There’s always something fun going on in the Ninth Circuit. Last week, the Court voted against rehearing en banc in United States v. Alvarez, a case raising the constitutionality of the Stolen Valor Act (a law that essentially criminalizes false claims of military heroism). A divided three-judge panel struck down the Act on First Amendment grounds, and the Ninth Circuit voted against reconsidering that decision en banc.
Judge Diarmuid O’Scannlain (disclosure: my former boss) wrote a spirited and persuasive dissent from the denial of rehearing en banc, on behalf of himself and six other judges. The dissenters argued that the Act passes constitutional muster and that the First Amendment does not protect knowingly false statements of fact (subject to certain exceptions not presented by the law). The position that the Stolen Valor Act is constitutional is shared by a number of prominent scholars, including First Amendment guru Eugene Volokh.
But this is far from an open-and-shut case (unlike many of the Ninth Circuit cases that generate dissents from denial of rehearing, which we’ve previously described as the “Bat Signal” flashed by right-of-center Ninth Circuit judges to the Supreme Court when the lefties run amok). On the other side of the Alvarez case was Chief Judge Alex Kozinski — Professor Volokh’s former boss, and a jurist who, like Judge O’Scannlain, is often vindicated by SCOTUS smackdowns of Ninth Circuit liberals.
(Digression: I don’t like it when two of my most favorite federal judges cross swords! It’s like watching a fight between My Two Dads. I’d much rather see the two of them join forces against the Emperor Palpatine and She Who Must Not Be Named.)
Chief Judge Kozinski wrote a rather colorful concurrence to the denial of rehearing en banc. Some hilarious highlights from it, plus a fun movie-related tidbit from His Honor, after the jump.
The key passages from the Kozinski concurrence have been previously noted by a number of SCOTUS watchers, including Robert Barnes of the Washington Post, who sees the case as a likely candidate for Supreme Court review, and Josh Blackman, founder of FantasySCOTUS. Harlan picks out this great excerpt from the Kozinski concurrence:
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. 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. Phrases such as “I’m working late tonight, hunny [sic],” “I got stuck in traffic”and “I didn’t inhale” could all be made into crimes. 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.”
Harlan offers this amusing observation: “Don’t mess with JDate. For what it’s worth, I did an ALLFEDS search for jdate! and there were zero hits. Another first for Koz.”
And then there’s this:
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”);to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“ButI love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
See also “Oh no, Judge, that paragraph isn’t too long!”
(Seriously, though, it’s an awesome paragraph. The length, while perhaps excessive, is forgivable.)
Chief Judge Kozinski continues:
And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?
(Hey, don’t knock plastic surgery — it paid for my college and law school. If you call my parents for a consultation, be sure to ask for the ATL reader discount.)
Okay, that’s enough quotation from the pages of F.3d for one post. Let’s turn our attention to the movie-related tidbit.
I got numerous comments from ATL readers who were jealous of the fact that I had seen Atlas Shrugged before it was out in the theaters. Now there is something they can do to be part of Atlas Shrugged history. This video explains it:
You (and they) will have to wait and see which and how many of the Kozinski extended family will post a video.
Stay tuned — about Alvarez, and about Atlas Shrugged. If Chief Judge Kozinski shows up on the DVD, it should do wonders for sales!
United States v. Alvarez [U.S. Court of Appeals for the Ninth Circuit via How Appealing]
Is lying protected speech? [Washington Post]
Kozinski: “Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy” [Josh Blackman]
District Court Upholds Stolen Valor Act Against First Amendment Challenge [Volokh Conspiracy]