Richard Epstein on Lying and the First Amendment

http://www.futureofcapitalism.com/2012/07/richard-epstein-on-lying-and-the-first-amendment

Libertarian law professor Richard Epstein latest column says the Supreme Court got it wrong in striking down as unconstitutional a law that made falsely claiming to have received military medals a crime punishable by a fine or imprisonment. He writes:

A quick look at the statute reveals some modest flaws in its drafting. Quite properly, the SVA applies only to false claims of receiving a military honor. But the statute does not require the claim made to be knowingly false, which is surely correct for criminal prosecutions. The omission in this case, however, counts for little, because it is hard to imagine that any person could make an innocent mistake about whether he or she has received the medal in question.

Beyond that, the SVA does not distinguish between serious public misrepresentations and casual remarks, like jokes made in the company of family and friends. These problems beset all laws of misrepresentation, which routinely make accommodations for them. It therefore makes sense to read in the knowledge requirement, knowing full well that it will not prove an obstacle to prosecution in any case.

The case was United States v. Alvarez, which struck down the 2005 Stolen Valor Act. Professor Epstein likens the law to restrictions against false advertising.

by Editor  |  Jul 10, 2012 at 12:13 pm receive the latest by email: subscribe to the free futureofcapitalism.com mailing list