9th Circuit rules that fibs can be protected speech
“Saints may always tell the truth, but for mortals living means lying.”
Those were the words of Chief Judge Alex Kozinski in Monday’s decision by the U.S. 9th Circuit Court of Appeals that the Stolen Valor Act is an unconstitutional restraint on free speech and a threat to every citizen who fibs to embellish his or her image, avoid embarrassment or perpetuate a child’s belief in Santa Claus.
The court struck down both the 2005 act of Congress and the fines and sentence meted out to a Pomona man convicted on criminal charges for falsely claiming to have been awarded the congressional Medal of Honor.
The Stolen Valor Act made it a crime punishable by up to a year in jail to falsely claim to have received high military decorations, as Xavier Alvarez did at a public meeting of the Three Valleys Municipal Water District in 2007.
But Alvarez’s groundless boast of heroic service in the U.S. Marine Corps doesn’t fall under any of the exceptions to 1st Amendment protection of words that are false, as with fraud and defamation, the full appeals court said in refusing to reconsider a 2-1 decision last year to invalidate the act in the court’s nine-state region.
“If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit,” Kozinski wrote in defense of the 1st Amendment.
“Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes,” Kozinski argued. “Without the robust protections of the 1st Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship.”
At least seven of his conservative colleagues on the appeals court disagreed, signing a dissent from the decision not to rehear the Alvarez case, the first in which someone was charged and convicted under the challenged act, the court said.
That expression of discord by more than a quarter of the court’s 26 active judges could signal that a government petition to the U.S. Supreme Court is in the offing.
“The court striking down a federal statute is a significant thing, and something one might expect to eventually reach the Supreme Court,” said Assistant U.S. Atty. Michael Raphael, noting that his office has not yet decided whether to recommend a high court appeal.
Tracy Schmaler, a Justice Department spokeswoman, declined to say whether the U.S. solicitor general was considering that move to rescue the Stolen Valor Act.
Kozinski and Judge Milan D. Smith wrote concurring opinions denouncing the six-year-old statute as overly broad and an assault on protected speech after the majority of the court’s judges voted in secret against a full-court rehearing of the Alvarez case.
“Lying about being a military hero is despicable and may have some impact on the government’s ability to recruit genuine heroes, but it’s hard to understand why it’s so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes,” or other unpopular speech held to have constitutional protection, Kozinski said.
In the dissent written by Judge Diarmuid F. O’Scannlain and signed by six other judges, the majority was accused of misinterpreting 40 years of Supreme Court decisions. The dissenters said the high court has consistently held that “the right to lie is not a fundamental right under the Constitution” and that “the erroneous statement of fact is not worthy of constitutional protection.”
Jonathan D. Libby, the federal public defender who represented Alvarez, said he expected the government to petition the Supreme Court for review because it usually seeks that ultimate judgment when a federal law is struck down in any of the judicial circuits.
“The judges have been looking at this from two very, very different perspectives,” Libby said of the divided 9th Circuit. “One presumes the 1st Amendment protects all speech and the other view is that lies have no protection whatsoever under the 1st Amendment. They come to different results, but I think the majority got it right here.”
Alvarez, now imprisoned on an unrelated fraud matter, according to Libby, entered a guilty plea in federal court in Los Angeles in 2008. He challenged the constitutionality of the law after being sentenced to three years’ probation, 416 hours of community service and fines of $5,100.
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