The Truth Police
Joel Cohen and Katherine A. Helm|Law.com
The 9th U.S. Circuit Court of Appeals recently issued a decision that got people talking about the truth-seeking process in the law. For those who took notice, many asked incredulously, was our government actually trying to regulate false expression, in the form of lies? Do we have a truth police state in America? Now, we’re not talking about the 9th Circuit case holding that tattoos are expressions protected by the First Amendment, nor are we referring to the 9th Circuit’s en banc ruling permitting the government to invoke the state secrets privilege to end a lawsuit against the Bush administration’s alleged torture program. Governmental regulation of the truth is an existential undercurrent in many cases, even for non-conspiracy theorists, and the 9th Circuit had a busy summer.
We are talking about a case that directly addressed truth, and the extent to which the government can regulate untruths. That case is U.S. v Alvarez, 2010 WL 3222192 (9th Cir. Aug. 17, 2010) and the facts are as follows: Xavier Alvarez was a new member on a water district board in California who publicly introduced himself at a meeting as a “retired marine of 25 years” who had been “awarded the Congressional Medal of Honor.” These were lies. Alvarez never served in the marines, nor in any military capacity, and had certainly never received any military award. The FBI got a hold of a recording of the water board meeting and prosecuted Alvarez under the Stolen Valor Act, which makes it a federal crime to “falsely represent [oneself], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces . …” 18 U.S.C. § 704(b).
The 9th Circuit held the statute invalid as unconstitutional under the First Amendment, based on it being a content-based regulation of speech that did not survive strict scrutiny and was not recognized as an unprotected category of speech, such as defamation, obscenity, fraud, incitement or speech integral to criminal conduct. Bloggers and pundits, as they are prone to do sometimes, quickly whittled this holding down to a so-called “constitutional right to lie.”