Free Speech and the Criminal Law

Most commenters today were fixated on the Supreme Court’s decision upholding the Affordable Care Act (referred to by its critics as Obamacare). But in a less publicized decision, the Supreme Court decided, by a 6 to 3 vote, that a federal law making it a crime to lie about one’s military record was an unconstitutional infringement of the defendant’s First Amendment rights.

The First Amendment, of course, reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It’s been well-established that, except for certain kinds of speech such as commercial speech or speech that directly endanger’s lives (yelling “fire!” in a crowded theater), Americans generally have very broad liberty to speak and write, and to even say things that are hurtful, mean, or lies.

Words can’t be used to incite violence. For instance, the statement: “Go kill that guy,” while speech, can be used to show a threat, which again is illegal, if it is intended to intimidate or if a reasonable person would view it as intimidating and may be punishable as at least communicating threats, a Class 1 misdemeanor in North Carolina. But the statement, “I’m going to kill you!” made in jest as a joke is protected speech. Context matters.

Lies meant to defraud someone of goods or services can be punished, as we punish them in North Carolina with various kinds of laws, such as Obtaining Property by False Pretenses. But where the lie is simply a lie, and is not aimed at directly defrauding someone of a good or service, the lie is protected under the First Amendment.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.