Kozinski: “Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy”

March 21st, 2011

Chief Judge Kozinski has this humorous opinion concurring in the denial of rehearing en banc in the Stolen Valor Act case:

According to our dissenting colleagues, “non-satirical andnon-theatrical[ ] knowingly false statements of fact are alwaysunprotected” 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 dissentat 3780. Not “often,” not “sometimes,” but always. Not “if thegovernment has an important interest” nor “if someone’sharmed” nor “if it’s made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.

So what, exactly, does the dissenters’ ever-truthful utopialook like? In a word: terrifying. If false factual statements areunprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases suchas “I’m working late tonight, hunny,” “I got stuck in traffic”and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies,exaggerations and deceptions that are an integral part ofhuman intercourse would become targets of censorship, subjectonly to the rubber stamp known as “rational basisreview.”

Don’t mess with JDate. For what it’s worth, I did an ALLFEDS search for jdate! and there were zero hits. Another first for Koz.

Koz has a lovely list of famous lies:

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t livearound here”); to avoid hurt feelings (“Friday is my studynight”); to make others feel better (“Gee you’ve gotten skinny”);to avoid recriminations (“I only lost $10 at poker”); toprevent grief (“The doc says you’re getting better”); to maintaindomestic tranquility (“She’s just a friend”); to avoidsocial stigma (“I just haven’t met the right woman”); forcareer advancement (“I’m sooo lucky to have a smart bosslike you”); to avoid being lonely (“I love opera”); to eliminatea rival (“He has a boyfriend”); to achieve an objective (“ButI love you so much”); to defeat an objective (“I’m allergic tolatex”); to make an exit (“It’s not you, it’s me”); to delay theinevitable (“The check is in the mail”); to communicate displeasure(“There’s nothing wrong”); to get someone off yourback (“I’ll call you about lunch”); to escape a nudnik (“Mymother’s on the other line”); to namedrop (“We go wayback”); to set up a surprise party (“I need help moving thepiano”); to buy time (“I’m on my way”); to keep up appearances(“We’re not talking divorce”); to avoid taking out thetrash (“My back hurts”); to duck an obligation (“I’ve got aheadache”); to maintain a public image (“I go to church everySunday”); to make a point (“Ich bin ein Berliner”); to saveface (“I had too much to drink”); 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 tinyreindeer on the rooftop”).

So how does one get a clerkship? By telling the Judge “You’re the greatest living jurist!”

Koz isn’t done yet. We tell lies with appearances, and not just words.

And we don’t just talk the talk, we walk the walk, asreflected by the popularity of plastic surgery, elevator shoes,wood veneer paneling, cubic zirconia, toupees, artificial turfand cross-dressing. Last year, Americans spent $40 billion oncosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’tmatter whether we think that such lies are despicable or causemore harm than good. An important aspect of personal autonomyis the right to shape one’s public and private persona bychoosing when to tell the truth about oneself, when to concealand when to deceive. Of course, lies are often disbelieved ordiscovered, and that too is part of the pull and tug of socialintercourse. But it’s critical to leave such interactions in privatehands, so that we can make choices about who we are.How can you develop a reputation as a straight shooter iflying is not an option?

H/T How Appealing