The right to lie: Ninth Circuit says it exists 

It may not be getting as much attention as the ruling on Proposition 8 but another California court (the famously liberal Ninth Circuit Court of Appeals) made some waves recently by deciding that there is a right to lie.

Pending an appeal to the U.S. Supreme Court, people in the jurisdiction of the Ninth Circuit now have the ability to make false statements under First Amendment grounds.

The ruling came in response to litigation surrounding the Stolen Valor Act which made it a crime to lie about military service, a not-exactly-rare phenomenon among people looking for the respect veterans are usually given for their service.

I’m not a lawyer but it seems to me as though the ruling is more of a plea for a better-crafted piece of legislation that criminalizes veteran impersonation only if someone is receiving monetary or other benefits as a result. Here’s an excerpt:

The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.

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. [...] The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. [...]

[U]nder the government’s proposed approach, it would effectively become the speaker’s burden to prove that his false statement should be protected from criminal prosecution. That approach runs contrary to Supreme Court precedent. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776-77 (1986) (“In the context of governmental restriction of speech, it has long been established that the government cannot limit speech protected by the First Amendment without bearing the burden of showing that its restriction is justified.”) [...]

Second, the government’s approach would give it license to interfere significantly with our private and public conversations. Placing the presumption in favor of regulation, as the government and dissent’s proposed rule does, would steadily undermine the foundations of the First Amendment. In Cohen v. California, the Court rejected state regulation of profanity because “the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?” 403 U.S. 15, 25 (1971). This case is to that extent analogous. How, based on the principle proposed by the government, would one distinguish the relative value of lies about one’s receipt of a military decoration from the relative value of any other false statement of fact?

The government argues that the “protection of false claims of receipt of military honors is not necessary to a free press, to free political expression, or otherwise to promote the marketplace of ideas.” But in nearly every case, an isolated demonstrably false statement will be not be considered “necessary” to promoting core First Amendment values, and will often be contrary to it. In nearly every case, the false statement will be outweighed by the perceived harm the lie inflicts on the truth-seeking function of the marketplace of ideas. Using such an approach, the government would almost always succeed. However, such an approach is inconsistent with the maintenance of a robust and uninhibited marketplace of ideas.

It’s an interesting contention but not one that will likely to be final. The Supreme Court is likely to take the case but I doubt that whichever side it comes down on will be regarded as “settled law.”

Gabriel Malor over at Ace of Spades has more on the case that is worth reading. The full text of the decision is embedded below:

Ninth Circuit Court of Appeals: U.S. vs Xavier Alvarez

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A daily newspaper covering San Francisco, San Mateo County and serving Alameda, Marin and Santa Clara counties.
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