39 Preview U.S. Sup. Ct. Cas. 182 (2011-2012)
Can Congress Make It a Crime to Lie about Military Medals or Is the First Amendment a Get out of Jail Fee Speech Card (11-210)

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      Can Congress Make It a Crime to Lie About Military Medals

  or Is the First Amendment a Get Out of Jail Free Speech Card?


CASE AT A GLANCE
Admittedly, Xavier Alvarez is a liar. He bragged publicly that he had been wounded many times and had
been awarded the Congressional Medal of Honor. He never even served in the Armed Forces. The Stolen
Valor Act, 18 U.S.C.  704(b), makes it a federal crime to falsely claim to be a decorated military hero.
Alvarez pleaded guilty to violating the act on the condition that he could appeal its constitutionality. The
Supreme Court will decide if this kind of liar has a First Amendment right to that kind of a lie.


             United States v. Alvarez
                Docket No. 11-210

      Argument Date: February 22, 2012
             From: The Ninth Circuit

                 by Thomas E. Baker
Florida International University College of Law, Miami, FL


ISSUE
Is the Stolen Valor Act-which makes it a crime for anyone to falsely
represent himself or herself, verbally or in writing, to have been
awarded any decoration or medal authorized by Congress for the
Armed Forces of the United States-constitutional on its face under
the Free Speech Clause of the First Amendment?

FACTS
In 2007, Xavier Alvarez was elected to the Board of Directors of the
Three Valleys Water District located outside Los Angeles. See Three
Valleys Municipal Water District, httpIAvww.threevalleys.com. At a
July 2007 meeting, Alvarez introduced himself for the record: I'm a
retired marine of 25 years. I retired in the year 2001. Back in 1987, 1
was awarded the Congressional Medal of Honor. I got wounded many
times by the same guy. I'm still around. The only true statement was
that he was still around. The rest were all lies. He never even served
in the Armed Forces. He was, however, a veteran liar. Some of his past
misrepresentations included winning the Medal of Honor during the
Iranian hostage crisis for rescuing the American ambassador and be-
ing wounded when he went back to save the American flag; being shot
down piloting a rescue helicopter in Vietnam; playing hockey for the
Detroit Red Wings; being fired as a police officer for using excessive
force against some bad guys who had it coming; and secretly marrying
a Mexican starlet. In short, as the district judge concluded, Alvarez
concocted a make-believe world where [he] just make[s] up stories
all the time. It is almost as if his picture should appear next to the
word liar in the dictionary. In fact, the caption under his picture in
the all-the-news-that's-fit-to-print newspaper, The New York Times,
accurately and ironically reads simply: Xavier Alvarez, not a marine,
not a Medal of Honor winner. Adam Liptak, A False Claim of Valor
and a Cry of Free Speech, The New York Times, March 18, 2008.


His lies eventually caught up with him. Responding to complaints,
the FBI investigated and obtained a recording of the July 2007 water
district board meeting. Alvarez was indicted on two counts of violat-
ing the Stolen Valor Act, 18 U.S.C.  704(b). Alvarez did achieve the
distinction of being the first person charged and convicted under that
statute, enacted in 2006, which provides in part:

     Whoever falsely represents himself or herself, verbally [sic]
     or in writing, to have been awarded any decoration or medal
     authorized by Congress for the Armed Forces of the United
     States, any of the service medals or badges awarded to the
     members of such forces, the ribbon, button, or rosette of any
     such badge, decoration, or medal, or any colorable imitation
     of such item shall be fined under this title, imprisoned not
     more than six months, or both.

Reserving his right to appeal the constitutionality of the statute, Alva-
rez pleaded guilty in the U.S. District Court for the Central District of
California and consequently was sentenced to three years' probation,
a $5,000 fine, and community service. He took his appeal to the U.S.
Court of Appeals for the Ninth Circuit, which reversed his conviction
and struck down the Stolen Valor Act by a 2-1 vote. United States v.
Alvarez, 617 E 3d 1198 (9th Cir. 2010). The majority held that the stat-
ute violated the First Amendment by penalizing Alvarez for the speech
crime of lying. The dissenting judge argued that the statute could
be narrowly interpreted and constitutionally applied to Alvarez. The
government's petition for rehearing en banc was denied with a set of
published concurring and dissenting opinions that quarreled over the
proper legal analysis and the appropriate outcome. United States v.
Alvarez, 638 E 3d 666 (9th Cir. 2011) (en banc). The Supreme Court
granted the government's petition for a writ of certiorari. United
States v. Alvarez, 132 S. Ct. 457 (2011).


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