“‘Always’ is a deliciously dangerous word, often eaten with a side of crow”
Concurring in denying an en banc hearing on a Ninth Circuit Panel’s finding that the Stolen Valor Act at 18 U.S.C. § 704(b) is unconstitutional for First Amendment grounds, Judge Alex Kozinski aptly emphasized:
According to our dissenting colleagues, “non-satirical and non-theatrical[ ] knowingly false statements of fact are always unprotected” by the First Amendment. United States v. Alvarez, 617 F.3d 1198, 1224 (9th Cir. 2010) (Bybee, J., dissenting); see also O’Scannlain dissent at 3764; cf. Gould dissent at 3780. Not “often,” not “sometimes,” but always. Not “if the government has an important interest” nor “if someone’s harmed” nor “if it’s made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.
U.S. v. Alvarez, ___ F.3d ___ (9th Cir., March 21, 2011).
Thanks to a fellow listserv member for bringing Alvarez to my attention.