The New York Times has the Reuters report on today’s Supreme Court Argument.
From the story:
Justice Ruth Bader Ginsburg questioned whether a law could be adopted covering other false statements, such as denying that the Nazi Holocaust ever occurred. [Solicitor general] Verrilli [who argued for the government] answered that a law seeking to regulate that would have problems.
Of course, it is illegal in several European countries to deny the historical fact of the Holocaust. I have always taken for granted that such a law would be unconstitutional here. Verrilli agrees. Because we value free speech so highly, we (unlike the French or Germans, say) let people make all kinds of outrageous false claims about historical events without criminal liability attaching. We also are much more friendly to defamation defendants than Europeans. Criminalizing telling as specific category of lie is contrary to America’s tradition of vigorous protection of free speech. Republican presidential candidates have been telling us that the Obama administration, which defended this statute, is trying to turn the United States into Europe. I don’t think that this is what they have in mind, however.