Super Bowl Update

Forget morality. Is it legal, under the Constitution of the United States, to lie? Is speech that's completely unattached to reality still guaranteed free under the First Amendment?

The 9th Circuit Court in San Francisco says, yep, it sure is. The reason: We all do it.

The New Criterion offers this quotation from 9th Circuit Chief Judge Alex Kozinski's opinion, which offered 28 reasons why we all lie:

Judge Kozinski

"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 case about an inveterate liar named Xavier Alvarez who, just to drive home the point, is also known as Javier Alvarez. 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’)." Judge Kozinski concludes that "If all untruthful speech is unprotected . . . we could all be made into criminals, depending on which lies those making the laws find offensive."

The case considered by the 9th Circuit Court of San Francisco involved Xavier Alvarez who was convicted under the Stolen Valor Act, a law passed by Congress in 2005 to stem an apparent tide of people making up heroic military pasts.

Courthouse News Service describes Mr. Alvarez' situation this way:

Xavier (or Javier) Alvarez

Faced with a criminal indictment, Xavier Alvarez pleaded guilty to violating the Stolen Valor Act . . .Alvarez had apparently made a habit of lying about his military exploits, telling people that he had won the Medal of Honor for rescuing the American ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the Embassy to save the American flag, according to the initial 9th Circuit ruling. 

A federal judge ordered him to pay $5,000, serve three years of probation and do community service.

The aforementioned Stolen Valor Act levies a fine and/or a prison term upon conviction on anyone 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.” If you claim a Purple Heart, a Medal of Honor or any other particularly venerated decoration/medal that you didn't earn, you can get a longer prison term.

The Washington Post, writing about the 9th Circuit Court's recent ruling, reiterated that Alvarez's lying is an established fact.

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.” 

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.

The Post story goes on to tell us that the decision was far from unanimous.

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.” 

Both sides cite the court’s landmark free-speech cases. Judge Milan D. Smith Jr., who agreed the law was unconstitutional, said 1964’s New York Times Co. v. Sullivan made clear that “false speech is not subject to a blanket exemption from constitutional protection.” 

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 United States v. Stevens, the court’s list of “well-defined” unprotected speech included only “obscenity, defamation, fraud, incitement and speech integral to criminal conduct.” 

O’Scannlain and the dissenters point to cases decided after Sullivan, including Gertz v. Robert Welch, Inc., in which the court said that “there is no constitutional value in false statements of fact."

The Denver Post opined about the 9th Circuit Court's decision on Sunday, writing that:

Sometimes defending the First Amendment involves standing up for miscreants, no matter how distasteful. ... The truly sad part of this, we acknowledge, is that free speech has never been free. It has been achieved by the spilled blood of war heroes — the same people these scoundrels are impersonating.

Ay me, as Juliette said from her balcony. Never has it been more obvious that the law and morality are the most distant of relatives.

I'm sure politicians everywhere are holding their breath, waiting to hear whether the U.S. Supreme Court upholds our legal right to lie.

"A Burden Rightly Lifted." This political cartoon was printed in "Frank Leslie's Illustrated Newspaper," December 4, 1880. James Garfield had won the presidential election in November. Garfield is shown lying on the ground. Justice, with her scales and blindfold, lifts a heavy weight off Garfield, which is labeled "Calumny." This may be a reference to the Credit Mobilier scandal which haunted Garfield.