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Justices weigh law making it a crime to falsely claim military medals

By Bill Mears, CNN Supreme Court Producer
updated 4:08 PM EST, Wed February 22, 2012
STORY HIGHLIGHTS
  • Xavier Alvarez falsely claimed to have won the Medal of Honor
  • He was prosecuted under the federal Stolen Valor Act, passed by Congress in 2006
  • A lower court ruled Alvarez's free speech rights were violated in the medal fraud prosecution
  • The justices focus on the harm from lies, the value of honor, and free speech issues

Washington (CNN) -- The Supreme Court took on the role of constitutional truth-seeker in an especially vigorous argument Wednesday, dealing with the harm from lies and the value of honor.

The justices showed a surprising amount of support for the federal Stolen Valor Act, which makes it a crime to falsely claim military medals.

A former California politician was prosecuted by the Justice Department for publicly stating he had earned the Medal of Honor, when in fact the man, Xavier Alvarez, had never served in the military.

Several justices wondered during the one-hour session Wedneday whether the act would chill other types of speech, while others suggested a narrowly tailored law like this one is important to preserve the integrity of military honors from frauds and charlatans.

Justice Anthony Kennedy asked whether "the government is going to have a Ministry of Truth and then allow (legal) breathing space around it, and I just don't think that's our tradition. On the other hand, I have to acknowledge that (these lies do) diminish the medal in many respects."

At issue is the constitutional value of false statements of fact, and whether Congress went too far when passing the Stolen Valor Act in 2006.

The high court has traditionally been skeptical of legislation attempting to limit or regulate "unpopular" speech or free expression -- such as burning the flag, picketing military funerals, and the marketing of animal cruelty videos.

In this dispute, 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 won the Medal of Honor in 1987. The highest military decoration awarded by the U.S. government is sometimes mistakenly called the Congressional Medal of Honor.

"I got wounded many times by the same guy," Alvarez declared, according to court records. "I'm still around."

Alvarez was prosecuted on one count 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 last fall from the utility board based in Claremont, California.

A federal appeals court eventually ruled for the man, saying, "Given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we pre-emptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment."

The Obama administration then asked the high court to intervene.

At argument, the Justice Department's Solicitor General Donald Verrilli told the court, "The point of these medals is that it's a big deal. You get one for doing something very important, after a lot of scrutiny. And for the government to say this is a really big deal and then to stand idly by when one charlatan after another makes a false claim to have won the medal does debase the value of the medal in the eyes of the soldiers... That is the government's interest."

That repeated thought brought instant skepticism from some on the bench.

"Somewhat dangerous, isn't it, to subject speech to the absolute rule of no protection?" said Justice Sonia Sotomayor. "Which is what you're advocating, I understand, that there are no circumstances in which this speech has value."

Kennedy followed up. "I think it's a sweeping proposition to say that there's no value to falsity. Falsity is a way in which we contrast what is false and what is true."

That began a long, often colorful list of hypotheticals on how far such content-based restrictions could be imposed by Congress.

"Where do you stop? I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. Example: high school diploma," offered Chief Justice John Roberts. What if it were "a crime to state that you have a high school diploma if you don't," to reinforce society's value of a public education.

Other examples include limits on Holocaust deniers (to protect the memory of Jewish victims of Nazi atrocities) and politicians lying about having extramarital affairs (to preserve the sanctity of the family).

Certain types of speech are not protected under the First Amendment, including defamation, fraud, libel, impersonation, or perjury.

Justice Antonin Scalia was blunt when he said, "Our (past) cases have repeatedly said that there is no First Amendment value in falsehood." He said Congress deserved great deference in its authority to pass this kind of legislation.

The "harm" versus "value" argument in lying about medals grew more lively when Alvarez's lawyer, Jonathan Libby, struggled at times to defend his client's rights.

He said Americans deserve a "level of personal autonomy."

"What does that mean?" interjected Roberts sternly.

"When we create our own persona, we're often making up things about ourselves that we want people to think about us," said Libby regaining his rhetorical footing. "And that can be valuable." The federal public defender cited the example of author Samuel Clemens changing his name to Mark Twain and making up exaggerated tales of his life.

"Do you really think that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona?" said a skeptical Justice Samuel Alito. "Gee, I won the Medal of Honor. I was a Rhodes Scholar, I won the Nobel Prize. The First Amendment protects that?" Alito, for the record, earned none of those honors.

Several on the court, including Justices Stephen Breyer and Ruth Bader Ginsburg understood the law's intent, if not its actual harm.

"We have a legion of cases that said your emotional reaction to offensive speech is not enough," said Sotomayor. "I too take offense when people make these kinds of claims, but I take offense when someone I'm dating makes a claim that's not true."

Libby told CNN Alvarez was sorry for his actions and had apologized, explaining, "What it comes down to -- Mr. Alvarez has so much respect for the troops, he wanted to be one, and wanted to be looked as someone who does good things."

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 awards)." Similar laws have been in place since 1948.

Other federal judges have recently found the Stolen Valor Act to be unconstitutional.

The issue will have resonance beyond this case, with the ruling expected by June. Separate pending cases at the high court deal with whether false information released during a political election campaign is protected speech.

As for Alvarez, he is currently in the California State Prison in Centinela, convicted separately last year for defrauding the water district. He is due to be released from custody next month.

One thing was clear by the end of the high court's argument: no one showed any sympathy for Alvarez's audacious pattern of deception, including his own lawyer.

"How about giving a Medal of Shame to those who have falsely claimed to have earned the Medal of (Honor)?" said Scalia to courtroom laughter. "I think that would be good."

But would it be constitutional?

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

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