U.S. v. Alvarez, No. 08-50345 (8-17-10) (M. Smith with T. Nelson; dissent by Bybee). This is a fascinating opinion. The 9th holds unconstitutional as violating the First Amendment the statute, 18 U.S.C. 704, that criminalizes falsely claiming one has won the Medal of Honor. The defendant here was a liar. He ran for a water board commissioner seat and said that he was a Marine, that he served in Vietnam, and that he had won the Medal of Honor. All false. He also claimed at various times that he had been a police officer, played for the Detroit Red Wings, and married a Mexican starlet. Again, all false. He was a through-and-through liar. Lying is bad, acknowledged the 9th, but everyone does some lying. Moreover, lying, or satire, or exaggeration, is part and parcel of political debate. Falsehoods are wrong, but in the cut and parry of public issues, things get said. The First Amendment recognizes this. Although certain categories of speech have no First Amendment protection -- this includes libel or defamation -- there has to be a cognizable harm or injury. There is no harm or injury here tied to the lie. The medal winners are admired (indeed, the majority cites to the dissent in Hinson which concerns the lie of a government witness that he had won medals). The statement went to the speaker, and opened him up for ridicule and attack, as indeed happened. There is also no specific finding of intent attached to the statute, which could lead to overbroad prosecutions. The marketplace of ideas have many vendors, hawking many strange notions, and falsehoods may be in the pitch. That is one price the First Amendment allows to be protected. To criminalize this falsity would run the risk of silencing speech (The Colbert Report, for example) without a direct cognizable harm. This opoinion is a nice overview of the interplay between speech and criminal statutes.

In dissent, Bybee argues that the parade of horribles is hypothetical. The intentional statement can be tied to the intent to deceive, and that the libel laws and precedents are well attuned to this and can be used here.

Congratulations to AFPD Jonathan Libby of the FPD C.D. Calif. (Los Angeles).

U.S. v. Dotson, No. 09-30149 (8-17-10) (Tashima with Fisher and Berzon). This is an interesting Assimilative Crimes Act (ACA) case. The ACA is designed to fill in gaps in the federal criminal code under 18 U.S.C. 13. It uses state law to criminalize acts within federal enclaves. However, for ACA to apply, Congress cannot have enacted a statute or dealt with the acts that are the subject of the state code; and the state code must be criminal and not regulatory. Here, defendants served underage servicemen alcohol on an Air Force base in the state of Washington. The state code makes it a gross misdemeanor for such under-age serving. On appeal, the defendant argued that Congress had stepped into this area, giving to the Secretary of Defense the power to regulate alcohol use on the base. The 9th found that this was a general authorization but not a specific statute or law dealing with underage serving of alcohol. The defendant also argued that the underage serving was a regulation, because the state code was in regulation of alcohol. Again, the 9th didn't buy this, holding that criminal statutes could be in regulatory schemes. The 9th also did not find that the possible disparity between servicemen drinking (under DoD regs) and state law was the harm meant to be addressed by the ACA, but rather the acts of the defendant on or outside the federal enclave. The opinion provides a thorough discussion of the ACA framework, tests, and purpose.