The 9th Circuit yesterday ruled that Stolen Valor laws violate the 1st Amendment and that there is a limited right to lie. Josh Gernstein:
In a 2-1 ruling, the appeals court panel found that the poetically named Stolen Valor Act is unconstitutional. The majority threw out the prosecution of an elected member of a California water district board, Xavier Alvarez, who claimed at a meeting in 2007 and on previous occasions that he was the recipient of a Congressional Medal of Honor.
Judge Milan Smith, writing for colleague Thomas Nelson, said the law went too far, even though many legal experts view deliberately false speech as unprotected by the Constitution.
We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.
While asserting that they were not endorsing “an unbridled right to lie,” Smith and Nelson said regulations of false speech that have been upheld by the courts were limited to narrow categories in which a direct and significant harm was caused. But, they said, the harm caused by people making false statements about military decorations was not evident. The judges also said it wasn’t clear that prosecution was necessary to discourage fraudsters, who are generally humiliated by public revelation of their lies.
Smith wrote:
When valueless false speech, even proscribable speech, can best be checked with more speech, a law criminalizing the speech is inconsistent with the principles underlying the First Amendment.
In a somewhat incredulous dissenting opinion, Judge Jay Bybee (best known for his work on so-called torture memos at the Office of Legal Counsel) contends his colleagues are deliberately ignoring a series of statements from the Supreme Court declaring false speech to be unworthy of protection in most instances.
Lying about valor in combat is a particularly despicable act, worthy of contempt. But it shouldn’t be a crime.
The decision could also become a political football, much like the court’s famous/infamous Pledge of Allegiance ruling. But there is this wrinkle facing new efforts to blast the far-out liberal 9th Circuit: all three judges involved in Tuesday’s decision were Republican appointees. Smith and Bybee were named to the bench by President George W. Bush. Nelson was appointed by President George H.W. Bush.
Another note: Both the majority and the dissent refer to Chief Justice John Roberts’s decision earlier this year in U.S. v. Stevens. Roberts slammed the position taken by the Justice Department in the person of Solicitor General Elena Kagan in that dog-fighting videos case as a danger to free speech. The majority wields Roberts’s opinion in what appears to be an effort to buttress the appeals court’s opinion if it is ultimately reviewed by the Supreme Court. Bybee also ups the ante a bit by throwing in a couple of citations to one of new Justice Elena Kagan’s law review articles on speech regulation.
If the Supreme Court takes this case, it could be a fascinating test of where Kagan stands on free speech issues — a subject that went largely unexplored at her confirmation hearings.
I have no opinion on whether SCOTUS will take this case, much less how they’ll rule. Justices have a tendency to give strong deference to precedent, so if there’s a lot of groundwork on the protected status of lies, they may uphold the law on that basis rather than taking a de novo look at the free speech issue.
Obviously, lies have less protection than truth. For example, we broke with British tradition on defamation law very early in our history, with the notion that “truth is an absolute defense.” Similarly, the Clear and Present Danger test cites the example of shouting “Fire!” in a crowded theater. If there’s reason to believe there’s a fire, this speech is not only protected but encouraged. Otherwise, it’s actionable. And, of course, there are all manner of laws against fraud and false testimony.
But, while it touches some raw nerves for obvious reasons, it’s not immediately clear how lying about having served in combat or been awarded a medal for valor should be legally different from lying about athletic prowess in high school, the number of sexual partners you’ve had, or the size of one’s sex organs.
For a melancholy but humorous look at the subject, see the David Allan Coe classic “Love is a Never Ending War.” I’d call your attention in particular to this passage
I never fought in those two wars
but Lord my throat was dry
so I showed them scars and stitches
inflicted by Maria
but I didn’t think that would get me a drink
so I blamed it on Korea
The video is sadly but unsurprisingly unavailable on YouTube.
