Last month, the U.S. Supreme Court surprised a lot of observers by striking down the Stolen Valor Act, a federal law that had criminalized false claims about military honors. Part of the surprise was the high court upheld a ruling from the Ninth Circuit, despite a dissent from Judge Jay Bybee, who usually sees eye-to-eye with the high court.
On Friday it sounded as if the surprise still hasn't quite worn off on Bybee. In Brown v. Electronic Arts, a lawyer for football legend Jim Brown was arguing that the video game maker was misleading buyers by using Brown's likeness in the game without authorization.
"We don't think anyone has a First Amendment right to speak in a confusing manner," Ronald Katz told a panel of judges including Bybee.
"Although the court just recently told us that you can lie," Bybee said. "So the likelihood of confusion seems like maybe a possibility under the First Amendment -- if you can lie about things."
"I haven't studied that Medal of Honor case," Katz told him. "But that was a disturbing case."
It's safe to say Katz won't get any argument from Bybee on that point.