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.").

posted by Gabriel Malor at 02:53 PM

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