When Xavier Alvarez stood up and introduced himself at a local water district meeting in July 2007, he had no idea he was about to commit a federal crime.
“I’m a retired Marine of 25 years,” he told the other board members in Pomona, Calif. “I retired 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.”
In most social situations, such statements might elicit interested nods, admiring smiles, and perhaps heart-felt thanks for his brave service to the nation.
But it turns out Mr. Alvarez never served a day in the US military, had never been wounded, and – most important – was never awarded the Medal of Honor.
After his false claim was exposed, the Federal Bureau of Investigation showed up. Alvarez was soon indicted for allegedly violating the Stolen Valor Act of 2005, a law that makes it a federal crime to falsely claim to have been awarded a military medal.
His lawyer attacked the indictment as a violation of the First Amendment, arguing that Americans have a free-speech right to make false and outrageous claims about themselves without facing criminal prosecution from a government truth squad.
A federal judge upheld the indictment, but a US appeals court panel reversed.
On Wednesday, Alvarez’s case arrives at the US Supreme Court, where the justices are being asked to decide whether the Stolen Valor Act is an unconstitutional regulation of free speech or an acceptable effort by the government to punish an alleged liar.
The high court has never directly addressed the issue of lying about military awards, and it is not clear how the justices may decide it.
The Supreme Court has recognized a number of categories of speech that are unworthy of full First Amendment protection. They include obscenity, libel and defamation, incitement to imminent harm, and fraud. In each of those areas the underlying speech causes a concrete injury.
Critics of the Stolen Valor Act say it requires no underlying injury. Any false statement claiming receipt of a medal may be punished. These critics suggest the best remedy for such false statements is not criminal punishment but more speech, particularly truthful speech to expose the lie.
The Obama administration is urging the court to uphold the restriction as a valid regulation of a discrete kind of false speech that lacks significant constitutional value.
Alvarez counters that the court has never before declared that such false statements are unworthy of constitutional protection. His lawyer says the government’s position marks a radical departure from free speech principles that could lead to sanctions against those who exaggerate, use hyperbole, or engage in satire.
“For good or bad, right or wrong, everyone lies. Xavier Alvarez is no exception. He told a bunch of whoppers,” wrote Alvarez’s lawyer, Deputy Federal Public Defender Jonathan Libby, in his brief to the court.
“Exaggerated anecdotes, barroom braggadocio, and cocktail party puffery have always been thought to be beyond the realm of government reach and to pass without fear of criminal punishment,” Mr. Libby said.
The US Solicitor General’s Office disagrees, arguing that the Stolen Valor Act is aimed at achieving an important government objective and that it is narrowly focused to achieve that objective.
“The government employs military honors to convey a message to the public that the recipient has been endorsed by the government as part of a select group,” Solicitor General Donald Verrilli wrote in his brief to the court. “The aggregate effect of false claims undermines that purpose … by diluting the medals’ message of prestige and honor.”
The law seeks to punish only those who knowingly make a false claim of having been awarded a medal, Mr. Verrilli said. A person is unlikely to make such a claim out of confusion or by mistake, he said.
“Content-based restrictions on false factual statements are consistent with the First Amendment if they are supported by a strong government interest and provide adequate ‘breathing space’ for fully protected speech,” Verrilli’s brief said.
Alvarez’s lawyer, Mr. Libby, openly admits his client is a liar. But he says Alvarez was pilloried in his community as an “idiot” and a “jerk” after his false statements were exposed.
Libby says Americans lie all the time in social situations and that if his client loses his case, the government may soon be investigating the veracity of a broader range of facetious statements.
“Xavier Alvarez lied. He lied when he claimed to have played professional hockey for the Detroit Red Wings. He lied when he claimed to be married to a Mexican starlet whose appearance in public caused paparazzi to swoon. He lied when he claimed to be an engineer. He lied when he claimed to have rescued the American ambassador during the Iranian hostage crisis, and when he said that he was shot going back to grab the American flag,” Libby said in his brief.
What’s the harm, Libby asked in his brief. There is no evidence that anyone relied on Alvarez’s false claims about hockey or military heroics.
“The government’s interest in protecting the reputation of military medals is legitimate, but not compelling,” Libby said. “False claimants cannot tarnish the reputation of medal winners.”
“The government seeks to create a new test – completely unmoored from this court’s precedents,” Libby said.
“Falsehoods are valuable for innumerable reasons: in refining truth, in expressing personal autonomy, and in greasing the wheels of social interaction,” Libby said. “More than that, there is a realm of harmless prattle and puffery generally considered beyond government control.”