerHale — to lead the NAACP Legal Defense and Education Fund.

Mr. Payton successfully represented a group of black firefighters in a Supreme Court case against the city of Chicago. In that case, the city’s fire department had used test scores for hiring purposes. Because of the way the test was graded, no black applicants had qualified. The court found that the city had discriminated against the black recruits by not using a different system for grading the tests.

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John Payton, a lawyer who argued bias cases before Supreme Court, dies at 65 - Washington Post

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John Payton, a lawyer who argued bias cases before Supreme Court, dies at 65Text SizePrintE-mailReprints By T. Rees Shapiro, The Washington Post

John Payton, a lawyer and civil rights advocate who argued cases before the U.S. Supreme Court involving discrimination in the workplace and the rights of universities to include race as a factor in admissions, died March 22 at the Johns Hopkins Hospital in Baltimore. He was 65.

He had complications from multiple myeloma, said his wife, Gay McDougall, a civil and human rights activist.

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Weigh InCorrections?

Personal Post(Alex Brandon/ASSOCIATED PRESS) - NAACP Legal Defense and Education Fund President and Director-Counsel John Payton died March 22 at Johns Hopkins Hospital in Baltimore. He was 65.

At his death, Mr. Payton was president and director-counsel of the NAACP Legal Defense and Education Fund, a civil rights legal organization.

Mr. Payton’s appointment to the fund in 2008 capped a five-decade career devoted to the protection of minorities. During the early 1990s, he was the District’s corporation counsel, or chief legal officer. The position is now called the D.C. attorney general.

In a statement, President Obama called Mr. Payton “a true champion of equality” who will be remembered for his “courage and fierce opposition to discrimination in all its forms.”

While a student at Pomona College in the 1960s, Mr. Payton helped establish the California school’s first black student association. He also successfully lobbied Pomona’s parent institution, the Claremont Colleges consortium, for the creation of a black studies program.

After graduating from Harvard Law School in 1977, he clerked for a year for Judge Cecil F. Poole of the U.S. Court of Appeals for the 9th Circuit, based in San Francisco, before joining the D.C. law firm Wilmer, Cutler and Pickering.

He contributed to the firm’s representation of the NAACP in various legal matters. In a 1982 case before the U.S. Supreme Court, NAACP v. Claiborne Hardware Co., he helped the civil rights organization avoid paying a financial penalty after organizing a 1960s boycott against white merchants in Mississippi.

In 1988, Mr. Payton represented the city of Richmond in a Supreme Court case involving a city program in which 30 percent of municipal construction jobs had to be given to minority-owned businesses. The court ruled that Richmond’s law was unconstitutional because it violated white-owned construction firms’ right to equal protection.

In the late 1990s, Mr. Payton served as the lead counsel for the University of Michigan in two
cases involving its use of race in admissions. One concerned admissions at the undergraduate level and the other at the law school.

The cases were split once they reached the Supreme Court. Mr. Payton led the defense in Gratz v. Bollinger, the 2003 case involving the undergraduate admission policy.

The Supreme Court upheld the law school’s affirmative action process — in which applicants received a more individualized review — and rejected Mr. Payton’s defense of the undergraduate policies, which utilized a point system that was considered unfair by its opponents.

In 2008, Mr. Payton left Wilmer, Cutler and Pickering — now known as WilmerHale — to lead the NAACP Legal Defense and Education Fund.

Mr. Payton successfully represented a group of black firefighters in a Supreme Court case against the city of Chicago. In that case, the city’s fire department had used test scores for hiring purposes. Because of the way the test was graded, no black applicants had qualified. The court found that the city had discriminated against the black recruits by not using a different system for grading the tests.

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Supreme Court extends effective lawyer right to plea deals

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WASHINGTON (Reuters) - The U.S. Supreme Court on Wednesday extended the constitutional right to effective legal assistance in cases of plea bargain deals that are rejected or lapsed due to bad lawyer advice.

Splitting by a 5-4 vote, with moderate conservative Justice Anthony Kennedy joining the court's four liberals in two cases, the majority held that the right to effective counsel applied to informal plea bargain negotiations that take place between criminal defendants and prosecutors.

In the second ruling, the majority held a defendant must show "a reasonable probability" the plea offer would have been accepted by the judge when a lawyer's bad advice caused the defendant to reject the plea bargain and then stand trial.

The pair of rulings in cases from Missouri and Michigan could allow convicted criminals to seek to reopen their cases after they passed up favorable plea bargains because of ineffective assistance of their lawyers.

In both cases, the criminals said they had been denied their constitutional right to effective assistance of counsel because of mistakes by their attorneys during plea negotiations. The majority agreed.

The rulings could have broad impact as about 95 percent of all criminal cases nationwide are resolved through a plea agreement, not a trial.

Kennedy in one of the opinions said that a defense counsel as a general rule has a duty to communicate to the client formal prosecution offers of a plea deal on terms and conditions that may be favorable to the accused.

To show harm when a plea offer has lapsed or been rejected because of a lawyer's bad performance, Kennedy said defendants must show they probably would have accepted the more favorable plea offer if they had received effective legal advice and that the plea deal would have been accepted in court.

When a defendant shows ineffective assistance has caused the rejection of a plea leading to more severe sentence at trial, the remedy must "neutralize the taint" of a constitutional violation," he said in the other opinion.

Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Antonin Scalia dissented.

COULD SOW CONFUSION

Scalia, who took the rare step of reading parts of his dissent from the bench, said there was no doubt that the defendants in the cases were convicted and sentenced under fair, constitutionally valid procedures.

"Until today, no one has though that there is a constitutional right to a plea bargain," he said. "Today's opinion opens a whole new field of constitutionalized criminal procedure: the field of plea-bargaining law. The court announces this new field in opinions that almost seem designed to sow confusion."

"In today's cases, the court's zeal to bring perfection to everything requires the reversal of perfectly valid, eminently just, convictions. It is not wise; it is not right," Scalia concluded.

In the Michigan case, Anthony Cooper passed up a plea deal that would have sent him to prison for four to seven years for shooting a woman four times.

His lawyer told him he would not be convicted of assault with intent to murder because he shot the woman below the waist and missed a shot to her head.

Cooper went to trial, was convicted of assault with intent to murder and on other charges, and received a sentence of up to 30 years in prison.

In the other case from Missouri, Galin Frye was charged with driving without a license in 2007. A prosecutor offered two alternative plea agreements.

In one, the prosecutor said Frye could plead guilty in exchange for a 90-day sentence. But Frye's lawyer at the time failed to tell him about the offers.

After the offers expired and after Frye was arrested again for driving with a revoked license, he pleaded guilty and received a sentence of three years in prison.

The Supreme Court's majority opinions sided with Frye and Cooper and sent the cases back to lower courts for further proceedings.

The Obama administration had supported the argument by prosecutors in the two cases that the constitutional right to counsel only ensured a fair trial, and that defendants do not have a right to a plea bargain, including one that results in a lighter sentence.

The Supreme Court cases are Lafler v. Cooper, No. 10-209, and Missouri v. Frye, No. 10-444.

(Reporting by James Vicini; Editing by Anthony Boadle)

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Stolen Valor Act at Supreme Court: Is lying about being a hero a right?

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IP is over the quota
When Xavier Alvarez stood up and introduced himself at a local water district meeting in July 2007, he had no idea he was about to commit a federal crime.

“I’m a retired Marine of 25 years,” he told the other board members in Pomona, Calif. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

In most social situations, such statements might elicit interested nods, admiring smiles, and perhaps heart-felt thanks for his brave service to the nation.

But it turns out Mr. Alvarez never served a day in the US military, had never been wounded, and – most important – was never awarded the Medal of Honor.

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After his false claim was exposed, the Federal Bureau of Investigation showed up. Alvarez was soon indicted for allegedly violating the Stolen Valor Act of 2005, a law that makes it a federal crime to falsely claim to have been awarded a military medal.

His lawyer attacked the indictment as a violation of the First Amendment, arguing that Americans have a free-speech right to make false and outrageous claims about themselves without facing criminal prosecution from a government truth squad.

A federal judge upheld the indictment, but a US appeals court panel reversed.

On Wednesday, Alvarez’s case arrives at the US Supreme Court, where the justices are being asked to decide whether the Stolen Valor Act is an unconstitutional regulation of free speech or an acceptable effort by the government to punish an alleged liar.

The high court has never directly addressed the issue of lying about military awards, and it is not clear how the justices may decide it.

The Supreme Court has recognized a number of categories of speech that are unworthy of full First Amendment protection. They include obscenity, libel and defamation, incitement to imminent harm, and fraud. In each of those areas the underlying speech causes a concrete injury.

Critics of the Stolen Valor Act say it requires no underlying injury. Any false statement claiming receipt of a medal may be punished. These critics suggest the best remedy for such false statements is not criminal punishment but more speech, particularly truthful speech to expose the lie.

The Obama administration is urging the court to uphold the restriction as a valid regulation of a discrete kind of false speech that lacks significant constitutional value.

Alvarez counters that the court has never before declared that such false statements are unworthy of constitutional protection. His lawyer says the government’s position marks a radical departure from free speech principles that could lead to sanctions against those who exaggerate, use hyperbole, or engage in satire.

“For good or bad, right or wrong, everyone lies. Xavier Alvarez is no exception. He told a bunch of whoppers,” wrote Alvarez’s lawyer, Deputy Federal Public Defender Jonathan Libby, in his brief to the court.

“Exaggerated anecdotes, barroom braggadocio, and cocktail party puffery have always been thought to be beyond the realm of government reach and to pass without fear of criminal punishment,” Mr. Libby said.

The US Solicitor General’s Office disagrees, arguing that the Stolen Valor Act is aimed at achieving an important government objective and that it is narrowly focused to achieve that objective.

“The government employs military honors to convey a message to the public that the recipient has been endorsed by the government as part of a select group,” Solicitor General Donald Verrilli wrote in his brief to the court. “The aggregate effect of false claims undermines that purpose … by diluting the medals’ message of prestige and honor.”

The law seeks to punish only those who knowingly make a false claim of having been awarded a medal, Mr. Verrilli said. A person is unlikely to make such a claim out of confusion or by mistake, he said.

“Content-based restrictions on false factual statements are consistent with the First Amendment if they are supported by a strong government interest and provide adequate ‘breathing space’ for fully protected speech,” Verrilli’s brief said.

Alvarez’s lawyer, Mr. Libby, openly admits his client is a liar. But he says Alvarez was pilloried in his community as an “idiot” and a “jerk” after his false statements were exposed.

Libby says Americans lie all the time in social situations and that if his client loses his case, the government may soon be investigating the veracity of a broader range of facetious statements.

“Xavier Alvarez lied. He lied when he claimed to have played professional hockey for the Detroit Red Wings. He lied when he claimed to be married to a Mexican starlet whose appearance in public caused paparazzi to swoon. He lied when he claimed to be an engineer. He lied when he claimed to have rescued the American ambassador during the Iranian hostage crisis, and when he said that he was shot going back to grab the American flag,” Libby said in his brief.

What’s the harm, Libby asked in his brief. There is no evidence that anyone relied on Alvarez’s false claims about hockey or military heroics.

“The government’s interest in protecting the reputation of military medals is legitimate, but not compelling,” Libby said. “False claimants cannot tarnish the reputation of medal winners.”

“The government seeks to create a new test – completely unmoored from this court’s precedents,” Libby said.

“Falsehoods are valuable for innumerable reasons: in refining truth, in expressing personal autonomy, and in greasing the wheels of social interaction,” Libby said. “More than that, there is a realm of harmless prattle and puffery generally considered beyond government control.”

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In Stolen Valor Act Case, Supreme Court Debates When Lies Can Be Crimes

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IP is over the quota

WASHINGTON -- The Supreme Court on Wednesday morning appeared divided over whether to strike down a federal law that makes it a crime for a person to lie about receiving military honors.

In 2007, Xavier Alvarez, an elected member of a Los Angeles-area water board, introduced himself at a public meeting as a retired Marine. "Back in 1987, I was awarded the Congressional Medal of Honor," he added for the record. Both statements were lies -- and the latter he would find out, when the FBI came looking for him, had recently been made a federal crime.

The Stolen Valor Act, passed by Congress in 2006, states that "whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both." Alvarez would become the first person convicted under the act.

He appealed his conviction on the ground that the Stolen Valor Act violates the First Amendment protections for free speech. The U.S. Court of Appeals for the 9th Circuit in 2010 agreed, reversing the lower court and striking down the act. Since the Supreme Court consented to hear United States v. Alvarez this past fall, another appeals court has upheld the act, creating a split among the circuits.

Solicitor General Donald Verrilli, arguing on behalf of the Obama administration, told the justices on Wednesday that the 9th Circuit's fears of a society where any knowing falsehood could be criminalized were unfounded. The Stolen Valor Act prohibits only a "carefully limited and narrowly drawn category of calculated factual falsehoods" regarding military honors, Verrilli said at the start of his presentation.

Justice Sonia Sotomayor then wondered about a hypothetical Vietnam War protester who holds up a sign that reads, "I won a Purple Heart -- for killing babies." If the protester knew his statement to be false, Sotomayor asked, "Is that person, if he's not a veteran having received the medal, is he liable under this act?"

If a reasonable observer would see the sign as "political theater," Verrilli answered, then "it's not within the scope of the statute, and it wouldn't be subject to liability."

But, Verrilli continued, "this Court has said in numerous contexts, numerous contexts, that the calculated factual falsehood has no First Amendment value for its own sake."

"It has said it often, but always in context where it is well understood that speech can injure," responded Justice Anthony Kennedy, pointing to defamation and fraud actions. "I think it's a sweeping proposition to say that there's no value to falsity," he went on. "Falsity is a way in which we contrast what is false and what is true."

But Alvarez's lies and others implicated under the Stolen Valor Act do cause injury, Justice Antonin Scalia said. "[T]here's harm to those courageous men and women who receive the decorations," said Scalia. "Their service is demeaned when everybody says, 'I served in the armed forces.'"

Sotomayor disagreed. "[Y]ou 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," she said. "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?" she asked. "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."

Throughout Verrilli's presentation, Scalia seemed to be the lone unambiguous supporter of the Stolen Valor Act, going so far as to declare flatly, "I believe that there is no First Amendment value in falsehood." The justice's clear intent to uphold the act comes in some contrast to his votes in recent years to strike down, on First Amendment grounds, a federal ban on dogfighting videos, a California ban on the sale of violent video games and a jury verdict against funeral picketers. Scalia's son Matthew served with the U.S. Army in Iraq.

But whatever lead Alvarez had at the end of the solicitor general's argument disappeared when his lawyer, Jonathan Libby, took to the lectern. Chief Justice John Roberts, who had earlier pushed Verrilli on whether Congress could criminalize lying about obtaining a high school diploma, jumped all over Libby, a deputy federal public defender in California.

"What is the First Amendment value in a lie, pure lie?" asked Roberts.

The question, which came less than a minute into Libby's argument, seemed to knock him off balance. "Just a pure lie? There can be a number of values," he answered. "There is the value of personal autonomy."

"The value of what?" said Roberts.

"Personal autonomy," Libby repeated.

"What does that mean?" pressed the chief.

"Well, that we get to, we get to exaggerate and create ... ," Libby tried to answer.

"No, not exaggerate, lie," Roberts corrected him.

Libby offered up Samuel Clemens' use of the pen name Mark Twain as one such "persona" that is really just a lie about one's personal story and identity.

"Well, but that was for literary purposes," retorted Roberts.

Justice Samuel Alito was similarly incredulous, asking, "Do you really think 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?"

"Yes, Your Honor, so long as it doesn't cause imminent harm to another person or imminent harm to a government function," Libby said.

Some minutes later, Kennedy, who had seemed very much on Libby's side in the first half of the argument, appeared to fall off the bandwagon. "[I]t's a matter of common sense that it seems to me that [lying about receiving a military honor] demeans the medal," he said.

But it was Justice Elena Kagan who may have delivered the knockout blow to Libby, even if most of her questions leaned toward his case. "What truthful speech will this statute chill?" she asked.

"Your Honor, it's not that it may necessarily chill any truthful speech," Libby said. "We certainly concede that one typically knows whether or not one has won a medal or not."

"So, boy, I mean, that's a big concession, Mr. Libby," Kagan replied.

On rebuttal, the solicitor general made the most of that concession, but not before Kagan gave him a hard time, too. She asked if the government can criminalize deliberate falsehoods about extramarital affairs if the law is drawn narrowly and specifically enough. "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," she hypothesized.

"That's a hard case," Verrilli admitted, before facing an additional flurry of questions from Sotomayor and Justice Stephen Breyer suggesting their belief that upholding the Stolen Valor Act would lead to laws that chilled speech clearly protected by the First Amendment.

To dispel that concern, Verrilli said, they need look no further than Libby's admission just moments earlier. The defendant's own lawyer, the solicitor general said, "conceded that this statute chills nothing."

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