Lying about military service protected speech, court affirms

The U.S. Court of Appeals in San Francisco (9th Cir.) reaffirmed a sweeping protection of speech earlier this week, denying a petition to rehear a case involving a law that makes lying about receiving military honors a crime.

In August, a three-judge panel of the federal appellate court ruled in United States v. Alvarez that Congress’ 2006 Stolen Valor Act was unconstitutional because of the severe limitations it placed on the First Amendment. The act criminalizes “falsely representing oneself as having been awarded any decoration or medal authorized by Congress for the Armed Forces.”

In response to the panel’s decision, the government petitioned for an en banc rehearing of the case — meaning that all of the Ninth Circuit's 26 active judges would have to preside over the hearing and weigh in on the case — but a majority of the court denied the request Tuesday.

In so doing, the majority noted that the U.S. Supreme Court's longstanding First Amendment jurisprudence "has made clear that false speech is not subject to a blanket exemption from constitutional protection," as are wholly unprotected categories of speech such as obscenity and false advertising. (The emphasis is in the opinion.)

In a colorful opinion concurring with the decision to deny a rehearing of the case, Chief Judge Alex Kozinski defended the original decision. He said that the speech the law attempts to limit does not fall into the "narrow" and "well-defined" classes of speech that are not typically protected.

Kozinski added that if the government makes it illegal to lie about military service, then there is no protection for the lies that arise every day.

“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,” Kozinski said. “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."

The case originated in 2006 at a municipal water board meeting in Claremont, Calif., when Xavier Alvarez said that he had served in the military for almost three decades and received a Medal of Honor. Alvarez never served in the military and he later pleaded guilty to violating the Stolen Valor Act, according to various news reports. He was placed on probation when a judge upheld the law.

But in the 2-1 decision in August, the Ninth Circuit threw out Alvarez’s conviction. Kozinski defended that decision Tuesday, noting that “Alvarez’s conviction is especially troubling because he is being punished for speaking about himself, the kind of speech that is intimately bound up with a particularly important First Amendment purpose: human self-expression.”

Seven of the court’s 26 active judges dissented from the majority decision to deny the rehearing request, arguing that the Constitution does not protect lying.

“[T]he majority ignored a straightforward aspect of First Amendment law: the right to lie is not a fundamental right under the Constitution,” they said.

A federal district judge in Colorado also held the act unconstitutional in July.