At issue in the case is to what extent the government may ban and punish false statements of fact concerning someone’s military service.
In 2006, Congress passed the Stolen Valor Act, which makes it a crime to falsely represent, verbally or in writing, to have been awarded a military decoration. Offenders face up to a year in prison for falsely claiming receipt of the military’s most significant honors, including the Medal of Honor.
The issue arose in the case of an elected member of a water district board in southern California. In 2007, board member Xavier Alvarez identified himself at a public meeting as a retired US Marine who had been wounded in combat many times and had even received the Congressional Medal of Honor.
“I’m a retired Marine of 25 years. I retired in the year 2001,” Mr. Alvarez said at a board meeting. “Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”
None of Alvarez’s claims was true, except his last claim that he was still around. He never served in the Marine Corps or any branch of the military, was never wounded in combat, and has never received a medal of any kind, let alone the nation’s highest military award – the Medal of Honor.
After FBI agents obtained a tape recording of the meeting, federal prosecutors charged Alvarez with two counts of violating the Stolen Valor Act.
Alvarez’s lawyer asked a federal judge to dismiss the charges as a violation of the First Amendment. The judge upheld the charges, ruling that the First Amendment does not protect “knowingly false statements.”
The act is narrowly written to ban only “deliberately false statements concerning a very specific subject matter,” the judge said.
Alvarez pleaded guilty, but reserved the right to appeal the First Amendment issue. He was sentenced to three years' probation and ordered to pay a $5,000 fine.
A panel of the Ninth US Circuit Court of Appeals reversed the conviction in a 2-to-1 vote and declared the Stolen Valor Act unconstitutional.
The appeals court’s two-judge majority, Judges Milan Smith and Thomas Nelson, said they were concerned that the act might open the door to broader government restrictions on lying.
“We cannot adopt the government’s approach as the general rule for false factual speech without turning customary First Amendment analysis on its head,” Judge Smith wrote.
He said the government’s approach was inconsistent with maintenance of a robust and uninhibited marketplace of ideas.
“The right to speak and write whatever one chooses – including to some degree, worthless, offensive, and demonstrable untruths – without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment,” Smith wrote.
Chief Judge Alex Kozinski, in a comment about the case, said it raised the specter of government censorship by “the truth police.” He noted that “white lies, exaggerations, and deceptions … are an integral part of human intercourse."
In a dissenting opinion, Judge Jay Bybee said that as a general rule the Supreme Court has not extended free speech protections to false statements of fact. He noted there are some exceptions to the general rule but that prohibiting lies about the military honors one has received does not inhibit or deter protected forms of expression.
Very few individuals are likely to mistakenly claim to have won the Congressional Medal of Honor, he said.
“The majority believes that when the court has said that ‘false statements of fact’ are unprotected by the First Amendment, what the court actually meant was that defamation is unprotected by the First Amendment,” Judge Bybee wrote. He said the majority’s approach inverts the high court’s First Amendment jurisprudence.
“All things considered, Alvarez’s self-introduction was neither a slip of the tongue nor a theatrical performance; it was simply a lie,” Bybee said.
“Alvarez’s knowingly false statement is excluded from the limited spheres of protection carved out by the Supreme Court,” he wrote. “It is therefore not entitled to constitutional protection.”
The Ninth Circuit majority was not persuaded. “If the act is constitutional under the analysis proffered by Judge Bybee, then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway,” Judge Smith wrote in the majority opinion.
“The sad fact is, most people lie about some aspects of their lives from time to time,” Smith added.
The case is US v. Alvarez (11-210). It will likely be heard by the high court next year with a decision announced by late June.