Last week, we filed on behalf of the Legion of Valor of the United States and the Criminal Justice Legal Foundation an amicus brief
in the Stolen Valor Act case before the Supreme Court, United States
, No. 11-210
. There are six other amicus briefs on our side as well, all available at the ABA's case page
Our brief begins with an argument that the Act should be understood as prohibiting only intentional lies about military medals. That position is in keeping with our view on the importance of a mens rea element
in criminal statutes, and it also strengthens the statute against constitutional attack.
In the second part, we discuss the harm done by the fakers. This part is relatively short to avoid excessive overlap with other briefs in the case. We also include a short discussion of viewpoint neutrality, distinguishing R.A.V. v. St. Paul
In Part III, we take head-on the argument that the "crush video" case, United States
, subjects all speech to strict scrutiny, even bald-faced lies, unless it can be shoehorned into one of the specific historical categories listed in that decision. This may turn out to be the crux of the case.
The last part is addressed to Chief Judge Kozinski's colorful opinion about how horrible it would be if the government banned every sort of personal, trivial lie. Of course it would, but the problem there is not one of excessive intrusion on speech but of excessive intrusion into private matters, whether they be speech or conduct. If some sort of government interest requirement is necessary for a statute banning an outright lie, okay. It doesn't matter for this case what the threshold is, because this statute would pass any test that might be used. The panel majority in this case conceded that the statute serves a compelling
government interest, the highest standard, and another panel of the Ninth Circuit so held in a later case upholding another subdivision of the same statute.