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.
He said there was no reason to believe that upholding a law criminalizing false claims about receiving military honors would lead to a “slippery slope where Congress could criminalize an appallingly wide swath of ironic, dramatic, diplomatic, and otherwise polite speech.”
The conflicting court opinions are understandable; it is possible to find seemingly conflicting strains of speech protection in the Supreme Court’s precedents, said David L. Hudson, a scholar at the First Amendment Center at Vanderbilt University.
“I think this may be a very difficult one for the court,” Hudson said.
On one hand, the court has held for years that “truth” may not be the standard for deciding whether speech is protected by the First Amendment. In 1964’s landmark
New York Times v. Sullivan
, the court said that “uninhibited, robust and wide-open debate” would be compromised if there was an exception for “any test of truth,” especially one that put the “burden of proving truth on the speaker.”
But the court also held later, in
Gertz v. Welch
, that “there is no constitutional value in false statements of facts.”
Certain categories of speech, as Chief Justice John G. Roberts Jr. made clear last year, fall outside of First Amendment protection: obscenity, defamation, fraud, incitement and speech integral to criminal conduct.
The Roberts Court has been reluctant to expand the list. In several recent high-profile First Amendment cases, the court struck down a broadly written law on depicting animal cruelty, upheld the rights of a controversial group that demonstrates at the funerals of those killed in military service and blocked a California law that attempted to outlaw the sale of violent video games to minors.
The VFW brief, arguing for the court to uphold the law disallowing knowing falsehoods, said Alvarez has a “nearly limitless “ range of free speech rights regarding military medals, including burning them, denouncing them, criticizing the government that awards them or even protesting that he should have received them.
Solicitor General Donald B. Verrilli Jr. defends the law by saying speech of limited constitutional value can be restricted so long as the law provides “breathing space” for fully protected speech, referencing another Supreme Court precedent.
But the American Civil Liberties Union told the court that the law gives the government “sweeping power to control and censor public debate.” And the Reporters Committee for Freedom of the Press and 23 news organizations, including The Washington Post, filed a brief saying that upholding the law would reverse “the basic presumption against official oversight of expression.”
Better than criminalizing speech, the brief said, is to promote aggressive coverage of those making the claims.
It cited a 2008 Chicago Tribune investigation that used military records “to unearth 84 bogus Medals of Honor, 119 Distinguished Service Crosses, 99 Navy Crosses, five Air Force Crosses and 96 Silver Stars listed in biographies in the reference book Who’s Who.”
The case is
U.S. v. Alvarez