The First Amendment, Knowingly False Statements of Fact, and the Stolen Valor Act

The Ninth Circuit has just refused to rehear en banc the panel decision striking down the Stolen Valor Act; the opinions are here. I look forward to reading them shortly, but in the meantime I thought I’d note them for our readers. My post on the panel decision is here. My amicus brief urging the opposite result (in a different case that raises the same issue) is here, though that brief was written before the Supreme Court’s decision last year in United States v. Stevens, a decision on which the panel heavily relied. My post on a district court decision in the Fourth Circuit, reaching a result opposite the Ninth Circuit’s, is here.

If the government asks the Supreme Court to review the case, I expect the Court will grant certiorari. Though there is no inter-circuit split yet on the constitutionality of the Stolen Valor Act, the Court generally grants cert when a federal court of appeals strikes down a federal statute, since that’s a sort of inter-branch split (legislative plus executive vs. judicial); and the dissent by seven judges from the denial of rehearing en banc increases that likelihood. [UPDATE: The Court might also conclude that there is a broader split on the question whether knowingly false statements of fact — outside the categories of libel, fraud, false light invasion of privacy, perjury, and likely false statements to government investigators — are constitutionally unprotected. Compare this case and State ex rel. Public Disclosure Comm’n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998) (striking down a law banning knowingly and recklessly false statements in election campaigns) with Pestrak v. Ohio Elections Com’n, 926 F.2d 573 (6th Cir. 1991) (upholding a law banning such statements in election campaigns.]

It’s also possible that before the Court considers a government petition, likely in the Fall, there’ll be a contrary decision from the Tenth Circuit, in the Strandlof case; oral argument in that case is scheduled for May 12, 2011. (The Fourth Circuit case hasn’t yet been appealed, because the defendant hasn’t yet been sentenced.) Thanks to How Appealing for the pointer.

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