August 19, 2010 - 7:07 am
Three years ago Congress passed a law making it a crime to falsely claim to have received a medal from the U.S. military, commonly called Stolen Valor. This week the 9th U.S. Circuit Court of Appeals threw out a California man’s conviction under the law, saying it is an unconstitutional abridgement of the First Amendment right to free speech.
Xavier Alvarez, a water district board member in Pomona, Calif., introduced himself at a public meeting in 2007 by identifying himself as a retired Marine who had received the Medal of Honor.
“I’m a retired marine of 25 years,” the court ruling quotes Alvarez. “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.”
The court opinion observed Alvarez never served a single day in any branch of the military and the only truthful comment was “I’m still around.”
The ruling came from a three-judge panel with one dissenter, Nevada’s Jay Bybee.
The two judges in the majority dismissed Bybee’s dissent by saying, “Indeed, 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. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.”
(Don’t tell mom I’m a guitar player, she thinks I’m just in jail.)
For his part Bybee sites numerous quotes from various Supreme Court rulings saying falsity is unprotected under the First Amendment. The problem is most the cases involve defamation, false claims made about someone else.
Bybee’s argument in dissent includes, “The hubris of Alvarez’s claim to have received the Congressional Medal of Honor in 1987 may not be apparent to ordinary Americans, and it may not have been obvious at the joint meeting of the water districts, but it would not have been lost on the men and women who are serving or have served in our armed forces. By his statement, Alvarez claimed status in a most select group: American servicemen who lived to receive the Congressional Medal of Honor. No living soldier has received the Congressional Medal of Honor since the Vietnam War. … Alvarez’s statements dishonor every Congressional Medal of Honor winner, every service member who has been decorated in any away, and every American now serving. Such ‘insolence . . . [may] be . . . punished …’”
If that’s the case, instead of a criminal law, perhaps the surviving Medal of Honor winners should sue for defamation. But there aren’t very many of them.
Criminalizing defamation of a particular class is dangerous ground, comparable to banning flag burning or where one can build a mosque.