Saturday, March 26, 2011

Case o' The Week: Living is Lying - Alvarez and the First Amendment

“If you tell a girl you love her in the evening and then tell your roommate she’s a bimbo the next morning, and the two compare notes, someone’s going to call you a liar.” United States v. Alvarez, __ F.3d __, 2001 WL 941617 (9th Cir. Mar. 21, 2011) (Ord. denying reh’g en banc)(Kozinski, C.J., concurring in denial of reh'g en banc).

This, and other various and sundry ruminations on the lies that we all tell, are featured in the intriguing (and welcome) order denying rehearing en banc for an important First Amendment decision, in the criminal context. Decision available here.

Players: Hard-fought case by CD Cal AFPDs Brianna Fuller and Jonathan Libby. Judge M. Smith, concurring in denial of rehearing en banc; concurring decision by C.J. Kozinski. Dissenting opinions from the denial of rehearing en banc by Judges O’Scannlain and Gould.

Facts: Alvarez, recently elected to a regional water district’s board of directors, bragged at a public meeting that he was a retired Marine who had been wounded and had received the Congressional Medal of Honor. Id. at *12 (O’Scannlain, J., dissenting from ord. denying reh’g en banc) (hereinafter, “O’Scannlain, J.”)

This was actually a “series of bizarre lies.” Id. (quotation and citation omitted).

Alvarez was prosecuted under the “Stolen Valor Act,” which makes it a federal crime to lie about military commendations. Id. After Alvarez entered a conditional guilty plea, a three-judge panel applied First Amendment strict scrutiny and held the Act to be an unconstitutional restriction – both as applied, and on its face. Id. Judge Bybee dissented, and a call for an en banc vote was made. Id. at *1 (Ord.)

Issue(s): “Is the speech forbidden by the Act protected by the First Amendment, or does it fall into one of the well-defined and narrowly limited classes of speech that is unprotected by the First Amendment?” Id. at *1 (Smith, M., J., concurring from ord. denying reh’g en banc) (hereinafter, “Smith., M., J.”) (quotations and citation omitted). Or, put differently, does the First Amendment require that statutes that criminalize false speech undergo strict scrutiny? Id. at *13 (paraphrasing O’Scannlain, J.).

Held: “In each of [the Supreme Court opinions relied upon by the Dissenters], the Court has made clear that false speech is not subject to a blanket exemption from constitutional protection.” Id. at *2 (Smith, M., J.). “The petition for panel rehearing and rehearing en banc is DENIED.” Id. at *1 (Ord.).

Of Note: First Amendment wonks are having a field day with Alvarez, see, e.g., blog here, but the most entertaining part of the case is Chief Judge Kozinski’s concurring opinion. Id. at *7 (Kozinski, C.J., concurring in denial of reh’g en banc) (hereafter, “Kozinski, C.J.”).

As the Chief correctly observes, “Saints may always tell the truth, but for mortals living means lying.” Id. at *8. He then rifts on a long catalog of our most-frequent fibs, and why we tell them. Id. at *8 (describing, among others, the lie “You're the greatest living jurist” offered to obtain a clerkship). Beneath the humor, the CJ makes a convincing point – and to tell the truth, the dissenting opinions seem a bit anemic after this tribute to free speech.

How to Use: In its most-narrow reading, Alvarez is a one-off case on a infrequently-charged statute. Judge O’Scannlain, however, gives us a long list of common federal offenses where false statements have been criminalized – and haven’t (yet) fallen to a First Amendment challenge. Id. at *17 (O’Scannlain, J.).

Reading that handy list makes one wonder if the Ninth’s Alvarez First Amendment analysis may have some legs for a constitutional challenges to other false-statement crimes?

For Further Reading: In the 2009 Hinkson case, the Ninth affirmed a conviction after a key government witness lied on the stand about receiving the Purple Heart – yet when that remarkable lie was discovered, no new trial was permitted! See blog entry here on Hinkson denial of rehearing en banc. Broadly speaking, a majority of Ninth judges assured us in the Hinkson denial of rehearing that the snitch’s Purple Heart lie wasn’t a big enough deal to warrant reversing the conviction. See order denying reh'g en banc here. That most-regrettable Hinkson decision has been a burr under our saddle ever since.

One of those same judges, in Alvarez, now argues that lying about a military medal is false speech that doesn’t deserve First Amendment protection and that should give rise to a federal criminal conviction. See Alvarez, at *13.

Military medals are a hot topic, in the last couple of years – it is interesting (and troubling) to read the opinions surrounding the en banc orders in Hinkson and Alvarez side-by-side.

Image of the Congressional Medal of Honor from Image of Pinocchio's nose from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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