Over at SCOTUSblog, there's an interesting discussion about the Stolen Valor Act, a federal law that makes it a crime to falsely claim to have won military honors. Last year, the Ninth Circuit held that the Act violates the First Amendment’s protections of free speech (United States v. Alvarez).
The Obama administration is trying to get the Supreme Court to reverse the Ninth Circuit, on the grounds that knowingly false statements are outside the scope of First Amendment protections. Interestingly, the administration has adopted the argument of Jay Bybee, our own John Yoo's former colleague at the Office of Legal Counsel, who is now a Ninth Circuit judge and who dissented in the Alvarez case.
The facts of the case do not elicit sympathy for the defendant. Alvarez was a California public official. He stood in a public meeting and announced that he was a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. He was lying on all counts.
Still, I'm not comfortable with the conclusion that "false" statements are outside of the First Amendment. Generally, courts distinguish things like defamation and fraud because there is harm attached to them (eg, if Alvarez used his phony war record to obtain money, he'd be guilty of plain old fraud, and there would be no First Amendment issue). But to imprison a man for merely uttering a statement that is deemed to be "false?" My fear is that the administration is so keen on this because they want to lock up all "climate change deniers" for making "knowingly false statements." See where I'm going with this?