Intermarkets' Privacy Policy
« Oh Dear: Emily's List Attack On Palin Is Filled With... Ewoks | Main | Jon Stewart vs. Glenn Beck »
August 17, 2010

Ninth Circuit: You Have the Right to Lie About Military Service Awards

Last month, it was a federal district court in Colorado. Today, the Ninth Circuit agrees and strikes the Stolen Valor Act as a violation of the First Amendment prohibition on Congress "abridging the freedom of speech." The decision is here (PDF).

The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.

The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. ... The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.

Finding no appropriate way to avoid the First Amendment question [the defendant] poses, we hold that the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep.

The douchbag involved is something of a nutter (he also lied about playing hockey for the Detroit Red Wings):

On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. 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.”

Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of “I’m still around,” his self introduction was nothing but a series of bizarre lies.

The bolded sentence is what got Alvarez in trouble with the FBI.

I originally thought the Stolen Valor Act was broader in that it applied to things other than speech, like wearing the uniform or wearing or displaying medals. I also thought it required more for a conviction -- for example, proof of fraud or harm to another or attempts to gain a benefit.

I'm not a fan of the idea proposed by the prosecutors here that the First Amendment -- which purports to prevent Congress from "abridging the freedom of speech" -- doesn't apply to lies, though I admit I tend toward First Amendment absolutism.

Eugene Volokh said in an amicus brief in the Colorado case (PDF) that the Supreme Court has never articulated a clear rule for which knowingly false statements of fact are constitutionally protected and which are not. He believes that prohibiting lies about military service is constitutional, though, because there is low "constitutional value" in a knowing falsehood and it's not likely the law will deter true speech about military service.

Judge Bybee dissented, suggesting that the Supreme Court has been clear about excepting false statements from First Amendment protection:

[T]he better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact—as a general category—fall outside of First Amendment protection except in certain contexts where such protection is necessary “to protect speech that matters.” If a false statement does not fall within one of these exceptions, the general rule applies. And even in the exceptional contexts, a false statement that is neither satirical nor theatrical is unprotected if it is made with knowledge or reckless disregard of falsity.

It is extremely likely that the Supreme Court will take a Stolen Valor case and resolve the issue, though it might wait until there is a bonafide split in the circuit courts first. I have no idea how Mr. Determinator Justice Kennedy comes down on First Amendment stuff. I will note that Justice Scalia is something of an absolutist in this area. For example, he wrote a 1990 decision that held cross-burning to be protected speech ("Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.").

digg this
posted by Gabriel Malor at 02:53 PM

| Access Comments

Recent Comments
JayHawkfan63: "My understanding is the New World gave Europe Syph ..."

BackwardsBoy - Who can fight the beast? Revelation 13:4[/i][/s][/b][/u]: "The new band is a lot tighter than the previous on ..."

Andy_in_Colorado: "In the end we shall make thoughtcrime literally im ..."

Diogenes : "My understanding is the New World gave Europe Syph ..."

DB- just DB: "'What did you do in the war, daddy?''Played the tu ..."

I Have Questions: "It occurs to me that putting together private secu ..."

Hairyback Guy: "Lenin had syphilis. The commie disease. ..."

BifBewalski - sinis est culus: "Gonorrhea, though that's noting to clap about. ..."

RoyalOil: " This time. Perhaps. Bring that shit to my town ..."

Colin: "You have to admit those cameo outfits the sheriff ..."

blake - semi lurker in marginal standing: "I thought that was Madonna? Posted by: Two Weeks ..."

runner: "This staying up late is exhausting. ..."

Recent Entries

Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Powered by
Movable Type 2.64