Alvarez was one of the first people prosecuted under the federal Stolen Valor Act, which makes it a crime to falsely claim to have been awarded military honors and decorations. It imposes increased penalties for lying about certain awards, including the Medal of Honor.
But Alvarez’s lawyers — they are among those who make no excuses for his extensive lies — convinced a lower court that his untruths were protected by the First Amendment’s guarantee of free speech. And the Supreme Court on Wednesday will consider whether the Stolen Valor Act is unconstitutional.
The case has generated huge interest and divided First Amendment advocates, including the media, and veterans groups, who see the act as a necessary weapon to discourage what appears to a boomlet of self-aggrandizers.
According to a brief filed by the Veterans of Foreign Wars and two dozen veterans groups: “Pretenders have included a U.S. Attorney, member of Congress, ambassador, judge, Pulitzer Prize-winning historian and bestselling author, manager of a Major League Baseball team, Navy captain, police chief, top executive at a world-famous research laboratory, director of state veterans programs, university administrator, pastor, candidate for countywide office, mayor, physician, and more than one police officer.”
“This case is about theft, not lying in general,” wrote D.C. lawyer Michael T. Morley in the brief. “Alvarez, and others like him, have misappropriated for their own benefit an unearned share of the two centuries’ worth of goodwill and prestige associated with American military awards.”
But the U.S. Court of Appeals for the 9th Circuit in San Francisco agreed with Alvarez that the law did not meet the high standard courts must apply to attempts to restrict speech.
“Saints may always tell the truth, but for mortals living means lying,” Chief Judge Alex Kozinski wrote in response to the government’s request that the decision be reconsidered.
“Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship” and set up the government as “truth police” with the power to punish.
Other judges have seen it differently. The U.S. Court of Appeals for the 10th Circuit, in a separate Stolen Valor case, upheld the law’s constitutionality.
“As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech,” U.S. Circuit Judge Timothy M. Tymkovich wrote for another divided panel.