Supreme Court to hear arguments on whether a lie is protected speech

Posted Feb. 19, 2012, at 3:40 p.m.

WASHINGTON — Fake hero Xavier Alvarez lied to his fellow Californians.

He never rescued an American ambassador. He was never a Marine. Most definitely, contrary to what he told a Southern California audience, Alvarez was never awarded the Medal of Honor.

He lied, until he was caught. Now, the Supreme Court must decide whether the First Amendment protects Alvarez and other wannabes from prosecution. The consequences could stretch well beyond what lawmakers and veterans call stolen valor.

“If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional 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,” Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals warned in a ruling that overturned Alvarez’s conviction under the Stolen Valor Act, which criminalizes false claims to military honors.

But Congress, the Obama administration and veterans organizations all consider 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.

In oral arguments Wednesday, the Supreme Court will start sorting this all out.

A former elected board member of the Three Valleys Water District in Claremont, Calif., Alvarez spoke of his spurious Marine exploits in a September 2007 hearing. 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 D. Libby acknowledged. “He lied when he claimed to be married to a Mexican starlet whose appearance in public caused paparazzi to swoon.”

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

The Stolen Valor Act imposes prison sentences of up to six months on those who “falsely represent” that they have received any military “decoration or medal.” For certain elite medals, the penalty increases to a year in prison.

Backed by politically powerful veterans organizations, the legislation had raced through Congress in 2006 without hearings. The House debated it for about 20 minutes.

“These frauds and these phonies have diminished the meaning and the honor of the recognitions received by our military heroes,” bill author Rep. John Salazar, D-Colo., declared during the brief House debate.

Subsequently, federal charges were filed in 2008 against Rick Strandlof, a Colorado resident who raised funds while falsely claiming to be a wounded Marine with a metal plate in his head.

“Strandlof stated that he did not wear his Purple Heart medal or his Silver Star medal because it would appear egotistical,” FBI Special Agent Gregg Slater declared in a 2009 affidavit filed in federal court.

The 10th U.S. Circuit Court of Appeals upheld the federal law. In California, the 9th Circuit struck it down.

This split means residents of a 10th Circuit state like Kansas and Colorado face Stolen Valor Act prosecution while residents of a 9th Circuit state like Washington, Idaho and California do not. The Supreme Court picks cases to resolve such circuit splits.

Constitutionally, the question comes down to whether false heroism claims resemble the other types of speech considered unworthy of First Amendment protection, such as obscenity or defamation. Some further liken the Stolen Valor Act to laws making it illegal to impersonate a police officer.

“When lawmakers think that a particular kind of lie is harmful enough, they should generally be free to prohibit it,” wrote Eugene Volokh and James Weinstein, professors at UCLA Law School.

Other federal laws, not being challenged, already prohibit wearing unauthorized military uniforms. In 2009, for instance, Palm Springs, Calif., resident Steven D. Burton was charged for wearing a medal-bedecked Marine uniform. Burton never served in the military.

Burton was not charged under the Stolen Valor Act. He was instead prosecuted for what he wore, not what he said; he paid a $250 fine and was placed on probation, court records show.

“For years, he has tried to get approval from his father,” Burton’s mother wrote in a November 2009 pre-sentencing letter filed in court. “Low self-esteem and not thinking you are worth anything causes problems with a person.”

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