Criminalizing Lying

March 28, 2011

Controlling Authority isn’t dead . . . well it is, but since I refuse to get a Facebook page, this is going to have to do for me. Remember the Stolen Valor Act? It’s the rather hysterically-named federal statute that makes it a crime to lie about receiving military honors. If you are brave enough to win the Medal of Honor, can anyone, especially some scumbag with the temerity to falsely claim to have won one too, really steal your valor? It seems to me that your valor is pretty much unassailable.

Those with long memories for utter trivia will remember that I have questioned both the constitutionality and the wisdom of this statute.
So I was glad to see that last week the Ninth Circuit refused to reconsider en banc a decision affirming a district court decision that voided a conviction under the SVA on the grounds that the statue violated the First Amendment’s protections for speech. Judge Kozinski’s concurrence is a great read.  Here’s the gravamen of it:

That the government can constitutionally regulate
some narrow categories of false speech—such as false advertising,
defamation and fraud—doesn’t mean that all such
speech falls outside the First Amendment’s bounds. As the
Supreme Court has cautioned, “In this field every person must
be his own watchman for the truth, because the forefathers did
not trust any government to separate the true from the false
for us.” Id. at 419-20 (internal quotation mark omitted);
Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,
concurring). Yet the regime the dissenters agitate for today—
one that criminalizes pure speech simply because it’s false—
leaves wide areas of public discourse to the mercies of the
truth police.

But what readers will  remember best about his opinion is his catalog of 29 reasons that the non-saints among us lie, and examples for each type of deliberate falsehood.  These range from the truly kind (“the doc says you’re getting better”) to the less admirable (“I’m allergic to latex”).

To recap — not all bad behavior can or should be criminalized.  Someone who lies about receiving a Medal of Honor will be scorned by all good people once his lie is discovered.  That should be punishment enough, and should provide enough deterrence.  And if it doesn’t, tolerating the occasional lying braggart is the price that a free nation must pay for the freedom to lie about being Jewish on JDate (to use one of Judge Kozinski’s examples).

I want comments from Paris!