Stolen Valor Act .... un-Constitutional

[Smith]

Only in San Fran can up be down.

Court of Appeals / Stolen Valor Act / A federal law against lying?

In 2005, Rep. John Salazar, D-Colo., sponsored the Stolen Valor Act that made it a federal crime to lie about receiving medals or honors from the military. Breaking the law could lead to a fine and a sentence of six months. Lying about being awarded the Medal of Honor, a Purple Heart or other top honors could carry a prison sentence of up to one year.

In 2006, the bill passed easily through the House and unanimously in the Senate.

Last week, however, the Stolen Valor Act ran smack into the Ninth U.S. Circuit Court of Appeals - insert your favorite Ninth Circuit joke here.

A three-judge panel in San Francisco ruled that the law violates the First Amendment and is unconstitutional. Consider this tale the latest example of how impossible it is to get a simple law enacted, prosecuted and upheld in the American criminal justice system.

The beneficiary of the court's ruling: One Xavier Alvarez, the first known man to be charged and convicted for breaking the new law. In 2007, as a newly elected Three Valleys Municipal Water District Board member, Alvarez announced publicly, "I'm a retired Marine of 25 years. 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."

As U.S. Court of Appeals Judge Milan D. Smith noted, Alvarez never served a day in his life in the military, never was awarded a medal and has a rich history of telling lies about himself - also having claimed falsely to have played pro hockey, to have worked as a cop and to have been married secretly to a Mexican starlet.

Alvarez is now serving a five-year sentence in state prison for misappropriating public funds by signing up his ex-wife for health insurance benefits.

Before the state conviction, Alvarez pleaded guilty to one count of violating the Stolen Valor Act and was sentenced to community service and probation and a $5,000 fine. Unfortunately for the taxpayers, Alvarez retained the right to appeal the law. A spokesman for the California Central District U.S. Attorney explained that conditional plea agreements are not unusual for convictions with "novel legal issues."

The approach paid off. As Smith wrote, if the courts upheld the law, "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."

It was of special concern to the court that the Stolen Valor Act imposes a criminal penalty "for the mere utterance or writing of what is, or may be perceived as, a false statement of fact." The law isn't limited, for example, to lies on job applications, but lies anywhere. For Americans wary of the government acting as thought police, Smith laid out a compelling argument. But in so doing, he essentially held that lying about yourself is a free-speech right.

Judge Jay Bybee wrote a spirited dissenting opinion in which he noted, "I can see no value in false, self-aggrandizing statements by public servants ... If the Stolen Valor Act 'chills' false autobiographical claims by public officials such as Alvarez, our public discourse will not be the worse for the loss."

"From a nonlegal perspective, I don't necessary disagree with that," Alvarez attorney Jonathan Libby told me. But as an attorney, Libby said he believes the new law "is beyond the Constitution."

George Washington University law Professor Jonathan Turley made a similar argument in a piece for USA Today. Turley didn't disagree with those who would call Alvarez and others "valor thieves" and "semper frauds." He wrote, "We can all agree that false claims of military honors are repugnant and worthy of social condemnation. These men deserve to be social pariahs, but there remains a serious question over whether they deserve to be criminal defendants."

I should point out that if Alvarez had lied about his military record for financial gain, then other laws would have taken care of him nicely.

And: Smith, Bybee and Judge Thomas Nelson were appointed by Republican presidents, so you could call this issue an honest, if spirited, disagreement inside the right.

As Libby noted, "The point of the case was whether Congress, consistent with the First Amendment, can pass a law determining what lies are criminal and what lies are not."

For his part, Bybee argued that knowingly false statements deserve no First Amendment protection. But in this complicated age, nothing is simple. Think about it. I don't think this lying, cheating poseur would have been caught if he hadn't won an election.

E-mail Debra J. Saunders at dsaunders@sfchronicle.com.

This article appeared on page E - 9 of the San Francisco Chronicle

Read more: Court of Appeals / Stolen Valor Act / A federal law against lying?

[Guest 6.8 AR]

Only in the 9th would this happen.

[eapking]

So lying is now protected under the 1A. The 9th circuit court is nuts (as always).

[Guest clownsdd]

No problem, they usually stick out like a sore thumb.

[G27]

As much as I hate it, how does it not fall under freedom of speech?

Yah, it pisses me off, just like those who burn the flag, but if freedom of speech exists, it means we're going to have to hear stuff we don't like. Liberty is a double-edged sword...

Based on a cursory reading of this case, I think the 9th Circuit got it right. I hate it, but I think it's the right decision.

[Ebow1]

I'm sorry but I think lying about military service and or medals by political candidates should be a crime. I think one should expect that to be a politician they must be viewed in a more scrutinizing light then that of the average citizen, especially when making such statements that would so heavily influence a decision to vote for them. As despicable as it is for anyone to lie about military service, I see no major harm coming from an average citizen who tells drunk chicks that he fought in such and such war so he can get laid when he in fact did not, but when a politician does it it becomes a tool to get votes, and it corrupts the democratic process of electing leaders in the first place.

[eapking]

I'm sorry but I think lying about military service and or medals by political candidates should be a crime. I think one should expect that to be a politician they must be viewed in a more scrutinizing light then that of the average citizen, especially when making such statements that would so heavily influence a decision to vote for them. As despicable as it is for anyone to lie about military service, I see no major harm coming from an average citizen who tells drunk chicks that he fought in such and such war so he can get laid when he in fact did not, but when a politician does it it becomes a tool to get votes, and it corrupts the democratic process of electing leaders in the first place.

Exactly. Lies, when they contribute to some kind of gain: employment, votes, etc. should not be protected under the 1A.

[Oh Shoot]

Exactly. Lies, when they contribute to some kind of gain: employment, votes, etc. should not be protected under the 1A.

What about for snatch? (can't say "p***y")

- OS

[Smith]

If they uphold this then perjury has to be thrown out, lying to congress is out, impersonating an officer is out, fraud in general is out. This is not simple lying. It is falsely identifying oneself as a government agent to gain unwarranted benefit. That is simply known as fraud. Are they going to throw out all fraud law? I doubt it. This is a stupid political jab at the military that will add to their ridicule. 1a has nothing to do with this.

[Guest Bonedaddy]

As much as I hate it, how does it not fall under freedom of speech?

Yah, it pisses me off, just like those who burn the flag, but if freedom of speech exists, it means we're going to have to hear stuff we don't like. Liberty is a double-edged sword...

Based on a cursory reading of this case, I think the 9th Circuit got it right. I hate it, but I think it's the right decision.

I hate it too but I have to agree with ya here. I don't need more ways for the gubbernut idiots to pry in my life and control who I am even if it pisses off those who fought for my rights and freedoms. The 1st amendment is one of those many died for. Like they said, there are others laws to take care of him by if his lying became a drain on society. Most liars are figured out pretty quick and shunned. We'll just have to get over it and forget his ass.

[Oh Shoot]

If they uphold this then perjury has to be thrown out, lying to congress is out, impersonating an officer is out, fraud in general is out. This is not simple lying. It is falsely identifying oneself as a government agent to gain unwarranted benefit. That is simply known as fraud. Are they going to throw out all fraud law? I doubt it. This is a stupid political jab at the military that will add to their ridicule. 1a has nothing to do with this.

Well, to be fair, there ARE laws about lying under oath in court or to Congress, and impersonating a LEO.

Ask Roger Clemens or Bill Clinton about the lying under oath part.

Various types of fraud of course are crimes, too.

So let's not paint too broad a stroke on this.

I agree though, that it is most disturbing, and I do disagree with the ruling.

- OS

[TNRobocop]

Ninth Circus.

Big surprise.

[Dolomite_supafly]

Lying about your service to the nation, whether military or civil service, should be against the law regardless of who you are and for what reason. The wearing of decorations and/or the uniform with military decorations or insignias should be illegal if you have not been awarded it. Additionally, even if you were in the military it should be illegal to make a claim of being something you are not. I have more respect for the support troops that ensure the HSLD are able to perform their mission. There is absolutely nothing wrong with being a cook or truck driver because without those people we couldn't fight our way out of a wet paperbag.

When people make these false claims of military service or awards it only serves to cheapen the awards that are given to our true heroes. These true heroes are the ones who have and are currently fighting for our freedom of speech every day. It would only make sense to protect those that are safe guarding that right.

I understand and agree that the freedom of speech is the most important freedom but lying about your service to the nation should not be protected under that freedom. The false claims made by these phonies do impact the lives of most Americans in several ways. It costs money to investigate and ultimately disprove their false claims. It costs money to pay for the benefits that the phonies are not entitled to. And when they do receive these benefits it takes away from the funding in a time in which it is so deperately needed by some. It also consumes time that could be used to ensure our heroes are taken care of in their time of need. We all pay for these false claims with our taxes and as such every single American should be livid about the fact it is now being legalized under the guise of freedom of speech.

I really wish that laws could be written to protect those who protect us. And make the punishments so severe that people would think twice about making those claims. I would love to see one specific punishment. Make those who make false claims of military service actually spend time in the service. That way they can actually see how hard it really is.

Dolomite

[Ebow1]

"Make those who make false claims of military service actually spend time in the service"

There's a much easier way to make his claims about being wounded be true.

[Smith]

Well, to be fair, there ARE laws about lying under oath in court or to Congress, and impersonating a LEO.

Ask Roger Clemens or Bill Clinton about the lying under oath part.

Various types of fraud of course are crimes, too.

So let's not paint too broad a stroke on this.

I agree though, that it is most disturbing, and I do disagree with the ruling.

- OS

Not sure I see your point. There was a law against impersonating military service, which is what they ruled against.

[Mike]

I really wish that laws could be written to protect those who protect us. And make the punishments so severe that people would think twice about making those claims. I would love to see one specific punishment. Make those who make false claims of military service actually spend time in the service. That way they can actually see how hard it really is.

This would be a disservice and an insult to our men and women who took it upon themselves voluntarily to join.

[E4 No More]

Makes you wonder how it's can be unlawful to lie to congress or a federal agent?

[Oh Shoot]

Not sure I see your point. There was a law against impersonating military service, which is what they ruled against.

You are right, but that hasn't invalidated the other laws I mentioned.

For example, if the guy had lied about his military service under oath in court or in congressional hearing, he could be prosecuted.

And isn't most everything that goes through the 9th kicked on upstairs? Surely it isn't over.

- OS

[USMCJG]

As much as I hate it, how does it not fall under freedom of speech?

Yah, it pisses me off, just like those who burn the flag, but if freedom of speech exists, it means we're going to have to hear stuff we don't like. Liberty is a double-edged sword...

Based on a cursory reading of this case, I think the 9th Circuit got it right. I hate it, but I think it's the right decision.

I have to agree. I think we should just get rid of the criminal punishment, which is the sticking point of this law. And instead make it LEGAL to kick someone who lies about their military service square in the nuts. We need more legal things and less illegal things. Let's make it so anyone is free to lie about military service as long as they accept that I am free to punt their berries clear inside their abdomen if I know they're lying. Problem solved. The same solution should work with flag burners too. Edited August 31, 2010 by USMCJG