Before this federal statute was signed into law (oddly on December 20, 2006), holding yourself out as a winner of this nation’s highest military honor – receipt of the Congressional Medal of Honor – was the main “horrible” of then-existing federal “truth in military service” law. This expansion of the law makes false claims of military service a federal misdemeanor that can result in a fine and up to a year in jail: “The purpose of the Act is to strengthen the provisions of federal law (18 U.S.C. § 704) by broadening its scope and strengthening penalties. Specific new provisions in the Act include: granting more authority to Federal law enforcement officers, extending scope beyond the Medal of Honor; broadening the law to cover false claims whereas previously an overt act had to be committed; covering, mailing and shipping of medals; and protecting the reputation and meaning of military heroism medals. Under the act, it is illegal for unauthorized persons to wear, buy, sell, barter, trade or manufacture ‘any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces.’” Wikipedia.
Ooooh, OK, that sounds reasonable… more like an anti-fraud provision. Enter Xavier Alvarez (aka Javier Alvarez). It seems that Mr. Alvarez, who had been elected to a water district board seat, introduced himself to the directors of another water district, at a joint meeting, by saying, “I’m a retired Marine of 25 years. I retired back in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” As the court (United States vs. Alvarez, an appeal heard before the 9th Circuit) noted, “With the exception of ‘I’m still around,’ Mr. Alvarez’s statement was a series of bizarre lies…” And well, after being charged with a violation of the Stolen Valor Act, Mr. Alvarez, who was already elected, took the position that absent a fraudulent gain, his mendacity was protected free speech under the First Amendment. The trial court agreed.
Well… er… there’s something to this, but holding yourself out as a wounded Marine with a Medal of Honor seems… er… so wrong! And yet, as 9th Circuit Chief Justice, Alex Kozinski, notes, “If all untruthful speech is unprotected . . . we could all be made into criminals, depending on which lies those making the laws find offensive… And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false… The First Amendment does not tolerate giving the government such power.” Whew…
Kozinski goes on, as the March 27th Washington Post summarizes, to talk about lying and its role in our daily lives: “‘We lie to protect our privacy (‘No, I don’t live around here’); to avoid hurt feelings (‘Friday is my study night’); to make others feel better (‘Gee, you’ve gotten skinny’); to avoid recriminations (‘I only lost $10 at poker’),’ Kozinski wrote recently in a case about an inveterate liar named Xavier Alvarez who, just to drive home the point, is also known as Javier Alvarez.
“Kozinski listed 28 other reasons we avoid the truth, including to ‘avoid a nudnick’ and to ‘defeat an objective (‘I’m allergic to latex’),’ and ending sweetly with ‘to maintain innocence (‘There are eight tiny reindeer on the rooftop’).’” Think about how the ban on lying would impact dating and marriage! “Yes, dear, that dress makes you look huge!”
But other justices on that appellate court had another view, according to the Post: “Judge Diarmuid O’Scannlain … said the decision to find the law unconstitutional ‘runs counter to nearly forty years of Supreme Court precedent’ in which the court ‘has steadfastly instructed that false statements of fact are not protected by the First Amendment.’” One justice found that Congressional power overrode any constitutional protection based on “social utility” of the lie. Judge Milan D. Smith Jr., who thought that the law really was unconstitutional, noted that the Supreme Court in its “1964’s New York Times Co. v. Sullivan made clear that ‘false speech is not subject to a blanket exemption from constitutional protection.’… He said the court has never included ‘false statements of fact’ to be among the classes of speech unprotected by the First Amendment. He noted that as recently as last year’s decision in United States v. Stevens, the court’s list of ‘well-defined’ unprotected speech included only ‘obscenity, defamation, fraud, incitement and speech integral to criminal conduct.’” The Post.
The case really was a decision to deny rehearing the matter “en banc” (before all the circuit court justices), and it does seem as if it is heading for the United States Supreme Court. Clearly there’s a line where speech cannot be protected (like yelling “fire” in a crowded theater to cause panic, when there is no fire), but it is useful to remind yourself that often cases that grab you viscerally often demand the most constitutional scrutiny… that’s what the constitution was intended to protect… or was it?
I’m Peter Dekom, and I wasn’t really wounded in a military skirmish!
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