(CN) – The 9th Circuit refused to waver on its finding that a man should not have been held criminally liable for lying about winning the Medal of Honor. Criminalizing that lie could implicate “the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit,” Chief Judge Alex Kozinski wrote Monday.
“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,” wrote Chief Judge Alex Kozinski, concurring with the federal appeals panel’s denial of the government’s request for an en banc hearing of the case. “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.'”
Faced with a criminal indictment, Xavier Alvarez pleaded guilty to violating the Stolen Valor Act by telling his colleagues on a water district board in Los Angeles that he had been in the Marines for 25 years and had been awarded the Medal of Honor in 1987.
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.
On appeal in August 2010, a split panel of the 9th Circuit found the Stolen Valor Act unconstitutional because it trampled on the right to free speech.
“Saints may always tell the truth, but for mortals living means lying,” Chief Judge Kozinski wrote in defense of the panel’s reversal.
“Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression, which is unequivocally protected by the First Amendment,” he continued.
Although seven circuit judges called for a rehearing, that vote fell short of the majority of nonrecused active judges needed. Writing in dissent, Judge Diarmuid O’Scannlain argued that Kozinski’s views ran counter to precedent set by the U.S. Supreme Court.
“This is the first Court of Appeals decision to consider the constitutionality of the act, but the court’s opinion is not merely unprecedented; rather, it runs counter to nearly forty years of Supreme Court precedent,” he wrote (emphasis in original). “Over such time, the Supreme Court has steadfastly instructed that false statements of fact are not protected by the First Amendment.”
But Kozinski called the dissenters’ views utopian and “terrifying,” arguing that to make one kind of lie a crime could lead to a slippery slope where a host of half-truths and exaggerations would be open to prosecution.
“So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying,” he wrote. “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.”