I spent days and days and days of my life on this paper. You BEST BELIEVE I’m turning it into content. Happy reading.

Keeping It Zero: The Constitutional Right to Speak Falsehood

By Ben Ackman

In 2007, Xavier Alvarez introduced himself as a member of the Three Valley Water District Board in Claremont, California, at a public meeting.[1] “I’m a retired Marine of 25 years,” he said. “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.”[2] But Alvarez had never received the Medal of Honor, been wounded in combat or even served in the military.[3] For making that statement, a complete fabrication, he was convicted for violating the Stolen Valor Act of 2005, which made it a crime to falsely assume military decoration, with added penalties for claiming the Medal of Honor.[4] The United States Court of Appeals for the Ninth Circuit overturned his conviction, finding that Alvarez had a First Amendment right to lie about having received military honors.[5] The government appealed to the U.S. Supreme Court.

In United States v. Alvarez, the Court struck down the Stolen Valor Act, affirming the Ninth Circuit with a 6-3 ruling.[6] Justice Anthony Kennedy’s plurality opinion sympathized with Congress’s reverence for recipients of its Medal of Honor, but acknowledged the Stolen Valor Act was a content-based regulation of speech, which calls for exacting constitutional scrutiny.[7] He determined that the act failed to survive the heightened scrutiny and to prove that falsifying military honors caused enough harm to justify a prior restraint on speech.[8] Only four justices joined his plurality opinion, but in a concurrence, Justice Stephen Breyer said the statute was justified in seeking to uphold the honor of decorated soldiers and its overbreadth was what made it unconstitutional.[9]

Alvarez exemplifies the scrutiny with which the Court examines restrictions on free expression. Several varieties of speech have been designated unlawful, including defamation, fighting words and true threats, but false statements have remained outside that category. In his concurring opinion, Breyer noted the Court has often said “criminal prosecution for making a false statement can inhibit the speaker from making true statements, thereby ‘chilling’ a kind of speech that lies at the First Amendment’s heart.”[10] To alleviate worries of inadvertently making illegal speech, the Court allows for “breathing space”[11]around false statements, having acknowledged how free debate inevitably invites statements that are not explicitly true.[12] But this forgiveness of falsehood is not all-encompassing – it has allowed several restrictions on false speech to stand.[13]

The purpose of this paper is to explore arguments for and against protection of false speech under the First Amendment. The first section of this paper, the Literature Review, will contrast scholarly analyses of challenges presented by false speech regulations, their implications for free debate and the essential concept of falsity. The paper’s second section will provide a historical overview of false speech laws and related judicial precedent. The paper’s third section will compare prohibitions on falsehood across political and commercial speech. The paper’s fourth section will examine American judicial tradition towards false speech since World War I, with a focus on political speech.

Literature Review

In an Autumn 2018 law review article, law professor and dean at the University of California Berkeley School of Law Erwin Chemerinsky highlighted a number of developments that distinguished contemporary discussion of false speech from debates on the topic in years past.[14] Most significantly, he argues that the Supreme Court has no consistent doctrine on whether false speech is protected by the First Amendment.[15]

In the second section of his article, Chemerinsky says Court rulings on false speech must always weigh the costs and benefits of regulating falsehood, which prevents them from universally determining the constitutionality of false speech because it invariably depends on the context of the case.[16] As evidence, he first lists Court decisions that have struck down restrictions on false speech, comparing Alvarez and the landmark First Amendment case New York Times Co. v. Sullivan. In both decisions, Chemerinsky says, the Court recognized the importance of protecting false speech in very different contexts.[17]

Alvarez, Chemerinsky argues, reiterated the Court’s endorsement judicial protection for false speech.[18] He notes Justice Kennedy’s explanation of how the Stolen Valor Act’s overbreadth failed to survive exacting scrutiny, and how it means that false speech is constitutionally protected, even in some cases of defamation and fraud.[19] He also mentions the Court’s unanimous decision in Susan B. Anthony List v. Driehaus[20] to remand a case regarding an Ohio law against false speech on candidates in political campaigns.[21] Although the Court itself did not rule on the law’s constitutionality, Chemerinsky argues, it did recognize such a law’s potential to stifle electoral speech.[22]

However, Chemerinsky says, the Court has occasionally wavered in protecting false speech under the First Amendment, reflecting the balancing act inherent to First Amendment analysis.[23] Since the Court has declared false speech to be valueless and unworthy of First Amendment protection in multiple rulings, and has allowed officials to prohibit false speech under oath, it is impossible for the Court to say false speech is always or never protected under the First Amendment: “Inescapably, the Court will need to balance the benefits of protecting the false speech against the costs of doing so. Such balancing is inherently contextual and will yield no general answer as to the Constitution’s protection of false speech.”[24]

An example of Chemerinsky’s point is commercial speech, which the Court has provided intermediate scrutiny protection at a level still below that enjoyed by noncommercial expression.[25] The four-part test established by Central Hudson Gas & Elec. v. Public Svc. Comm’n in 1980 allows falsehood as a basis for government regulation of advertising.[26] But in a 2017 law review article, law professor Martin Redish and attorney Kyle Voils argue the levels of protection for commercial and noncommercial speech have converged since 1993, creating a de facto “equivalency principle.”[27] This principle, they say, equates the marketplace value of commercial and noncommercial speech.[28] The Court enacts the principle by restrict commercial speech in a situation where noncommercial speech would be protected “because of a showing of harm uniquely associated with commercial speech,” although the Court itself may not have recognized it.[29]

Redish and Voils argue that by the logic of the equivalency principle, false commercial speech holds the same value as false noncommercial speech.[30] They clarify that they do not believe the two should receive the same protection under the law, but that commercial speech’s stricter regulation should be based upon its greater potential for harm and not on any perceived lack of value.[31] In other words: “the equivalency principle demands an assumption of equivalent value, not equivalent consequences or equivalent protection.”[32]

Although the writers critique the Court for failing to conclude whether their equivalency principle applies to the regulation of false commercial speech, they affirm that the court’s equation of commercial and noncommercial speech is constitutionally sound and grounded in theory of free expression.[33] They explain that while the Court has defined commercial speech as speech which does no more than propose a transaction, other discussion of goods and services is fully protected under the First Amendment when it is neutral or opposed to making transactions.[34] Therefore, less protected commercial speech and protected noncommercial speech are distinguishable only by the motivation of the speaker, which they say is insufficient grounds to bar commercial speech from the realm of public discourse.[35] Citing cases like Nader v. General Motors[36] and Nike v. Kasky[37] where criticism of commercial sellers receives more First Amendment protection than the sellers’ responses, they say the equivalency principle corrects for the inconsistent treatment of speech in support and in opposition to making transactions.[38]

In the third section of their paper, Redish and Voils discuss the implications of the equivalency principle for false commercial speech. They conclude that because providing less constitutional protection for commercial speech than noncommercial is unjustifiable, any regulatory distinction between the two types of speech must be based on false commercial speech’s unique capacity to cause harm.[39] Because noncommercial speech can be excluded from First Amendment protection when it causes harm, and because commercial speech is distinguished only from noncommercial speech by mens rea, the writers thus urge the Court to evaluate false commercial speech by the same standard as noncommercial speech by basing its protection on the nature of the harm it causes and not dismiss it as unprotected outright.[40] However, they concede that under the equivalency principle, knowingly false commercial speech would likely be regulated more than its noncommercial equivalent because of its greater potential to cause harm.[41]

In a 2016 law review article, communication law professor Jason Zenor describes a similar liberalizing trend to the one enjoyed by commercial speech. He says Court decisions like the Alvarez rulingand the denial of certiorari to Care Committee v. Arneson[42] represent the end of statutory bans on false electoral speech, enabling political candidates to lie about material facts.[43] He argues that these laws serve an important purpose to the modern political system and that the Court should instead place more restrictions on “false speech of material fact.”[44]

In the third section of his paper, Zenor proposes that false political speech be treated like false advertising, with restrictions on it subject only to intermediate scrutiny.[45] He challenges the notion that “the remedy to ‘bad’ speech is more ‘good’ speech,” arguing that political candidates have filled the marketplace of ideas with harmful speech that cannot be repaired with truthful “counterspeech” by using the First Amendment as a pretense to lie.[46] Reducing the standard to which false campaign speech is held, he says, would hold politicians accountable for the narratives they spread and uphold the “esteem and deference given to the First Amendment.”[47]

Pointing to the Central Hudson test’s requirement that regulation of commercial speech serve only a substantial government interest, Zenor cites Justice Harry Blackmun’s majority opinion in Burson v. Freeman,[48]which holds that the government has “a compelling interest in protecting voters from confusion and undue influence.”[49] Therefore, regulation on false campaign speech of material fact would survive intermediate scrutiny because the government would be pursuing its interest in upholding the integrity of the political process.[50] Instead of permitting state governments to protect the political process, Zenor says, the Court is ignoring “a long history of precedent which recognizes that the First Amendment does not protect false factual statements that cause harm and serve no legitimate interest.”[51] As for the torts of libel and slander currently in place, he says they are insufficient to prevent false campaign speech because of the high risk and costs of winning a defamation suit.[52]

History of False Speech Laws

The first major attack on false speech in American history came in 1798 with the passage of the Alien and Sedition Acts.[53] Amid rising hostility from France, the in-power Federalist Party’s foreign policies faced harsh criticism from the opposition party, the Democratic-Republicans.[54] Federalists, believing publicly expressed sympathy towards France threatened national security, moved to suppress dissent by passing the acts.[55] While three so-called Alien Acts imposed restrictions on immigrations and foreign nationals, the Sedition Act of 1798 banned “any false, scandalous and malicious writing or writings against the government of the United States… with intent to defame the said government.”[56]^,[57] The act was primarily enforced against Republican newspaper editors who criticized Federalist President John Adams.[58]

While the Supreme Court never evaluated the Sedition Act, it has gone down in history as decidedly unconstitutional. After its passing, Republicans immediately decried it as such.[59] In 1800, its unpopularity helped elect Republican President Thomas Jefferson, who pardoned all who were convicted under it.[60] Some scholars trace the American tradition of press freedom not to the First Amendment but to the Sedition Act because the backlash against the act formed the first public debate around American civil liberties.[61] Eventually, Justice William Brennan wrote in the majority opinion for New York Times v. Sullivan that the act’s attackers had “carried the day in the court of history.”[62]

In 1890, Samuel D. Warren and future Supreme Court Justice Louis Brandeis published their landmark law review article, The Right to Privacy, which originated the tort of invasion of privacy.[63] In the late 19th century, there were frequent calls to rein in the so-called yellow press, a style of journalism characterized by artifice and sensationalism.[64] In their article, Warren and Brandeis argue that the laws of slander and libel were insufficient to combat the press’s excesses because they could not guarantee damages for the emotional trauma caused by invasion of privacy.[65] In 2025, most of the United States recognizes a right to privacy, and the tort of false-light distortion now allows plaintiffs to sue for the mental distress of being misleadingly depicted in the media, not just for reputational damages.[66]

With Schenck v. United States, a concrete constitutional test for false speech emerged.[67] In the court’s majority opinion, Justice Oliver Wendell Holmes determined that Congress could regulate speech that presented a clear and present danger of creating undesirable circumstances, famously writing: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”[68] This “clear and present danger” test and Holmes’ colorful analogy have become one of the most quoted legal hypotheticals in the study of American constitutional law.[69] However, some critics say the standard should be discarded because the Schenck decision upheld a conviction of political dissidents during World War I.[70] The test has since been overruled by Brandenburg v. Ohio. [71]

The Sullivan decisionmarked a pivotal point in the law of false speech and defamation.[72] L.B. Sullivan, a commissioner in Montgomery, Alabama, sued the New York Times for printing an advertisement soliciting donations to Dr. Martin Luther King Jr.’s legal fund and detailing police repression against civil rights protestors in the American South which contained minor factual errors.[73] The Alabama Supreme Court ruled in Sullivan’s favor, reasoning that the Times had irresponsibly failed to verify the potentially libelous allegations in the advertisement before publishing it, but the Court unanimously reversed its decision.[74] Justice Brennan’s majority opinion introduced the aforementioned “breathing space” doctrine, recognizing the flexibility of the concept of truth.[75]

Because of the need for “breathing space” around freedom of expression, the Court determined that public officials must prove defamatory statements were made with “actual malice” to collect damages for libel.[76] This new actual malice doctrine was a deliberately broad expansion of the right to speak falsehood under the First Amendment.[77] It also determined that the absolute defense of truth was not enough to protect freedom of expression from the constraints of libel law.[78]

Legal scholar Rodney Smolla has described the doctrine as “a deliberate exercise in overkill” because “it would insulate speakers from liability for false defamatory statements of fact that were published unreasonably.”[79] Targets of such statements would only have legal recourse if the statement was deliberately false or spoken with disregard for its accuracy.[80] Since Sullivan, the Court has increasingly relaxed the law of libel, and numerous countries and international governing bodies have looked to the decision in developing their own free speech doctrines.[81]

False Speech Prohibitions Across Speech Categories

This paper divides protected speech into noncommercial and commercial speech.[82] These speech categories sit at separate tiers in the hierarchy of protected expression and are subject to varying forms of regulation, which determine the extent to which false speech is permissible for each category.[83]

Political and social expression, considered the form of speech most important to personal fulfillment and the democratic process, generally enjoys the highest level of First Amendment protection.[84] However, the Constitution’s high valuation of noncommercial statements crumbles away when those statements are false. Across numerous rulings, the Court has held that false statements of fact are valueless and are not protected by the First Amendment like truthful statements are.[85] It has cited false speech’s disruption of the marketplace of ideas and its potential to corrode reputations beyond the power of counterspeech to repair.[86]

This does not mean the Court is absolutely in favor of regulating false speech.[87] Rather, the Court has acknowledged it must “protect some falsehood in order to protect speech that matters.”[88] Therefore, some false speech is safeguarded under the First Amendment despite being apparently valueless.[89] The actual malice doctrine, for example, requires proof of actual malice in order for a public figure to successfully sue for libel, providing de facto protection for false speech made without actual malice.[90] In fact, Justice John Paul Stevens once wrote that the Court’s characterization of false speech as without constitutional value may have been overbroad.[91] In short, false social and political speech is protected to the point it causes no cognizable harm; it cannot be restricted solely because it is false.[92]

In contrast, false commercial speech receives decidedly less protection.[93] In general, the Court has allowed government regulation of commercial speech because it is “linked inextricably to commercial activity,” which the government has traditionally regulated.[94] Therefore, commercial speech as a whole receives less First Amendment protection than other forms of speech.[95]

False and misleading commercial speech receives zero First Amendment protection.[96] In the majority opinion for the landmark Central Hudson decision, Justice Lewis Powell wrote that the First Amendment’s treatment of commercial speech is structured around advertising’s role in informing the public.[97] Therefore, “the government may ban forms of communication more likely to deceive the public than to inform it.”[98] This doctrine allows the government to prohibit materially false advertising, and literally true advertising that is nonetheless likely to deceive customers.[99]

Attitudes Towards False Political Speech Over Time

During World War I, Congress passed the Espionage Act of 1917, criminalizing criticism of the government deemed to be destabilizing.[100] Convictions under this act led to two landmark Court opinions, authored by the same justice but espousing contradictory ideas. In 1919, Justice Holmes devised the “clear and present danger” test in Schenck, enabling the government to crackdown on speech it deemed harmful.[101] Then he reversed himself months later in a dissent to Abrams v. United States, arguing that free trade in ideas was the best test of truth, not governmental regulation.[102] Holmes, who has since been recognized for his massive influence on free speech doctrine, said his test should be reserved only for immediate threats to national security.[103]

Holmes’ contradictory ideas shaped both concurrences and dissents to 1971’s New York Times Co. v. United States.[104] In a 6-3 ruling, New York Times held that the government could not impose a prior restraint preventing newspapers from publishing certain classified documents.[105] These documents, known as the Pentagon Papers, revealed how the government had misled Americans on its reasons for pursuing the Vietnam War.[106] Four of the concurring judges said the government had failed to demonstrate how the circumstances warranted a prior restraint.[107] Two, Justices Hugo Black and William O. Douglas, said they could think of no situation where it would be warranted.[108]

Decades later, concerns arose again around the prevalence of false speech in politics.[109] In response, some states enacted laws criminalizing lies of material fact in support of a candidate made with actual malice.[110] Some courts have found them unconstitutional, but the Court has avoided ruling on them.[111] In 2012, it denied certiorari to the Arneson case, allowing an Eighth Circuit overturning of a false campaign speech law to stand.[112] Two years later, the Court remanded Susan B. Anthony List v. Driehaus to a lower court after the Sixth Circuit had found neither defendant it unripe to be heard.[113] In Driehaus, then-Congressman Steven Driehaus had suedpro-life advocacy organization Susan B. Anthony List for announcing plans to post a billboard alleging he had voted for taxpayer-funded abortion, saying the group had violated Ohio’s prohibition against false electoral speech.[114] After the Court determined both petitioners had demonstrated sufficient injury for the case to be heard, the Southern District of Ohio found the false speech law unconstitutional.[115] The Alvarez decision, made in the same period, reiterated the Court’s hesitance to limit false speech. In the majority opinion, Justice Kennedy cites Holmes’ endorsement of free trade in ideas, adding: “Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person.”[116]

Conclusion

In the 2020s, the concept of truth has become unstable. Ascendant artificial intelligence, declining trust in institutions and constrained academic freedom have allowed individuals to form personal impressions of material truth, threatening the assumption of rationality at the core of American civic life. In times like these, there can be a strong temptation to protect the rational minds of voters by criminalizing the dissemination of false speech. The Court has done well in resisting this temptation. Allowing an institutionalized version of the truth to exist would set an irrevocable precedent, enabling the government to effectively criminalize a sector of thought. It is a privilege too great to exist.

“Persecution for the expression of opinions seems to me perfectly logical,” Justice Holmes wrote in his monumental dissent to Abrams.[117] If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” Holmes understood the importance of permitting free exchange of ideas. It is up to the American people, and the Court, to follow his lead.

[1] United States v. Alvarez, 132 S. Ct. 2537 (2012), at 2542.

[2] Id.

[3] Id.

[4] Military medals or decorations, 18 U.S.C. § 704 (b), (c) (2012)

[5] 617 F.3d 1198, 1201–1202 (CA9 2010).

[6] Alvarez, 132 S. Ct. at 2537.

[7] Alvarez, 132 S. Ct. at 2543.

[8] Id. at 2548-2549.

[9] Id. at 2556.

[10] Id. at 2553.

[11] NAACP v. Button, 371 U.S. 415 (1963), at 433.

[12] New York Times Co. v. Sullivan, 376 U.S. 254 (1964), at 272.

[13] William E. Lee, et al., The Law of Public Communication (12th ed. 2023).

[14] Erwin Chemerinsky, False Speech and the First Amendment, 71 Okla. L. Rev. 1 (2018).

[15] Id. at 2.

[16] Id. at 10.

[17] Chemerinsky, supra note 14 at 7.

[18] Id.

[19] Id. at 7-8.

[20] Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014).

[21] Chemerinsky, supra note 14 at 8.

[22] Id.

[23] Id. at 9.

[24] Id. at 10.

[25] Central Hudson Gas & Elec. v. Public Svc. Comm’n, 447 U.S. 557 (1980).

[26] Id. at 566.

[27] Martin Redish & Kyle Voils, False Commercial Speech And The First Amendment: Understanding the Implications of the Equivalency Principle, 25 Wm. & Mary Bill of Rts. J. 765

[28] Id. at 766.

[29] Id. at 766-767.

[30] Id. at 768.

[31] Id.

[32] Id.

[33] Id. at 768-769.

[34] Id. at 779.

[35] Id. at 780-781.

[36] Nader v. General Motors Corporation, 255 N.E.2d 765 (1970).

[37] Nike, Inc. v. Kasky, 539 U.S. 654 (2003).

[38] Redish & Voils, supra note 27 at 782.

[39] Id. at 794.

[40] Id. at 797.

[41] Id.

[42] 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011), cert. denied, 133 S. Ct. 61 (2012).

[43] Jason Zenor, A Reckless Disregard for the Truth? The Constitutional Right to Lie in Politics, 38 Campbell L. Rev. 41, at 46. (2016.)

[44] Id.

[45] Id. at 63-66.

[46] Id.

[47] Id.

[48] Burson v. Freeman, 504 U.S. 191 (1992).

[49] Zenor, supra note 43 at 68.

[50] Id. at 72.

[51] Id.

[52] Id. at 69

[53] Paul J. Cornish, John Adams, Free Speech Center at M.T.S.U. (Jul. 2, 2024), at https://firstamendment.mtsu.edu/article/john-adams/

[54] David Jenkins, The Sedition Act of 1798 and the Incorporation of Seditious Libel into First Amendment Jurisprudence, 45 Am. J. Legal Hist. 154 (2001).

[55] Id. at 156.

[56] Id.

[57] Sedition Act, 1 Stat. 596 (1798).

[58] Peter McNamara, Sedition Act of 1798, Free Speech Center at M.T.S.U. (Sept 29, 2025), at https://firstamendment.mtsu.edu/article/sedition-act-of-1798/

[59] Jenkins, supra note 54 at 156.

[60] Id.

[61] Id. at 157.

[62] Sullivan, 376 U.S. at 276.

[63] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

[64] Chemerinsky, supra note 14 at 2.

[65] Warren & Brandeis, supra note 63 at 13.

[66] Lee et al., supra note 13 at 170, 197.

[67] Schenck v. United States, 249 U.S. 47 (1919).

[68] Id. at 52.

[69] Genevieve Lakier & Evelyn Douek, Falsely Shouting Fire, 4 J. Free Speech L. 747 (2024).

[70] Id.

[71] Brandenburg v. Ohio, 395 U.S. 444 (1969).

[72] John Bruce Lewis & Bruce L. Ottley, New York Times V. Sullivan At 60: Where Does Defamation Law Go Now?, 73 DePaul L. Rev. 995 (2024).

[73] Kyu Ho Youm, The “Actual Malice” of New York Times Co. v. Sullivan: A Free Speech Touchstone in a Global Century, 19 Comm. L. Pol’y 185 (2014).

[74] Id. at 189.

[75] Id. at 190.

[76] Id.

[77] Rodney A. Smolla, Core Doctrine Likely To Hold, 22 Comm. Lawyer 11 (2004).

[78] Chemerinsky, supra note 14 at 7.

[79] Id. at 20.

[80] Id.

[81] Youm, supra note 73 at 186.

[82] Lee et al., supra note 13 at 45-47.

[83] Id.

[84] Id.

[85] Chemerinsky, supra note 14 at 9.

[86] Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

[87] Rayhan Langdana, False and Misleading Political Speech: A Normative Case for Regulation, 98 Tul. L. Rev. 877 (2024).

[88] Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

[89] Langdana, supra note 87 at 884.

[90] Id.

[91] Kasky, 539 U.S. at 664.

[92] Langdana, supra note 87 at 887.

[93] Id.

[94] Friedman et al. v. Rogers et al., 440 U.S. 1 (1979).

[95] Langdana, supra note 87 at 888.

[96] Central Hudson, 447 U.S. at 593.

[97] Id. at 563.

[98] Id.

[99] Langdana, supra note 87 at 888.

[100] Espionage Act of 1917, ch. 30, tit. I, 40 Stat. 217 (1917).

[101] Schenck, 249 U.S. at 52.

[102] Abrams v. United States, 250 U.S. 616, 630 (1919).

[103] Thomas Healy, The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story behind Abrams v. United States, 39 J. Sup Ct. Hist. 35, 47 (2014).

[104] 403 U.S. 713, 752, 759, 761. (1971).

[105] Id.

[106] Lee et al., supra note 13 at 71.

[107] Id.

[108] Id.

[109] Zenor, supra note 43 at 42.

[110] Id. at 45.

[111] Id.

[112] Arneson, 133 S. Ct. at 61.

[113] 573 U.S. 149, (2014)

[114] Id.

[115] Susan B. Anthony List v. Ohio Elections Comm’n, 45 F. Supp. 3d 765 (2014).

[116] Alvarez, 132 S. Ct. at 2550, (citing Schenck, 250 U.S. 616, 630).

[117] Abrams, 250 U.S. at 630.