Comments by Judge Kozinski on lying in the Ninth Circuit case U.S. v. Alvarez, 648 F.3d 666

Here's a great section in the concurrence by the Ninth Circuit's Judge Kozinski on the nature of lying, in regards to a First Amendment issue:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy ("No, I don't live around here"); to avoid hurt feelings ("Friday is my study night"); to make others feel better  [*27] ("Gee you've gotten skinny"); to avoid recriminations ("I only lost $10 at poker"); to prevent grief ("The doc says you're getting better"); to maintain domestic tranquility ("She's just a friend"); to avoid social stigma ("I just haven't met the right woman"); for career advancement ("I'm sooo lucky to have a smart boss like you"); to avoid being lonely ("I love opera"); to eliminate a rival ("He has a boyfriend"); to achieve an objective ("But I love you so much"); to defeat an objective ("I'm allergic to latex"); to make an exit ("It's not you, it's me"); to delay the inevitable ("The check is in the mail"); to communicate displeasure ("There's nothing wrong"); to get someone off your back ("I'll call you about lunch"); to escape a nudnik ("My mother's on the other line"); to namedrop ("We go way back"); to set up a surprise party ("I need help moving the piano"); to buy time ("I'm on my way"); to keep up appearances ("We're not talking divorce"); to avoid taking out the trash ("My back hurts"); to duck an obligation ("I've got a headache"); to maintain a public image ("I go to church every Sunday"); to make a point ("Ich bin ein Berliner"); to save face ("I had too much to drink");  [*28] to humor ("Correct as usual, King Friday"); to avoid embarrassment ("That wasn't me"); to curry favor ("I've read all your books"); to get a clerkship ("You're the greatest living jurist"); to save a dollar ("I gave at the office"); or to maintain innocence ("There are eight tiny reindeer on the rooftop").

And we don't just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics-an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn't matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one's public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it's critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight  [*29] shooter if lying is not an option?

Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression, which is unequivocally protected by the First Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 271-72, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Americans tell somewhere between two and fifty lies each day. See Jochen Mecke, Cultures of Lying 8 (2007). If all untruthful speech is unprotected, as the dissenters claim, we could all be made into criminals, depending on which lies those making the laws find offensive. And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false. The First Amendment does not tolerate giving the government such power.

Judge O'Scannlain tells us not to worry, because to say "[t]hat false statements of fact are always unprotected in themselves is not to say that such statements are always subject to prohibition." O'Scannlain dissent at 3779. This is double talk. If a statement is "always unprotected" by the First Amendment then it's presumptively subject to regulation. That it may enjoy derivative protection by osmosis from "other speech that  [*30] matters" is cold comfort to those who have no way of knowing in advance whether two judges of this court will recognize that relationship in any particular instance.

But it gets worse. Confronted with some of the many ways in which false speech permeates our discourse, Judge O'Scannlain comes up with new categories of exceptions to his regime-"expressions of emotion or sensation," "predictions or plans," "exaggerations" and "playful fancy." Id. at 3778-79. "Such statements," we are told, "are not even implicated" by the dissenters' analysis because they are not "falsifiable." Id. But this is patently not true. 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. And if you tell the Social Security Commissioner, "I have disabling back pain," and are then discovered jogging, golfing and jet-skiing, it will be no defense that you were merely expressing a "sensation" that is "non-falsifiable." Judge O'Scannlain also turns a tin ear to the complexity of human communication. "I just haven't met the right woman," could be a statement of opinion, as my colleague suggests, but  [*31] more likely is a false affirmation of heterosexuality. And where, exactly, is the dividing line between an "exaggeration"-which Judge O'Scannlain seems to think always gets constitutional protection-and a lie, which never does?

The dissent dismisses these difficulties by creating a doctrine that is so complex, ad hoc and subjective that no one but the author can say with assurance what side of the line particular speech falls on. This not only runs smack up against the Supreme Court's admonition against taking an " 'ad hoc,' 'freewheeling,' 'case-by-case' approach" in the First Amendment area, Smith concurrence at 3755, but results in the "courts themselves . . . becom[ing] inadvertent censors." Snyder v. Phelps, 131 S. Ct. 1207, 179 L. Ed. 2d 172, 2011 U.S. LEXIS 1903, 2011 WL 709517, at *6 (U.S. 2011). And, as Judge Smith elegantly demonstrates, Judge O'Scannlain's approach compounds the danger of arbitrariness by "invert[ing] the ordinary First Amendment burden" in requiring the speaker-even in the case of a criminal defendant-to prove that his speech deserves protection. Smith concurrence at 3746. Free speech simply cannot survive the kind of subjective and unpredictable regime envisioned by the dissenters.

Judge O'Scannlain  [*32] is right that the scenario I describe is "far removed from the one in which we actually live," O'Scannlain dissent at 3780, but only because the dissenters didn't prevail. Had they done so, we may very well have come to live in a world more like a Hollywood horror film than the country we know and adore.

Perhaps sensing the danger of the absolutist approach, Judge Gould proposes a narrower rule, one that would carve away First Amendment protections for speech concerning (1) some (2) military matters (3) where the interest of the speaker is low. Judge Gould's dissent illustrates the dangers of announcing a hypothetical rule without the need to apply it to a concrete case. As I show below, all three legs supporting Judge Gould's theory buckle as soon as weight is placed on them.

Before I get to that, however, let me point out just how wrong it would be to convene an en banc court in order to adopt a rule such as that proposed by our colleague. En bancs are generally appropriate to correct a conflict with the law of our own circuit, another circuit or the Supreme Court. The enterprise Judge Gould proposes would serve none of these purposes. Instead, he would have the en banc court adopt  [*33] a rule no other court has ever adopted and the Supreme Court has never hinted at. This strikes me as an unwise use of en banc resources.