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Stolen Valor Act gets hearing

WASHINGTON — The Supreme Court will decide whether telling a lie about yourself is a crime — if the lie claims military medals you didn’t earn.

The court said Monday it will rule on the constitutionality of a law making it a federal crime to claim falsely, either in writing or aloud, that one has been awarded the Medal of Honor, a Silver Star, Purple Heart or any other military medal.

The Stolen Valor Act, which passed Congress with overwhelming support in 2006, has been used only a few dozen times, but the underlying issue of false claims of military heroism has struck a chord in an era in which American soldiers are fighting two wars.

The justices have issued a series of rulings in recent terms in favor of free expression, striking down California’s violent video restrictions and a federal law involving cruelty to animals. The court upheld the right of protesters to picket military funerals with provocative, even offensive, messages.

The federal appeals court in California struck down the military medals law on free speech grounds, and appeals courts in Colorado, Georgia and Missouri are considering similar cases.

The Obama administration is arguing that the law “serves a crucial purpose in safeguarding the military honors system.”

The administration also contends that the law is reasonable because it only applies to instances in which the speaker intends to portray himself as a medal recipient.

Previous high court rulings have limited First Amendment protection for false statements, the government said.

The court almost always reviews lower court rulings that hold federal laws unconstitutional.

The case concerns the government’s prosecution of Xavier Alvarez of Pomona, Calif. Alvarez, a member of the local water district board, said at a public meeting in 2007 that he was a retired Marine who received the Medal of Honor, the nation’s highest military decoration. He had never served in the military.

He was indicted and pleaded guilty with the understanding that he would challenge the law’s constitutionality in his appeal. He was sentenced under the Stolen Valor Act to more than 400 hours of community service at a veterans hospital and fined $5,000.

A panel of the San Francisco-based 9th U.S. Circuit Court of Appeals voted 2-1 to strike down the law. The majority said there is no evidence that lies such as the one told by Alvarez harm anybody and no compelling reason to make a crime out of them.

In a dissent, Judge Jay Bybee said his colleagues should have followed previous Supreme Court rulings holding that false statements are not entitled to First Amendment protection.

The appeals court refused the government’s request to have the case heard again by a larger group of its judges. Chief Judge Alex Kozinski, agreeing with the majority, said people often tell lies about themselves in day-to-day social interactions. He said it would be “terrifying” if people could be prosecuted for merely telling lies. But seven appellate judges said they would have heard the case, suggesting they would have upheld Alvarez’s conviction.

Despite the 9th Circuit Court of Appeals decision on Alvarez, the court in late September rejected an appeal by an imprisoned Air Force veteran from Nevada, David M. Perelman, who challenged the constitutionality of a section of the Stolen Valor Act under which he was convicted.

Perelman, of Las Vegas, was sentenced in December to one year in prison after pleading guilty to theft of government funds, a felony, and unlawful wearing of a service medal, a misdemeanor. Perelman, a former Veterans Affairs employee, fraudulently obtained a Purple Heart medal, wore it in public and used it to obtain more than $180,000 in disability benefits.

A three-judge panel of the 9th Circuit Court of Appeals issued a unanimous opinion in Perelman’s case, concluding that wearing a military medal with an intent to deceive “is engaging in legitimately criminal conduct.”

Perelman was charged under a section of the Stolen Valor Act that makes it a crime for any unauthorized person to wear a service medal. Another section outlaws false claims, “verbally or in writing,” about the receipt of military medals. That section was the one the 9th Circuit Court of Appeals declared unconstitutional in the Alvarez case.

In rejecting arguments in Perelman’s appeal, Judge Susan Graber, who authored the 9th circuit panel’s unanimous opinion, wrote, “In our view, Congress intended to criminalize the unauthorized wearing of medals only when the wearer intends to deceive.”

Assistant Federal Public Defender Alina Shell, who represented Perelman, said that she believes the decision against him is contrary to the First Amendment and that she intends to pursue his case “as far as we need to vindicate the First Amendment rights.”

The case before the Supreme Court is U.S. v. Alvarez, 11-210.

Review-Journal writer Keith Rogers contributed to this report.

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