The Ninth Circuit Court of Appeals has ruled 2-1 that a law making it a crime to falsely claim military honors (such as medals) is unconstitutional, locating a ‘right to lie’ within the First Amendment:
“[G]iven our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment..”
In dissent, Judge Jay Bybee argued that the Supreme Court has made it clear that false speech is not usually worthy of First Amendment protection:
As Josh Gerstein notes at Politico, if this case is ticketed for the Supreme Court, things could get interesting:
“[B]oth the majority and the dissent refer to Chief Justice John Roberts’s decision earlier this year in U.S. v. Stevens. Roberts slammed the position taken by the Justice Department in the person of Solicitor General Elena Kagan in that dog-fighting videos case as a danger to free speech. The majority wields Roberts’s opinion in what appears to be an effort to buttress the appeals court’s opinion if it is ultimately reviewed by the Supreme Court. Bybee also ups the ante a bit by throwing in a couple of cites to one of new Justice Elena Kagan’s law review articleson speech regulation.
If the Supreme Court takes this case, it could be a fascinating test of where Kagan stands on free speech issues–a subject that went largely unexplored at her confirmation hearings.