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New First Amendment R.A.V.-Based Case on the Way to the Supreme Court?

Last week, The Ninth Circuit struck down a state law that criminalized knowingly false statements in cicitzen complaints against police officers. While the law can punish knowingly false statements generally, the court held that a law can't punish knowingly false statements on one side of an issue (here, knowingly false statements accusing police officers) but leave unpunished knowingly false statements on the other side (here, knowingly false statements by witnesses who are seeking to exonerate the police officer). The court cited R.A.V. v. City of St. Paul (1992), in which the U.S. Supreme Court struck down a ban on racist fighting words; a total ban on fighting words (i.e., epithets directed to a particular person that seem likely to trigger a fight), the R.A.V. Court held, would be constitutional, but certain kinds of discrimination within the category of fighting words -- for instance, banning racist fighting words but not other fighting words -- are unconstitutional.

Three years ago, though, the California Supreme Court upheld the same provision against the same sort of challenge. We thus not only have a split among lower courts (itself a reason for the U.S. Supreme Court to hear the case, when the split involves federal courts of appeals and state supreme courts), but a split between a state supreme court and the court of appeals in the very same circuit, about the very same law.

It's always risky to predict that the Court will grant cert in any particular case, but given this split, I'll go out on a limb and make such a prediction (unless the Ninth Circuit decides to take the case en banc and reverse it, which I doubt).

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