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Mar 22, 2011 
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Are lies protected by the First Amendment, or are they not? Should they be?
That is one of the issues raised by United States v. Alvarez, a Ninth Circuit case testing the constitutionality of the Stolen Valor Act, which makes it a crime to claim falsely that one has been awarded certain military honors.
In August 2010, the Ninth Circuit reversed Mr. Alvarez' conviction under the Act, rejecting the government's attempt to create a new, broad First Amendment exception for false speech:
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. While we agree with the dissent
that most knowingly false factual speech is unworthy of
constitutional protection and that, accordingly, many lies may
be made the subject of a criminal law without creating a constitutional
problem, we cannot adopt a rule as broad as the
government and dissent advocate without trampling on the
fundamental right to freedom of speech. See Jonathan D.
Varat, Deception and the First Amendment: A Central, Complex,
and Somewhat Curious Relationship, 53 UCLA L. Rev.
1107, 1109 (2006) (“[A]ccepting unlimited government
power to prohibit all deception in all circumstances would
invade our rights of free expression and belief to an intolerable
degree, including most notably—and however
counterintuitively—our rights to personal and political self
rule.”). Rather we hold that regulations of false factual speech
must, like other content-based speech restrictions, be subjected
to strict scrutiny unless the statute is narrowly crafted
to target the type of false factual speech previously held
proscribable because it is not protected by the First Amendment.
As I've argued before, the government and other professional censors are forever attempting to forge new categorical exceptions to the First Amendment — which exceptions they can then interpret broadly to achieve their ends. The Ninth Circuit's decision — which held that the government couldn't expand the already-existing categorical exceptions — was more important on that meta-level that it was on the level of this single Act.
Yesterday the Ninth Circuit denied rehearing en banc, with concurrences with and dissents from that decision. If you read any part of it, read the concurrence by Chief Judge Alex Kozinski. In my opinion Kozinski is the best writer I have encountered on the federal bench. Regrettably he's better known for other things. This concurrence is classic Kozinski: he mercilessly shreds the dissent's frightening view that the government ought to be able to penalize any lie, using both legal erudition and multi-layered wit. A sample:
Saints may always tell the truth, but for mortals living
means lying. We lie to protect our privacy (“No, I don’t live
around here”); to avoid hurt feelings (“Friday is my study
night”); to make others feel better (“Gee you’ve gotten skinny”);
to avoid recriminations (“I only lost $10 at poker”); to
prevent grief (“The doc says you’re getting better”); to maintain
domestic tranquility (“She’s just a friend”); to avoid
social stigma (“I just haven’t met the right woman”); for
career advancement (“I’m sooo lucky to have a smart boss
like you”); to avoid being lonely (“I love opera”); to eliminate
a rival (“He has a boyfriend”); to achieve an objective (“But
I love you so much”); to defeat an objective (“I’m allergic to
latex”); to make an exit (“It’s not you, it’s me”); to delay the
inevitable (“The check is in the mail”); to communicate displeasure
(“There’s nothing wrong”); to get someone off your
back (“I’ll call you about lunch”); to escape a nudnik (“My
mother’s on the other line”); to namedrop (“We go way
back”); to set up a surprise party (“I need help moving the
piano”); to buy time (“I’m on my way”); to keep up appearances
(“We’re not talking divorce”); to avoid taking out the
trash (“My back hurts”); to duck an obligation (“I’ve got a
headache”); to maintain a public image (“I go to church every
Sunday”); to make a point (“Ich bin ein Berliner”); to save
face (“I had too much to drink”); to humor (“Correct as usual,
King Friday”); to avoid embarrassment (“That wasn’t me”);
to curry favor (“I’ve read all your books”); to get a clerkship
(“You’re the greatest living jurist”); to save a dollar (“I gave
at the office”); or to maintain innocence (“There are eight tiny
reindeer on the rooftop”).
I've argued several times before Kozinski; it's every bit as bracing as you'd expect.
Last 5 posts by Ken
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