The Ninth Circuit has gotten a lot of attention lately -- and rightfully so -- for its important preliminary Prop. 8 decisions. But there's some other stuff, on the merits, that's worthy of attention as well.
Like this case.
It's a great debate between Judge Milan Smith, who authors the majority opinion, and Judge Bybee, who dissents. Both do a wonderful job. Both are passionate. Both opinions are worth reading. Notwithstanding the fact that you're thereby committing yourself to almost 80 single-spaced pages. You've got some very creative stuff here. Both chambers really put a ton into this.
We've also not heard the last of this one. The majority opinion holds the Stolen Valor Act, which provides criminal penalties for falsely claiming to have been awarded to Congressional Medal of Valor (and simliar awards), to violate the First Amendment. That's a provocative holding. You will see an en banc call on this one. You may well also see the Supreme Court take this one up if the opinion stands. It's a holding that seems at least plausible after 35-plus pages. But as a one-liner, it is way too easy to dismiss this one as another result from a "wacko" Ninth Circuit. So the opinion today is only the beginning of the story, not its end.
Personally, I probably come out somewhere between the views of Judge Smith and Judge Bybee. I think that Judge Bybee is largely correct (as a thematic matter) that false statements of fact are not typically protected by the First Amendment, but disagree with his view that the relevant inquiry here is a historical one. It's instead precisely what Judge Bybee claims that it is not (and Judge Smith's critique of Judge Bybee's view is right about this) : an ad hoc inquiry as to the social value of the relevant speech. Sure, one can claim that the rules regarding obscenity, defamation, etc. all result from purely historical inquiries, and perhaps in a parallel universe in which every Supreme Court justice is a strict originalist, one of those billions of universes might have come up with the First Amendment regime in which we now live. But we don't live in that universe. Obscenity isn't protected because the Court didn't like it and didn't think it had much value (and protected the stuff that did). Defamation isn't protected for similar reasons. False political speech remains protected because the Court thought it had value even though false.
The history in this area is not the foregone product of history. It is instead a series of deliberate policy choices that often (but not always) track similar policy preferences in the past. So I'm not persuaded by Judge Bybee's view that the "rule" is that false statements of fact aren't protected unless there's historical protection. It's a coherent view, but it's not an accurate description of either the genesis or content of existing jurisprudence. At least for me.
As for Judge Smith, I agree with him that some false statements are constitutionally protected notwithstanding their falsity. I agree that the First Amendment requires "breathing room" for some speech, and hence that Congress might not be permitted to impose punishment for some false statements. I would also interpret the Stolen Valor Act to require scienter -- the statute doesn't facially impose that requirement, but to be constitutional, I think it has to be so limited. The First Amendment would, in my view, preclude punishment for negligently false statements. You have to know of the falsity of what you speak. Furthermore, in my view, the Act would also need to be limited to statements that the speaker intended others to believe; e.g., to rely upon in making an assessment. You can't punish the Onion or Steven Colbert or Tom Hanks even if they "claim" to have won the Congressional Medal of Honor. If they don't intend to instill belief, the First Amendment would preclude their punishment. We need not depend exclusively upon the exercise of executive discretion in such cases. The Constitution is an independent bar. So I'd severely limit the statute in those ways, all of which I believe is required by precedent. Plus is fully consistent with what I sincerely believe was the intent of Congress. Or at least what would have been their intent had they actually thought about it before reflexively voting "Yes" for the passage of a statute that no politician in their right mind would dare oppose.
But that doesn't help Alvarez. Or probably any other person actually charged with the statute. He definitely had scienter, and knew he was lying. He was also definitely intending to deceive people -- to make people at the Water District (to which he had just been elected) think he was a "big deal". He wasn't kidding. So as applied to Alvarez's conviction, there's harmless error even if you limit the statute as I would. Moreover, it's not overbroad, since virtually everyone who would be charged with the statute would be similarly situated. So, in my view, yes, the statute has to be limited to survive a First Amendment challenge, but we can (and should) do so in a way that could nonetheless authorize punishment of Alvarez under the statute.
So what's the right test? For Judge Smith, it's the classic "clear and present danger" test. Just like falsely yelling "fire" in a crowded theatre is unprotected because it satisfies that test, so too (in Judge Smith's view) is Alvarez's speech protected because the statute fails that test.
But just as I disagree with Judge Bybee's test, while I agree with Judge Smith that the statute would fail a clear and present danger test, I don't agree that this is the correct test. Plenty of restrictions on speech don't satisfy the clear and present danger test. We don't allow obscenity even though people don't immediately commit crimes upon viewing it. Defamation isn't allowed even when reputational harms are slight and distant. And, yes, it's true that the cure for some false speech is more speech. But calling someone a "child molester" is actionable even when the entire audience immediately views the alleged perpetrator and twenty witnesses deny the truth of the matter asserted. As a categorical matter, that's not the right test either.
For me, then, the correct First Amendment test is precisely that indeterminate analysis that requires judges to exercise judgment. What's the social value of the particular false statement? Is it a matter of public concern? Do we need breathing room here? What harms might result from the persecution of this speech? What harms might be prevented? Does this speech really contribute so little to public debate that it can be outright criminalized?
In my view, this is one of those rare cases in which the false statement can indeed be punished consistent with the First Amendment. I agree with Judge Smith that false representations don't "trivialize" the actual winners or make bravery in combat less likely. But I think that there is an intrinsic harm to rewarding (even temporarily) individuals who are not deserving of this high merit the appreciation and respect rightfully accorded to those who are. This is, I concede, an incohate harm, and falls along the lines of "unjust enrichment". But preventing such undeserved rewards is itself a socially beneficial consequence. On the other side, in this particular area, I can see nothing at all of value that such false speech advances. Nor the need for breathing room were the statute limited in the manner I suggest (e.g., scienter, intended reliance, etc.). I don't see a public benefit from protecting someone who deliberately lies about winning the CMC in an attempt to mislead others. It's not like protecting someone who calls Obama a communist or a Kenyan or a baby-eater. (All of which are equally true.) Those false statements there's a reason to protect. That's not the case, however, here.
Let me try to persuade you of my position with two hypotheticals. First, a woman asks Dude X shortly before they are about to have sex "Do you have herpes?" and X knowingly and falsely says no, and is convicted under a statute making such conduct illegal. I think such a conviction would be permissible, even if the couple never actually had sex (they were interrupted, or the woman changed her mind), even if counterspeech was possible (an ex-girlfriend who knew the truth was in the next room), and even if there was no "clear and present danger" of transmission because the couple always intended to use a condom, transmission rates are uncertain, sex was only to commence after the movie they were watching ended, etc. So Judge Smith's test would get this one wrong. But I'd say that there's a general social detriment to such statements and they can be punished (civilly or criminally) consistent with the First Amendment.
The hypothetical that Judge Bybee gets clearly wrong, in my view, is this one: My co-worker asks me "You look thin. Have you lost weight?" and I say "Yes, five pounds in the last week," even though I know that I've gained two pounds during that period. That's a false statement. There's no "historical" protection for that, or "traditional" concern for protection of obesity-related representations. So Judge Bybee's test, in my view, permit the government to punish such a statement. But that's wrong too. I'd say, in an admittedly ad hoc balance, that while there's no huge benefit to such statements, we reasonably give some leeway to in this area, and there's no real downside to letting such statements go forward. Now, if a broadcaster hawking a particular diet says the same statement in an advertisement, I come out the other way; in that context, the statement's unprotected. But the First Amendment doesn't permit the government to slap me in prison because I lie about my weight to a friend.
So that's my position. So I think the right result is that the conviction gets affirmed, rather than reversed, but only on a very narrowed statute, and with a different -- and importantly different -- test than that applied by Judge Bybee.
One more thing. Since I'm agreeing with at least his ultimate vote, let me disagree with Judge Bybee on one more thing. He spends several pages arguing that lower courts must follow what the Supreme Court "says" rather than what it "means". E.g., "[T]he majority's principle rests on a line of reasoning that I cannot endorse: that our jurisprudence should rest on a what we think the Supreme Court 'means' rather than what it actually says . . . . We do not have the authority as a lower court to limit the Court's statements to what we believe they mean rather than what they actually say." With respect, I strongly disagree. Lower courts have several constraints and obligations, but central amongst them is a duty to decide the case in the manner it believes the Supreme Court would decide it. Normally, the Court's express language is a telling indicator of the Court's intent, so it'd take a lot to not follow that language.
But that "lot" sometimes exists, and when it does, the lower courts are obligated, in my view, to do precisely what Judge Bybee asserts they are precluded from doing. Imagine, for example, that a sentence in an opinion by the Court accidentally left out a "not" in the context of a larger opinion that made the omission clear, and yet this mistake was either not noticed or was not yet corrected (perhaps an appeal came while petitions for rehearing were pending). Is it really the obligation of the lower court to decide the case exactly opposite what it knows the intent of the Court to be? I think not. Or imagine the Court says that "limitations on X are impermissible" but X includes an obscure subcategory, Y, that it's crystal clear (with reference to both common sense and precedent) the Court didn't think about or intend to limit. I disagree that appellate courts are duty-bound to decide the case in a way the Court would promptly be compelled to reverse.
Moreover, sometimes a similar thing happens temporally. Sometimes the Court says X, and never expressly overrules X, but then decides legions of cases that are doctrinally inconsistent with any version of X. We commonly -- and rightly -- say in such cases that the rule of X has been "undercut" by subsequent precedent and, if we're sure is no longer intended as controlling law by the Court, don't follow it. Seems right to me.
Plus, Judge Bybee's rule is underinclusive as well as overinclusive. To take a contemporary example, imagine that the Court in a unanimous opinion says that "We really, really think that the standing rule is Y, but don't have to actually reach that issue because a different issue (Z) disposes of the case." The actual language of the opinion clearly says that Y isn't the rule. But does that really mean that a lower court is totally free to ignore the statement in Y as if it totally didn't exist? Not to me. Yes, the Court's actual statement was just that it has "grave doubts" about C, not that C is false. But to me, those "grave doubts" mean something relevant for the lower court, and something beyond the extent of the actual language.
So I respectfully disagree with Judge Bybee's extension of textualism beyond the Constitution to the mere text of Surpeme Court opinions. I think that's mistaken.
So a lot of constitutional jurisprudence in this one. Worth thinking about.
