This statute reads:

Whoever falsely and willfully represents himself to be a citizen of the United States shall be fined under this title or imprisoned not more than three years, or both.

There is no restriction on whom or for what purpose the misrepresentation is made. For example, the following situation might occur: an American is considering whether to buy a house, so they talk to their prospective neighbours to ascertain the character of the neighbourhood. One of them claims to have born in Kansas and lived in the US for their entire life. After the American moves in, they discover that their neighbour lied and was an alien all along. The alien is convicted under 18 USC §911.

The federal courts upheld a conviction under the predecessor of this statute in United States v. Achtner, 144 F.2d 49 (1944) and upheld the constitutionality of the same statute in United States v. Tandaric, 152 F.2d 3 (1945).

However, in the decades since WWII, the Supreme Court has greatly expanded the scope of First Amendment free speech protections, so one might wonder whether the conviction in the hypothetical situation described above would still be held constitutional.

  • 1
    My understanding is that the Court limited this to cases where the speaker was fraudulently obtaining a benefit, such as voting or employment. I would agree this couldn't be sustained if it was just general false speech. Oct 31 '18 at 23:51

There is, of course, no way to tell how the Court would deal with such a case today. This is not a frequently litigated issue, with lots of case law. I note that in the case you link to, the court limited the statute to false claims made "with a fraudulent purpose". This normally means that the claimant is attempting to secure an improper financial or materiel advantage. In the United States v. Tandaric case, the person convicted had falsely claimed to be a US Citizen on an employment application for a company which did not hire non-citizens, and so gained a job through this false statement. He could have been convicted of ordinary Fraud. The court has not been as protective of Fraud under the First Amendment as it has been of speech generally, or even of false but non-fraudulent speech. I am not at all sure if the court would overturn this law in a similar case today.

Edit: In the United States v. Achtner case, the court wrote:

But we agree with the District Court that the representation of citizenship must still be made to a person having some right to inquire or adequate reason for ascertaining a defendant's citizenship; it is not to be assumed that so severe a penalty is intended for words spoken as a mere boast or jest or to stop the prying of some busybody, ...

This seems to dispose of the example in the question of a neighbor who is merly inquiring as to the character of the area, or perhaps from simple curiosity, and a false speaker who seems to get no direct benefit or advantage from the falsehood. Both linked cases involved false statements made to employers or potential employees, during wartime at that, with the false speaker's employment apparently at stake.

  • Note that in the Achtner case (according to my reading) the defendant had already been employed at the company for many years at the time when they inquired about his nationality. Is that still fraud?
    – Brian
    Oct 31 '18 at 18:11
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    In general, if a person makes a false statement that is materiel with the intent that it be believed and relied on, and it resonably is relied on, with a result to the person's financial benefit or the other party's detriment, that is fraud. If a long time employee is asked about citizenship, with the implication that s/he will be fired or demoted or not promoted if the answer is "no", then a false "yes" would be fraud, i would think. This is different from the case of a neighbor not involved in any transaction who falsely states his citizenship. Oct 31 '18 at 18:16

I want to come back and do some more analysis on this, but I suspect that under Alvarez, this would be unconstitutional.

The government is not allowed to punish speech simply because it is false and concerning some specific topic, but that's what seems to be happening here.

Unless the speech is integral to fraudulently obtaining some material benefit or otherwise unprotected, I can't see how this statute survives.

  • My understanding is that the Court limited this to cases where the speaker was fraudulently obtaining a benefit, such as voting or employment. I would agree this couldn't be sustained if it was just general false speech. Oct 31 '18 at 23:52

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