Lance Armstrong has succeeded this week in establishing a constitutional right that is tailored perfectly for his legacy: the constitutional right to lie. U.S. District Judge Morrison England dismissed a lawsuit by people who bought his books while he was lying about his use of performance enhancing drugs and attacking his critics. In a clearly correct decision, England ruled that such writing is squarely protected by the First Amendment. The case is Stutzman v. Armstrong, No. 2:13-CV-00116-MCE-KJN, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, 2013 U.S. Dist. LEXIS 129204, September 9, 2013

The lawsuit by readers was always in my view meritless. Indeed, if England had gone the other way, it would have created a massive chilling effect on writers. There is no question that Armstrong is a liar and a cad. However, many people at the time had alleged drug use and these fans simply took his word that he was wrongly accused.

However, the description of the harm seems exceptionally weak:

“Sometime between 2001 and 2003,” Plaintiff Stutzman “learned about the book It’s Not About the Bike.” (ECF No. 22 at 7.) Plaintiff Stutzman bought the book and read it cover to cover; he found the book compelling and recommended the book to several friends. Plaintiff Wheeler followed Defendant Armstrong’s early cycling career and his cancer diagnosis and treatment, and purchased a copy of It’s Not About the Bike shortly after it was published. Plaintiff Wheeler purchased the book after “learning through the media about [Defendant] Armstrong’s supposedly truthful and inspiring account of his triumphant return to dominate the world of cycling after his devastating bout with testicular cancer.” (Id. at 8.) Wheeler “was so impressed with It’s Not About the Bike . . . that he bought Armstrong’s follow-up book, Every Second Counts . . . .” (Id. at 8-9.) Plaintiff Lauria currently has breast cancer, and “was inspired by advertising featuring reports of Armstrong’s successful battle against cancer, which moved her to purchase [Defendant] Armstrong’s books.” (Id. at 9.) Having learned that Armstrong took performance enhancing drugs to win races has left Plaintiff Lauria “bitterly angry,” and she would not have purchased either book had she known that Defendant Armstrong had used such drugs. (Id.)

The lawsuit sought $5 million in refunds for the books like autobiographies It’s Not About The Bike and Every Second Counts. (It turns out it was about the drugs Armstrong was using). The court analyzed the case as a SLAPP action under state law: “California’s anti-SLAPP (strategic lawsuit against public participation) statute is designed to discourage suits that “masquerade as ordinary lawsuits but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir. 2003)”

In a well-written decision, England wrote “The Court concludes, despite plaintiffs’ allegations that the Armstrong books contained false and misleading statements, that the content of the books is afforded full First Amendment protection.”

It is the same protected right as those who lie in “stolen valor” cases. In this case, the plaintiffs tried to get around the right by treating the books as commercial speech. It was a transparent attempt to circumvent the first amendment protections and expose others to damages for statements deemed untrue in the future. It would have made for exceptionally dangerous precedent. Frankly, neither the price of a book or Armstrong are worth it.

However, Armstrong faces a far greater challenge in other fraud cases, including claims from the United States government. Lies can lose their protection when used to secure contracts or payments.

Here is the case: USCOURTS-caed-2_13-cv-00116-6