<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
<HTML><HEAD>
<META content="text/html; charset=iso-8859-1" http-equiv=Content-Type>
<META name=GENERATOR content="MSHTML 8.00.6001.19019">
<STYLE></STYLE>
</HEAD>
<BODY bgColor=#ffffff>
<DIV><FONT size=2>
<H1 property="dc.title">The High Court: Is lying protected speech?
Military-medal case on track for Supreme Court</H1>
<H3 property="dc.creator">By Robert Barnes, <SPAN class=updated>Sunday,
March 27, <SPAN class=special>6:14 PM</SPAN></SPAN></H3>
<P>Why do we lie? Let Alex Kozinski, the chief judge of the U.S. Court of
Appeals for the 9th Circuit in San Francisco, count the ways.</P>
<P>“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’),”
Kozinski wrote recently in a <A
href="http://www.ca9.uscourts.gov/datastore/opinions/2011/03/21/08-50345.pdf">case
about an inveterate liar named Xavier Alvarez</A> who, just to drive home the
point, is also known as Javier Alvarez.</P>
<P>Kozinski listed 28 other reasons we avoid the truth, including to “avoid a
nudnick” and to “defeat an objective (‘I’m allergic to latex’),” and ending
sweetly with “to maintain innocence (‘There are eight tiny reindeer on the
rooftop’).”</P>
<P>Kozinski’s entertaining treatise was in service to his point about the
Constitution.</P>
<P>“If all untruthful speech is unprotected <SPAN>. . .</SPAN> we could all be
made into criminals, depending on which lies those making the laws find
offensive,” he wrote. “And we would have to censor our speech to avoid the risk
of prosecution for saying something that turns out to be false. </P>
<P>“The First Amendment does not tolerate giving the government such power.”</P>
<P>Kozinski’s is the first appeals court to examine a law that seems likely to
be on the way to the Supreme Court: the Stolen Valor Act, passed by Congress in
2005 to deal with an apparent proliferation of people falsely claiming to be
military heroes.</P>
<P>The act allows a fine and/or a six-month prison term for someone who “falsely
represents himself or herself, verbally or in writing, to have been awarded any
decoration or medal authorized by Congress for the Armed Forces of the United
States.” </P>
<P>The penalty increases to a year in prison if the person lies about a Purple
Heart, a Medal of Honor or another particularly high honor.</P>
<P>There’s no question Alvarez lied. After winning a seat on Southern
California’s Three Valleys Municipal Water District board of directors in 2007,
he introduced himself by saying: “I’m a retired Marine of 25 years. I retired in
the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I
got wounded many times by the same guy.”</P>
<P>None of that was true. But a district judge overturned Alvarez’s conviction
by declaring the law a violation of the First Amendment. A panel of the 9th
Circuit agreed, and earlier this month the full court refused to reconsider the
panel’s decision.</P>
<P>Judge Diarmuid O’Scannlain and six other 9th Circuit judges said their
colleagues were wrong. He said the decision to find the law unconstitutional
“runs counter to nearly forty years of Supreme Court precedent” in which the
court “has steadfastly instructed that false statements of fact are not
protected by the First Amendment.”</P>
<P>Both sides cite the court’s landmark free-speech cases. Judge Milan D. Smith
Jr., who agreed the law was unconstitutional, said 1964’s <A
href="http://www.law.cornell.edu/supct/html/historics/USSC_CR_0376_0254_ZS.html">New
York Times Co. v. Sullivan </A>made clear that “false speech is<I> not</I>
subject to a blanket exemption from constitutional protection.”</P>
<P>He said the court has never included “false statements of fact” to be among
the classes of speech unprotected by the First Amendment. He noted that as
recently as last year’s decision in <A
href="http://www.supremecourt.gov/opinions/09pdf/08-769.pdf">United States v.
Stevens, </A>the court’s list of “well-defined” unprotected speech included only
“obscenity, defamation, fraud, incitement and speech integral to criminal
conduct.”</P>
<P>O’Scannlain and the dissenters point to cases decided after Sullivan,
including <A href="http://www.oyez.org/cases/1970-1979/1973/1973_72_617">Gertz
v. Robert Welch, Inc </A>., in which the court said that “there is no
constitutional value in false statements of fact.” </P>
<P>Judge Ronald M. Gould said he believed the Stolen Valor Act could be
sustained because “the power of Congress is necessarily strong” in a military
context and there is a “lack of any societal utility in tolerating false
statements of military valor such as those made by Alvarez.”</P>
<P>Gould acknowledged that each side can make a case from the words of Supreme
Court precedents and said it “remains open for the court” to clarify its First
Amendment doctrine.</P>
<P>That seems likely. The U.S. Court of Appeals for the 4th Circuit is scheduled
in May to hear an appeal from a decision by a Virginia district judge that the
law passes constitutional tests. A federal judge in Denver found just the
opposite.</P>
<P>Until then, the task of punishing the liars might be up to such phony-hunters
as <A
href="http://www.washingtonpost.com/wp-dyn/content/article/2010/05/09/AR2010050903363.html?hpid=topnews">Doug
Sterner of Alexandria</A>, profiled by The Washington Post last year, and Web
sites such as <A href="http://reportstolenvalor.org/">ReportStolenValor.org.</A>
<A href="http://reportstolenvalor.org/">There appears to be no shortage of
leads.</A></P>
<P><A href="http://reportstolenvalor.org/"><STRONG></STRONG></A></P>
<P><A
href="http://reportstolenvalor.org/"><STRONG><STRONG>barnesr@washpost.com</STRONG></STRONG></A></P></FONT></DIV>
<DIV><FONT size=2></FONT> </DIV>
<DIV><FONT size=2>__________________________</FONT></DIV><FONT size=2>
<DIV><BR>Wayne A. Fox<BR>1009 Karen Lane<BR>PO Box 9421<BR>Moscow, ID
83843</DIV>
<DIV> </DIV>
<DIV><A href="mailto:waf@moscow.com">waf@moscow.com</A><BR>208
882-7975<BR></FONT></DIV></BODY></HTML>