In United States v. Alvarez,1×1. 132 S. Ct. 2537 (2012). the Supreme Court struck down the Stolen Valor Act of 20052×2. 18 U.S.C. § 704 (2006), invalidated by United States v. Alvarez, 132 S. Ct. 2537 (2012). on First Amendment grounds.3×3. Alvarez, 132 S. Ct. at 2551 (plurality opinion); accord id. (Breyer, J., concurring in the judgment). The statute had criminalized making false claims that one had been “awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”4×4. Id. (plurality opinion) (quoting 18 U.S.C. § 704(b)). Writing for the plurality, Justice Kennedy stated that “[w]here false claims are made to effect a fraud or secure moneys or other valuable considerations . . . it is well established that the Government may restrict speech without affronting the First Amendment.”5×5. Id. at 2547. Given that the Stolen Valor Act prohibited false speech “absent any evidence that the speech was used to gain a material advantage,”6×6. Id. at 2548. Justice Kennedy determined that the statute burdened a significant amount of protected speech.7×7. See id. at 2547–48. Thus, he applied the “most exacting scrutiny” to the statute and found that it failed to pass muster.8×8. Id. at 2548 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)) (internal quotation marks omitted). In his concurrence, Justice Breyer applied intermediate scrutiny to the statute and refrained from engaging in a categorical analysis, but he reached the same result as Justice Kennedy. Id. at 2551 (Breyer, J., concurring in the judgment).
Recently, in State v. Melchert-Dinkel,9×9. 844 N.W.2d 13 (Minn. 2014). the Minnesota Supreme Court upheld a prohibition on speech that assists suicide, but struck down a prohibition on speech that advises or encourages suicide.10×10. Id. at 23–24. Reviewing a conviction based on the use of “deceit, fraud, and lies” to advise and encourage suicide,11×11. Id. at 21 (internal quotation marks omitted). the court appears to have interpreted Alvarez’s “material advantage” language as meaning that fraud is unprotected only when it is made to gain a material advantage. Future courts might be persuaded to adopt such a reading of Alvarez’s material-advantage language because it is in keeping with the general rule that First Amendment exceptions are meant to be narrow. Courts, however, should not succumb to that temptation — that reading of Alvarez is implausible in light of the case’s language and common law backdrop. Yet even if courts do adopt this reading, litigants might still prevent its narrowing effect by characterizing harm to one person as material advantage to another.
William Francis Melchert-Dinkel, a 46-year-old man12×12. State v. Melchert-Dinkel, 816 N.W.2d 703, 705 (Minn. Ct. App. 2012). who lived in Minnesota,13×13. Melchert-Dinkel, 844 N.W.2d at 16. posed as a “depressed and suicidal young female nurse” on suicide websites.14×14. Id. Responding to posts on these websites, Melchert-Dinkel conversed with suicidal individuals,15×15. Melchert-Dinkel, 816 N.W.2d at 711–12. “feign[ing] caring and understanding to win [their] trust.”16×16. Melchert-Dinkel, 844 N.W.2d at 16. He “encourag[ed] [them] to hang themselves, falsely claim[ed] that he would also commit suicide, and attempt[ed] to persuade them to let him watch the hangings via webcam.”17×17. Id. In total, Melchert-Dinkel “entered into approximately five suicide pacts.”18×18. State v. Melchert-Dinkel, No. 66-CR-10-1193, 2011 WL 893506, at *18 (Minn. Dist. Ct. Mar. 15, 2011).
Two of the individuals with whom Melchert-Dinkel corresponded committed suicide.19×19. Id. After investigating the second death, law enforcement officials were able to connect Melchert-Dinkel’s Internet aliases to his email address.20×20. Melchert-Dinkel, 816 N.W.2d at 706. Melchert-Dinkel admitted that he had posed as the suicidal nurse and authored the Internet messages.21×21. Melchert-Dinkel, 844 N.W.2d at 17. He was then prosecuted under a statute that “makes it illegal to ‘intentionally advise, encourage, or assist another in taking the other’s own life.’”22×22. Id. at 16 (altera-tions in original) (quoting Minn. Stat. § 609.215 subdiv. 1 (2012)). The Minnesota state district court found that “Melchert-Dinkel intentionally advised and encouraged” his victims and convicted him,23×23. Melchert-Dinkel, 2011 WL 893506, at *19. rejecting both his facial and as-applied First Amendment challenges to the statute.24×24. See id. at *20. Melchert-Dinkel appealed.25×25. Melchert-Dinkel, 816 N.W.2d at 712.
The Minnesota Court of Appeals affirmed.26×26. Id. at 720. Writing for the court, Judge Ross27×27. Judge Ross was joined by then-Judge Wright and by Judge Muehlberg of the Minnesota district court, sitting by designation. held that the statute was constitutional both on its face and as applied. Beginning with the facial challenge,28×28. Melchert-Dinkel, 816 N.W.2d at 713. Judge Ross stated that the covered speech was “an integral part of another’s suicide.”29×29. Id. at 714. Judge Ross then determined that even though suicide had been decriminalized in Minnesota,30×30. Id. The suicides took place in the United Kingdom and Canada, Melchert-Dinkel, 844 N.W.2d at 16–17, but suicide had also been decriminalized in those jurisdictions, id. at 19. the covered speech was categorically unprotected because the state still maintained a strong policy against suicide.31×31. See Melchert-Dinkel, 816 N.W.2d at 714. Judge Ross also held that the prohibition was not overbroad, for the statute required a sufficiently “direct connection between the prohibited speech and the harmful conduct to be avoided.”32×32. Id. at 716. Then, addressing the as-applied challenge, Judge Ross noted that “[t]he First Amendment does not shield fraud” and found that Melchert-Dinkel’s speech easily fell within this exception from First Amendment protection.33×33. Id. at 718 (quoting Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003)) (internal quotation mark omitted).
The Minnesota Supreme Court reversed and remanded.34×34. Melchert-Dinkel, 844 N.W.2d at 25. Writing for the majority, Justice Anderson35×35. Justice Anderson was joined by Chief Justice Gildea and Justices Dietzen and Stras. Justices Wright and Lillehaug took no part in the consideration or decision of the case. held that the statute’s prohibition on assisting suicide was constitutional but that its prohibitions on advising and encouraging were not. Justice Anderson determined that the statute was content-based and thus inherently suspect, but also recognized that it would be exempted from First Amendment scrutiny if the covered speech fell within a First Amendment exception.36×36. Melchert-Dinkel, 844 N.W.2d at 19. He observed that “speech integral to criminal con-duct”37×37. Id. and speech “directed to inciting or producing imminent lawless action”38×38. Id. at 20 (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (per curiam)) (internal quotation marks omitted). are two examples of such exceptions. However, for both, he determined that the decriminalization of suicide proved dispositive39×39. See id. at 19–21. : not only was the speech not integral to criminal conduct or lawless action because suicide is not a crime, but also courts are not permitted to morph the criminal-conduct exception into an exception that captures all “speech integral to ‘harmful, proscribable conduct.’”40×40. Id. at 20 (quoting State v. Melchert-Dinkel, 816 N.W.2d 703, 713 (Minn. Ct. App. 2012)).
Justice Anderson next considered whether “the speech used by Melchert-Dinkel [fell] under the ‘fraud’ exception to the First Amendment.”41×41. Id. at 21. Relying on Alvarez’s plurality opinion, Justice Anderson noted that “speech is not unprotected simply because the speaker knows that he or she is lying.”42×42. Id. Rather, “a plurality of the Court recognized in Alvarez [that] the government can restrict speech when false claims are made to ‘gain a material advantage,’ including money or ‘other valuable considerations,’ such as offers of employment.”43×43. Id. (first quoting United States v. Alvarez, 132 S. Ct. 2537, 2548 (2012) (plurality opinion); then quoting id. at 2547). Justice Anderson determined that “there are a multitude of scenarios in which the speech prohibited by [the challenged statute] would not be fraudulent, and thus [the First Amendment’s fraud] exception does not protect the statute from a facial challenge.”44×44. Id. (citation omitted). He also noted that the court could not “see how, even under the unusual facts of this case, Melchert-Dinkel gained a material advantage or valuable consideration from his false speech.”45×45. Id. He concluded: “Accordingly, we reject the State’s argument that the ‘fraud’ exception to the First Amendment applies here.”46×46. Id.
Finally, because the speech prohibited by the statute was not categorically exempt from First Amendment protection, Justice Anderson subjected the statute to strict scrutiny: the restriction would be upheld only if it “(1) [were] justified by a compelling government interest and (2) [were] narrowly drawn to serve that interest.”47×47. Id. (citing Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011)). Justice Anderson determined that Minnesota undoubtedly had a compelling interest in “preserving human life.”48×48. Id. at 22. Moreover, he found that the definition of “assist” required that any speech deemed to reach the level of assistance be directly and causally linked to the suicide.49×49. Id. at 23. Thus, he concluded that a prohibition on assisting suicide was sufficiently narrowly tailored.50×50. Id. However, the prohibitions on advising and encouraging suicide could include speech “more tangential to the act of suicide,”51×51. Id. at 23–24. potentially including “general discussions of suicide with specific individuals or groups.”52×52. Id. at 24. As a result, the court struck down the advising and encouraging prohibitions.53×53. Id. Justice Page dissented. He agreed with the majority except that he believed the state had failed to prove beyond a reasonable doubt that Melchert-Dinkel’s speech amounted to assisting suicide. Id. at 25 (Page, J., dissenting). Thus, he determined that the court should have dismissed the case outright rather than remanded it. Id.
In assessing whether the statute at issue was a valid proscription of unprotected fraudulent speech, the Minnesota Supreme Court seemed to read the Alvarez plurality opinion as exempting fraud from First Amendment protection only when it is “made to ‘gain a material advantage.’”54×54. Id. at 21 (majority opinion) (quoting United States v. Alvarez, 132 S. Ct. 2537, 2548 (2012) (plurality opinion)). Courts may be tempted to adopt this reading of Alvarez because it is in keeping with the general rule that First Amendment exceptions are meant to be narrow, but they should not do so because such a reading is implausible in light of the case’s language and common law backdrop. Yet even if courts adopt such a reading, litigants can still seek to fit all types of fraud within the fraud exception by characterizing harm to one person as material advantage to another.
In the Alvarez plurality opinion, Justice Kennedy endeavored to discern the scope of the false claims First Amendment exception. To start his inquiry, Justice Kennedy determined that the Stolen Valor Act of 2005 imposed a “content-based speech regulation”55×55. Alvarez, 132 S. Ct. at 2543 (plurality opinion). and noted that “[a]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”56×56. Id. (quoting Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (internal quotation marks omitted)) (internal quotation marks omitted). However, he observed that “content-based restrictions on speech have been permitted . . . when confined to the few ‘historic and traditional categories [of expression] long familiar to the bar.’”57×57. Id. at 2544 (second alteration in original) (quoting United States v. Stevens, 130 S. Ct. 1577, 1584 (2010)) (internal quotation marks omitted). Although “[t]he Court ha[d] never endorsed the categorical rule . . . that false statements receive no First Amendment protection,”58×58. Id. at 2545. he observed that “[w]here false claims are made to effect a fraud or secure moneys or other valuable considerations . . . it is well established that the Government may restrict speech without affronting the First Amend-ment.”59×59. Id. at 2547. Relatedly, Justice Kennedy acknowledged that courts have upheld “prohibition[s] of . . . false statement[s] made to . . . Government official[s], . . . laws punishing perjury[,] and . . . prohibitions on the false representation that one is speaking as a Government official or on behalf of the Government.” Id. at 2545–46 (citations omitted). Because the Stolen Valor Act of 2005 “by its plain terms applie[d] to a false statement made at any time, in any place, to any person,”60×60. Id. at 2547. and “d[id] so entirely without regard to whether the lie was made for the purpose of material gain,”61×61. Id. Justice Kennedy determined that the Stolen Valor Act of 2005 could not be upheld as a restriction on categorically unprotected speech.62×62. See id.
In Melchert-Dinkel, Justice Anderson seems to have interpreted the Alvarez plurality opinion as attaching a material-advantage requirement to the fraud exception. In flatly rejecting the state’s argument “that Melchert-Dinkel’s speech [was] unprotected because it amounted to fraud,”63×63. Melchert-Dinkel, 844 N.W.2d at 21 (emphasis added). Justice Anderson recited the Alvarez plurality’s observation that “the government can restrict speech when false claims are made to ‘gain a material advantage.’”64×64. Id. (quoting Alvarez, 132 S. Ct. at 2548 (plurality opinion)) (emphasis added). He then immediately determined that the statute at issue was not protected from the facial challenge because “there are a multitude of scenarios in which the speech prohibited by [the statute] would not be fraudulent.”65×65. Id. (emphasis added). Thus, Justice Anderson appears to have equated Alvarez’s reference to false claims made to secure a material advantage with Alvarez’s reference to fraudulent speech, and in turn to have imputed the material-advantage requirement to the fraud exception. In fact, this imputation seems all the more likely because it could explain why the court noted that it “fail[ed] to see how . . . Melchert-Dinkel gained a material advantage or valuable consideration from his false speech,” before it “reject[ed] the State’s argument that the ‘fraud’ exception to the First Amendment applie[d].”66×66. Id. (emphases added).
The narrowness of this reading of Alvarez’s material-advantage language could be attractive to courts because the exceptions to First Amendment protection are supposed to be narrow.67×67. See State v. Huffman, 612 P.2d 630, 634 (Kan. 1980) (“The First Amendment guarantee of freedom of speech forbids the States to punish use of language and words except in certain ‘narrowly limited classes of speech.’” (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942))); see also NAACP v. Button, 371 U.S. 415, 433 (1963) (“Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”). However, such a reading is implausible for two reasons. First, the actual Alvarez material-advantage language states that false claims lack protection when they are “made to effect a fraud or secure moneys or other valuable considerations.”68×68. Alvarez, 132 S. Ct. at 2547 (plurality opinion) (emphasis added). The use of “or” indicates that the “secur[ing] moneys or other valuable consideration”69×69. Id. inquiry is separate from any relevant fraud inquiry. In other words, the direction to courts is to look for material advantage only when false claims do not amount to fraud. If Justice Kennedy had intended to indicate that fraud is exempt from protection only when the perpetrator of the fraud sought a material advantage, “and” would have been the natural word to use.
Second, such a reading is inconsistent with how fraud is conventionally defined in both tort and contract law.70×70. “Fraud may be treated as either ex contractu (contract) or ex delicto (tort), both from jurisdiction to jurisdiction and from case to case within the same jurisdiction.” Peter A. Alces, The Law of Fraudulent Transactions § 2:27 (2006). Although other forms of fraud exist at common law, the Alvarez plurality did not tie the fraud speech exception to any particular common law definition of fraud. The tort of fraud often requires a demonstration that harm was suffered, but not that advantage was sought.71×71. See Restatement (Second) of Torts § 525 (1977) (omitting material advantage from the requirements of fraud and instead noting that “[o]ne who fraudulently makes a misrepresentation of fact . . . is subject to liability . . . for pecuniary loss”); see also, e.g., Coffey v. Wininger, 296 N.E.2d 154, 160 (Ind. Ct. App. 1973) (omitting material advantage from jury instruction explaining fraud and instead requiring jury to find “[t]hat . . . plaintiffs sustained damage”); Dutton & Vaughan, Inc. v. Spurney, 600 So. 2d 693, 698 (La. Ct. App. 1992) (listing an “essential element of fraud” as “the intent to defraud or gain an unfair advantage” (emphasis added)). Constructive fraud, however, often does have a material-advantage requirement. See, e.g., Rice v. Strunk, 670 N.E.2d 1280, 1284 (Ind. 1996) (including among the elements of constructive fraud both “injury to the complaining party” and “the gaining of an advantage by the party to be charged”). In fact, this is the case in Minnesota.72×72. See Davis v. Re-Trac Mfg. Corp., 149 N.W.2d 37, 38–39 (Minn. 1967) (omitting material advantage from the requirements of fraud and instead noting that a person who brings a fraud claim “must suffer damage,” id. at 39). And contract law does not differ substantially: Williston on Contracts, for example, includes among the list of elements required for a case of actual fraud “damage to the plaintiff” but not advantage to the defendant.73×73. 26 Samuel Williston, A Treatise on the Law of Contracts § 69:3 (Richard A. Lord ed., 4th ed. 2003). In either case, then, “[t]he fact that the defendant has not realized a benefit is not dispositive.”74×74. Alces, supra note 70, § 2:20. It is possible that the Alvarez plurality intended to define the fraud exception in a way that differed from the way fraud is often defined in states’ common law. However, Justice Kennedy seemed to indicate that the plurality intended not to disturb settled doctrine. After all, when he examined language cited by the government that seemed to indicate that all false speech is unprotected speech, he wrote that the government’s quotations “derive from cases discussing defamation, fraud, or some other legally cognizable harm.”75×75. United States v. Alvarez, 132 S. Ct. 2537, 2545 (2012) (plurality opinion). He concluded further, after reviewing examples of regulations on false speech such as laws punishing perjury: “This opinion does not imply that any of these targeted prohibitions are somehow vulnerable.”76×76. Id. at 2546.
Nonetheless, if courts read the Alvarez plurality’s material-advantage language as applying to fraud, savvy litigants might still be able to limit the effects on First Amendment doctrine by reframing harm to plaintiffs as material advantage for defendants. For instance, here Melchert-Dinkel entered into suicide pacts.77×77. State v. Melchert-Dinkel, No. 66-CR-10-1193, 2011 WL 893506, at *18 (Minn. Dist. Ct. Mar. 15, 2011). A suicide pact is essentially a contract, albeit one probably unenforceable on public policy grounds.78×78. See Restatement (Second) of Contracts § 178(1) (1981) (“A promise . . . is unenforceable on grounds of public policy if . . . the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.”); see also Melchert-Dinkel, 844 N.W.2d at 20 (“[S]uicide . . . remains harmful conduct that the state opposes as a matter of public policy.” (quoting State v. Melchert-Dinkel, 816 N.W.2d 703, 714 (Minn. Ct. App. 2012)) (internal quotation marks omitted)). Since a suicide pact is an exchange of promises to harm oneself, the promised harm could be characterized as the suicide pact’s “valuable consideration” in the contract sense of the term.79×79. Compare Hamer v. Sidway, 27 N.E. 256, 257 (N.Y. 1891) (“A valuable consideration, in the sense of the law, may consist . . . in some . . . forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other.” (emphasis added) (quoting William R. Anson, Principles of the Law of Contract 61 (O.W. Aldrich ed., 1880 ed.)) (internal quotation marks omitted)), with Alvarez, 132 S. Ct. at 2547 (“Where false claims are made to . . . secure . . . valuable considerations, . . . it is well established that the Government may restrict speech without affronting the First Amendment.” (emphasis added)). However, this approach might not work in every case. After all, in Melchert-Dinkel, either the Minnesota Supreme Court did not consider the possibility of characterizing harm to Melchert-Dinkel’s victims as advantage to Melchert-Dinkel, or the court was not persuaded by it, since Justice Anderson indicated that Melchert-Dinkel had not received a material advantage.80×80. Melchert-Dinkel, 844 N.W.2d at 21.
Even when a litigant fails to convince a court that her loss is the other side’s gain, she still has a chance of prevailing under the applicable scrutiny analysis, whether exacting or intermediate.81×81. Compare Alvarez, 132 S. Ct. at 2548–51 (plurality opinion) (subjecting the Stolen Valor Act of 2005 to “exacting scrutiny,” id. at 2548), with id. at 2551–52 (Breyer, J., concurring in the judgment) (determining that the Act should be subject to intermediate scrutiny). For instance, in Melchert-Dinkel, the assisting suicide provision survived strict scrutiny.82×82. Melchert-Dinkel, 844 N.W.2d at 23. However, if and when courts determine that strict scrutiny is the appropriate standard of review, chances of success are low, as strict scrutiny is often characterized as “fatal in fact.”83×83. Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 Vand. L. Rev. 793, 794 (2006) (quoting Gerald Gunther, The Supreme Court, 1971 Term — Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972)) (internal quotation mark omitted). But see id. at 795 (“Reporting the results of a census of every strict scrutiny decision published by the district, circuit, and Supreme courts between 1990 and 2003, this study shows that strict scrutiny is far from [an] inevitably deadly test . . . .”). Thus, litigants who wish to prevail in cases of fraud where no material advantage seems to exist probably have the best chance of success if they argue, in the first instance, that since Justice Kennedy wrote that false claims lack protection when they are “made to effect a fraud or secure moneys or other valuable considerations,”84×84. Alvarez, 132 S. Ct. at 2547 (plurality opinion) (emphasis added). fraud is always categorically exempt from First Amendment protection.