(CN) - A man who lied about receiving the Medal of Honor will face a Supreme Court review as to whether he should be held criminally liable, the justices said Monday.
The full 9th Circuit concluded that the white lie was permissible because the Constitution protects "all speech, including false statements."
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 in March, concurring with the federal appeals panel's denial of the government's request for an en banc hearing of the case.
"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 wrote. "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 that provision of 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.
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 criminalizing certain lies would create a slippery slope that would open a host of half-truths and exaggerations to prosecution.
In a hairsplitting decision last month, the 9th Circuit rejected a different constitutional challenge to the Stolen Valor Act brought by a man who tried to use the First Amendment to shield his actions - wearing the Purple Heart in fraud.
David Perelman pleaded guilty to two counts of fraud in Nevada because the government learned he had faked a Vietnam War shrapnel injury to get the Purple Heart and $180,000 in disability benefits. Perelman, who had actually shot himself in the thigh by accident in the 1990s, wore the medal he obtained by fraud to a national convention of the Military Order of the Purple Heart in Las Vegas.