The Ninth Circuit has handed down a decision affirming the earlier decision striking down the Stolen Valor Act. Passed in 2005, the Act has been criticized by civil libertarians as an attack on free speech. Here is a prior column on the Act. Now, Chief Judge Alex Kozinski has added his own voice to this debate — finding such lies protected under the first amendment. In a concurring opinion, Kozinski notes “Saints may always tell the truth, but for mortals living means lying.”

We have been following these cases, including the prior conviction of Xavier Alvarez, who falsely claimed to have received the congressional medal of honor.

The full court reviewed the earlier panel that ruled 2-1 to invalidate the act. Dissenting Judge Jay Bybee is familiar to civil libertarians. He is the judge that civil libertarians around the world have called to be charged for his role in the Bush torture program. He not only authored a now discredited argument in favor of the program, but is accused of misrepresenting existence law establishing waterboarding as torture. He is heard in this case criticizing the majority for misrepresenting the law. See Alvarez, 617 F.3d at 1223 (Bybee, J., dissenting). The ironies never end.

Kozinski noted in his concurrence to a decision by Judge Smith that “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 takes time away from solid constitutional analysis to give a tour-d-force of the lies that we live with:

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 main- tain 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 dis- pleasure (“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 appear- ances (“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 gaveat the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).

And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

The dissenters, however, respond in kind:

Finally, how should one address the bleak dystopia hypothesized by Chief Judge Kozinski? In his view, if we are to take the Supreme Court at its word that false statements of fact are unprotected by the First Amendment, then a variety of white lies, exaggerations, and cosmetic enhancements—and apparently the core of self-expression itself—must fall. See Kozinski Concurrence at 3756-59. Such fears are wholly unfounded and miss the very crux of my disagreement with the majority.

As an initial matter, most of the “lies” that Chief Judge Kozinski postulates are not false statements of fact whatsoever. They are opinions (“Gee you’ve gotten skinny;” “She’s just a friend;” “I just haven’t met the right woman;” “I’m sooo lucky to have a smart boss like you;” “I had too much to drink;” “You’re the greatest living jurist”); expressions of emotion or sensation (“I love opera;” “But I love you so much;” “It’s not you, it’s me;” “My back hurts;” “I’ve got a headache”); predictions or plans (“[I]t won’t hurt a bit;” “I’ll call you about lunch”); exaggerations (“We go way back”); and playful fancy (“There are eight tiny reindeer on the roof- top”). Kozinski Concurrence at 3756, 3758-59. Even if these were to be described—under the loosest possible definition— as statements of fact, they would hardly be falsifiable.

Both opinions are well written and worth a read on the constitutional analysis.

I debated this ruling on NPR (LA) with Eugene Volokh, professor of law at the UCLA School of Law, who agreed with the dissent by Judge Diarmuid F. O’Scannlain and six other judges. I respect Gene who is the founder of Volokh conspiracy, one of the largest legal blogs and probably the leading voice among blogs for conservatives. Gene made a case for arguing that lies are unprotected and thus the government could criminalize any lies. To his credit, he did not shy away from the implication of the view of the dissenters — a much broader criminalization of false statements.

We are obviously worlds apart. In areas like defamation, the Supreme Court has long held that even false statements can be protected in cases of public figures and public officials. The motivating concern is the breathing space needed for free speech. Free speech means that some obnoxious speech is allowed in society to preserve the robust and free expression of ideas. If the government can charge someone criminally for lies, the result destroys the “crush space” that free speech requires to flourish in our society. Most any controversial statements could be challenged as a lie on some level. A criminalization of lies would allow the government sweeping ability to proceed against critics and unpopular individuals for statements that can be claimed as falsehoods.

The Ninth Circuit opinion is a great victory for free speech. Where individuals lie about military records for financial benefits, they can (and have been) tried for fraud. The rest are lies which can be exposed and denounced — as in the case of Xavier Alvarez.

Here is the opinion: 08-50345

Source: LA Times

Jonathan Turley