Do lies about military honors deserve free-speech protection?

Originally published February 18, 2012 at 8:57 PM | Page modified February 18, 2012 at 9:37 PM

WASHINGTON — Xavier Alvarez is a liar and a scoundrel and has been called an idiot, a jerk and cretinous. All of these descriptions come in the briefs supporting his cause before the Supreme Court.

Alvarez, once a member of a California water-district board, earned such scorn by lying at a public meeting about being a war hero, specifically that he was awarded the Medal of Honor. But his lies did more than make him an outcast. They made him a criminal.

Alvarez was one of the first people prosecuted under the federal Stolen Valor Act, which makes it a crime to falsely claim to have been awarded military honors and decorations. It imposes increased penalties for lying about certain awards, including the Medal of Honor.

But Alvarez's lawyers — they are among those who make no excuses for his extensive lies — convinced a lower court that his untruths were protected by the First Amendment's guarantee of free speech. The Supreme Court on Wednesday will consider whether the Stolen Valor Act, signed into law in 2006, is unconstitutional.

Alvarez, a former elected board member of the Three Valleys Water District in Claremont, Calif., lied a lot. He said he rescued a U.S. ambassador. He didn't. He said he had been a Marine and expounded on his supposed Marine exploits in a September 2007 public hearing. He never served in the military, and there were no exploits. And, contrary to what he told his audience, he was never awarded the Medal of Honor.

Even his own lawyer admits Alvarez's sometimes tenuous hold on the truth. "He lied when he claimed to have played professional hockey for the Detroit Red Wings," federal public defender Jonathan Libby acknowledged. "He lied when he claimed to be married to a Mexican starlet whose appearance in public caused paparazzi to swoon."

Unlike those falsehoods, though, Alvarez's claim to military honors ran afoul of federal law.

The case has generated huge interest and divided First Amendment advocates, including the media, and veterans groups, which see the law as a necessary weapon to discourage what appears to a boomlet of self-aggrandizers.

According to a brief filed by the Veterans of Foreign Wars (VFW) and two dozen veterans groups: "Pretenders have included a U.S. attorney, member of Congress, ambassador, judge, Pulitzer Prize-winning historian and best-selling author, manager of a Major League Baseball team, Navy captain, police chief, top executive at a world-famous research laboratory, director of state veterans programs, university administrator, pastor, candidate for countywide office, mayor, physician, and more than one police officer."

Congress, the Obama administration and veterans organizations all consider such false military claims uniquely harmful. Just ask George Washington, they say.

"Should any who are not entitled to the honors, have the insolence to assume the badges of them, they shall be severely punished," Washington stated in a 1782 military order, according to a legal brief filed by the American Legion.

"This case is about theft, not lying in general," District of Columbia lawyer Michael Morley wrote in one brief. "Alvarez, and others like him, have misappropriated for their own benefit an unearned share of the two centuries' worth of goodwill and prestige associated with American military awards."

But the 9th U.S. Circuit Court of Appeals in San Francisco agreed with Alvarez that the law did not meet the high standard courts must apply to attempts to restrict speech.

"Saints may always tell the truth, but for mortals living means lying," Chief Judge Alex Kozinski wrote in response to the government's request that the decision be reconsidered.

In the ruling that overturned Alvarez's conviction, Kozinski warned: "If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the ... Medal of Honor, but also the JDater who falsely claims he's Jewish or the dentist who assures you it won't hurt a bit."

"Without the robust protections of the First Amendment ... exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship" and set up the government as "truth police" with the power to punish.

Other judges have seen it differently. The U.S. Court of Appeals for the 10th Circuit in Denver upheld the law's constitutionality in a separate Stolen Valor case.

"As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech," U.S. Circuit Judge Timothy Tymkovich wrote for the panel.

He said there was no reason to believe that upholding a law criminalizing false claims about receiving military honors would lead to a "slippery slope where Congress could criminalize an appallingly wide swath of ironic, dramatic, diplomatic and otherwise polite speech."

This split means residents of a 10th Circuit state such as Kansas and Colorado face Stolen Valor Act prosecution while residents of a 9th Circuit state such as Washington and California do not.

The conflicting court opinions are understandable; it is possible to find seemingly conflicting strains of speech protection in the Supreme Court's precedents, said David Hudson, a scholar at the First Amendment Center at Vanderbilt University in Nashville, Tenn. "I think this may be a very difficult one for the court," Hudson said.

On one hand, the court has held for years that "truth" may not be the standard for deciding whether speech is protected by the First Amendment. In 1964's landmark New York Times v. Sullivan, the court said "uninhibited, robust and wide-open debate" would be compromised if there was an exception for "any test of truth," especially one that put the "burden of proving truth on the speaker."

But the court also held later, in Gertz v. Welch, that "there is no constitutional value in false statements of facts."

Certain categories of speech, as Chief Justice John Roberts made clear last year, fall outside of First Amendment protection: obscenity, defamation, fraud, incitement and speech integral to criminal conduct.

The Roberts court has been reluctant to expand the list. In several recent high-profile First Amendment cases, the court struck down a law about depicting animal cruelty, upheld the rights of a controversial group that demonstrates at the funerals of those killed in military service and blocked a California law that attempted to outlaw the sale of violent video games to minors.

Solicitor General Donald Verrilli defends the valor law by saying speech of limited constitutional value can be restricted so long as the law provides "breathing space" for fully protected speech, referencing another Supreme Court precedent.

But the American Civil Liberties Union (ACLU) told the court that the law gives the government "sweeping power to control and censor public debate." And the Reporters Committee for Freedom of the Press and 23 news organizations, including The Washington Post, the McClatchy Co. and The Associated Press, filed a brief saying that upholding the law would reverse "the basic presumption against official oversight of expression." Better than criminalizing speech, the brief said, is to promote aggressive coverage of
those making the claims.

It cited a 2008 Chicago Tribune investigation that used military records "to unearth 84 bogus Medals of Honor, 119 Distinguished Service Crosses, 99 Navy Crosses, five Air Force Crosses and 96 Silver Stars listed in biographies in the reference book Who's Who."

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Do lies about military honors deserve free-speech protection?