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Lying about valor: Justices to debate free speech case

By Bill Mears, CNN Supreme Court Producer
updated 2:54 PM EST, Tue February 21, 2012
STORY HIGHLIGHTS
  • Alvarez claimed to have rescued the U.S. ambassador in Iran in 1979
  • He's currently in prison on separate fraud charges
  • The justices must decide if the First Amendment protects lies about military medals
  • A lower court ruled Alvarez's free speech rights were violated in the medal fraud prosecution

Washington (CNN) -- Xavier Alvarez ran for public office in California touting an impressive resume, including claims that he was a recipient of the highest military decoration awarded by the U.S. government, the Medal of Honor, for combat bravery.

He won the election but wound up in a heap of trouble -- eventually shamed and imprisoned on charges not related to the medal declaration. Now his cautionary tale is before the Supreme Court, in an unusual free speech fight over lies and honor. Arguments in the case begin Wednesday morning, with a ruling expected by the summer.

At issue is the constitutionality of the Stolen Valor Act, a 2006 congressional law making it a crime to "falsely represent himself or herself, verbally or in writing," as having been awarded military honors.

The justices will decide whether the First Amendment would normally protect such "knowing falsehoods," unless they fit within a few narrow exceptions -- such as defamation, monetary fraud, or perjury.

"The case really does present the question, when is it that lying can be a crime? How much harm does it have to do, and how much of a free speech right to lie is there?" said Thomas Goldstein, a prominent Washington attorney and publisher of SCOTUSblog.com. "Lots of times, cases get up to the Supreme Court precisely because the speech is really offensive and the justices end up saying: this is what it is to have a First Amendment in our country."

A divided federal appeals court had earlier ruled against the Obama administration, concluding there was inadequate "compelling governmental interest" when Congress passed the law.

Alvarez had won a seat on the Three Valleys Municipal Water District's board of directors in 2007, and at one of his first open meetings claimed to be a retired Marine who received the Medal of Honor in 1987. A photo shows a bow-tied Alvarez openly displaying dozens of military honors on a dress uniform.

"I got wounded many times by the same guy," Alvarez later declared in another public session, according to court records. "I'm still around." It was a recording of that claim that gave prosecutors the evidence needed to file charges.

Bob Kuhn is the president of the district's board of directors, serving the San Gabriel Valley of southern California, east of Los Angeles. He said he first heard about Alvarez a week before the municipal election, when the candidate claimed in a local newspaper to have saved a woman from "certain death" when she got stuck behind a refrigerator, while he was allegedly out campaigning door-to-door in the neighborhood.

"He wasn't shy about talking about his military career, wasn't shy about talking about how many times he'd been shot" in combat, Kuhn told CNN. "He exaggerated... no, he didn't exaggerate, he lied about the fact that he'd been in three helicopter crashes, he'd been shot fifteen or sixteen times. The graduation from school, these were all things that he put down on literature to get elected. And where the public trust was really violated, in my opinion, and when I became very offended was when I realized that realistically, the election hinged on the fact that he was a war hero."

The claims were all a fantasy: Alvarez never served in the military, and was not a professional engineer with a degree from Cal Poly, as his campaign literature stated. In fact, he never attended college.

Alvarez -- who has also publicly referred to himself as Javier Alvarez -- was prosecuted on two counts of falsely, verbally claiming to have received the medal. He had conditionally pleaded guilty, reserving his right to later appeal on constitutional grounds. He was fined $5,000, given three years' probation, and resigned in 2010 from the utility board based in Claremont, California.

Kuhn said Alvarez never fully explained his actions. "He was very combative and he did everything he could to get you to not bring it up again... I said you really need to step down. He just he looked at me like there's something wrong with me," said Kuhn. "It was really kind of sad to watch him because it made a big difference in how people see us as politicians or at least at the water board level, in my own community."

While the 9th Circuit Court of Appeals later ruled Alvarez's free speech rights were violated, they showed little sympathy for his actions, calling them "nothing but a series of bizarre lies."

"We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths," the three-judge panel concluded. "But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we preemptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment."

The appeals court ruling prompted outrage from veterans groups, and the Obama administration urged the high court to intervene.

The judges noted Alvarez apparently "makes a hobby of lying about himself." Acquaintances told the FBI he claimed to have received the Medal of Honor during the U.S. Embassy hostage crisis in Iran in 1979, during which, he bragged, he personally rescued the U.S. ambassador. Friends also said he claimed to have won the medal during the Vietnam War, according to court records. He also spread stories that he was a former professional hockey player and a police officer; and that he was married to a Mexican movie starlet.

Alvarez sees his situation differently. His lawyer Jonathan Libby, a federal public defender who will argue the case before the justices, said his client's accumulated lies -- while a "bunch of whoppers," as Libby put it -- were "political speech" and deserved protection.

"Mr. Alvarez was a publicly elected official who told a lie at a meeting," said Libby. "It's our position he was engaging in that same kind of political speech."

"If the court were to uphold the law, it's certainly possibly Congress could pass all kinds of laws: they could make it a crime to lie on one's Facebook page, or a dating website -- and it doesn't necessarily have to be a serious lie, or have to harm anybody," said Libby, who added that his client remains "very apologetic" for his deception. "Sometimes free expression goes too far and offends some people, but on the whole, the First Amendment gives us a certain level of autonomy and that's what the court has protected."

The FBI in 2010 investigated more than 200 "stolen valor" cases, a number that has almost tripled in the years since the 9/11 terrorist attacks, according to the agency.

Beyond the circumstances of this appeal, the broader constitutional concerns deal with the power of the government to limit certain types of speech, particularly those made by public officials and those made during election campaigns.

The Supreme Court has been split in recent years over whether false statements of fact should be protected under the Constitution, except in very limited circumstances. The Justice Department had argued Alvarez's statements deserved no legal protection because they had little value, and that there was a larger societal need to "protect speech that matters," in this case the bravery and integrity of military heroes who rightfully earned their medals.

The high court in 2010 struck down another federal law, this one designed to stop the sale and marketing of videos showing dogfights and other acts of animal cruelty. The 8-1 majority said it was an unconstitutional violation of free speech.

The federal Stolen Valor Act was designed to "protect the reputation" of military decorations, citing "fraudulent claims surrounding the receipt of the Medal of Honor (and other congressionally authorized military medals, decorations, and honors)." Similar laws have been in place since 1948.

The current law was a result of the hard work from Pam and Douglas Sterner, former Colorado natives who helped draft the legislation and who lobbied members of Congress to pass it.

"For every person who claims a Medal of Honor, I've uncovered scores of people claiming the Distinguished Service Cross, Navy Cross, hundreds claiming Purple Hearts," said Doug Sterner, a Vietnam War veteran. "The numbers run into the thousands, and they run from the common criminal who's trying to pick up a girl or get a free meal, to politicians, to some of our most esteemed individuals in society."

The Sterners created "Home of Heroes," a popular website and database on veteran issues. They say if the law is declared unconstitutional by the high court, the next practical step would be to create a government-run, national database to track every medal earned by every American war veteran. That project is in the works and supporters say it would help ferret out frauds like Alvarez, but not stop them entirely.

As for Alvarez, he is currently in the California State Prison in Centinela, convicted separately last year for defrauding the water district. According to court records, he lied to the board about being married so his ex-wife could collect taxpayer-funded health benefits. The couple had actually been divorced for nearly three decades.

He's due to be released next month.

"Including the day of the trial when he was going into court, I never once to this second have ever heard him say, 'I'm sorry I did it' or show any kind of remorse. None. Zero," said Kuhn. "He just doesn't have that gene in him."

The medals case is U.S. v. Alvarez (11-210).

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