Guest Post

By Ruthann Robson, Professor of Law & University Distinguished Professor, City University of New York (CUNY) School of Law. Professor Robson is also the ACS faculty advisor for the CUNY School of Law Student Chapter.

All of us are not in jail because very few lies are crimes. Falsehoods under oath, or to a government agent or agency, or in a fraudulent scheme, are all criminalized. But lies based on their subject matter are much more rarely the subject of criminal sanctions.

In the 2005 Stolen Valor Act, Congress has criminalized false statements that one has received a military medal such as the Purple Heart. The lie is a crime even if it is a mere boast in a bar or on E-Harmony.  Importantly, a lie about the same subject matter -- for example, the Purple Heart -- is not criminalized if the false statement is that one has not received the award when one has.

The Ninth Circuit, in a divided opinion, held this provision of the Stolen Valor Act unconstitutional as content discrimination under the First Amendment. Just last month and after the United States Supreme Court had taken certiorari, the Tenth Circuit also in a divided opinion, held the provision constitutional.

The Supreme Court will have a choice between two different approaches. On the one hand, falsehoods might be entirely beyond the protection of the First Amendment. Under this so-called categorical approach, while there are no such things as “false ideas,” there are certainly false statements of fact that are not essential to the truth-seeking function of the First Amendment. The government should be able to regulate these false statements, as it regularly does with regard to allowing damages actions for defamation and regulating commercial representations about products.

On the other hand, government regulations making content or viewpoint distinctions -- regulating the speech because of what the speech is “about” or because of the opinion it advocates -- are highly suspect. Courts demand that the government interest be compelling, with a burden on the government to show there are not less restrictive means.

By Amardeep Singh, a Co-Founder and Director of Programs at the Sikh Coalition

Much has been made of the fact that African Americans and Latinos endure disturbingly high rates of stop and frisk policing in New York City, and rightfully so. While blacks and Latinos comprise just over half of the city’s population, they endure 85 percent of police stops. Even more troubling, as young people in these communities bear the brunt of police stops, it is in fact stops of whites that more often yield illegal contraband.

So advocates are appropriately making noise and filing lawsuits alleging profiling by the New York City Police Department. Meticulously collected, publically released, government data provides them a rational basis for doing so.

But what happens when you have no such data? That's the situation of Sikhs at U.S. airports.

For years, Sikh Americans and advocacy groups have complained of unfair, extra scrutiny by Transportation Security Administration (TSA) screeners. The complaints run the gamut from concerns about mandatory pat downs of Sikh turbans, to removal of turbans without discernible cause, and 100 percent rates of secondary screening at some airports.

These accounts from Sikhs alleging profiling are admittedly anecdotal. They are routinely proffered by Sikh advocacy groups with limited resources and even more limited access to security checkpoints. “Smoking gun” evidence of intentional profiling occasionally emerges -- like the TSA “Mexecutioners” scandal in Honolulu -- but otherwise advocates and the TSA are perpetually engaged in a “yes you are, no we are not” ping pong match of profiling accusations and denials.

Yet if the TSA is to be believed, there is a way to settle once and for all whether it is profiling. The Sikh Coalition recently released an internal TSA memorandum, which discusses eight “strategic options” the agency could implement to “address racial profiling concerns” and “improve internal business controls as they relate to secondary screening procedures.”