Thursday, February 23, 2012

“It presumes that the government is going to have a ministry of truth . . . and I just don’t think that’s our tradition."

That was Justice Kennedy in the Stolen Valor case today.  More:

The Supreme Court jousted for an hour Wednesday about whether the First Amendment allows the government to prosecute people for lying about earning military honors, and, if so, what else might be fair game.
Lying about whether your child received a medal? wondered Justice Samuel A. Alito Jr.
Holocaust deniers? asked Justice Ruth Bader Ginsburg.
People who lie about extramarital affairs? offered Justice Elena Kagan.
Justice Sonia Sotomayor tried out a personal example: “I take offense when someone I’m dating makes a claim that’s not true.”
He seemed to have one sure supporter in Justice Antonin Scalia, whose comments were uniformly protective of the government’s interests.
“When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished” by those who falsely claimed them, Scalia said.
And Verrilli had one clear skeptic in Sotomayor.
“I thought the core of the First Amendment was to protect even against offensive speech,” she said. “You can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming that they got one.”
But the rest of the court seemed more conflicted. Chief Justice John G. Roberts Jr., for instance, asked Verrilli if the government could criminalize lying about whether one received a high school diploma.

We turn now to the merits of Doe’s appeal. In compelling Doe to produce the unencrypted contents of the hard drives and then in holding him in contempt for failing to do so, the district court concluded that the Government’s use of the unencrypted contents in a prosecution against Doe would not constitute the derivative use of compelled testimony protected by the Fifth Amendment privilege against self-incrimination. This is so, the court thought, because Doe’s decryption and production of the hard drives would not constitute “testimony.” And although that was the Government’s view as well, the Government nonetheless requested act-of-production immunity.13 The district court granted this request.

For the reasons that follow, we hold that Doe’s decryption and production of the hard drives’ contents would trigger Fifth Amendment protection because it would be testimonial, and that such protection would extend to the Government’s use of the drives’ contents. The district court therefore erred in two respects. First, it erred in concluding that Doe’s act of decryption and production would not constitute testimony. Second, in granting Doe immunity, it erred in limiting his immunity, under 18 U.S.C. §§ 6002 and 6003, to the Government’s use of his act of decryption and production, but allowing the Government derivative use of the evidence such act disclosed.

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