9th Circuit reaffirms unconstitutionality of Stolen Valor Law
The 9th U.S. Circuit Court of Appeals Monday refused to hear en banc an appeal of a three-judge panel’s ruling that the federal Stolen Valor Law is an unconstitutional infringement of the fundamental First Amendment right to lie through your teeth.
The case involves Xavier Alvarez, a water district board member in Pomona, Calif., who introduced himself at a public meeting in 2007 by identifying himself as a retired Marine who had received the Medal of Honor. He never served in any branch of the military.
There was a similar case in Nevada but that included allegations of defrauding the Department of Veterans Affairs.
Judge Alex Kozinski summed up the significance of the ruling in a concurrence:
“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. 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. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as ‘rational basis review.’”
Kozinski later noted, “Americans tell somewhere between two and fifty lies each day. … If all untruthful speech is unprotected, as the dissenters claim, we could all be made into criminals, depending on which lies those making the laws find offensive. And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false. The First Amendment does not tolerate giving the government such power.”
Though the 9th has ruled on the constitutionality of such laws our wiser betters in Carson City are nonetheless forging ahead with their own version of a Stolen Valor Law. There are versions in the Senate and Assembly.
AB379’s bill draft notes the 9th Circuit’s earlier ruling and attempts to skirt it by making it a crime to “mislead or defraud” by making false representation of military service or honors. I thought fraud already was a crime. As for misleading, that covers a world of white lies, including allowing others to falsely assume.
