By Pat Murphy
The Daily Recrod Newswire
Leave it to the 9th Circuit to issue a decision that ties your guts up in knots.
Earlier this month, the court actually concluded that a California politician could serially lie about receiving the Congressional Medal of Honor without fear of criminal prosecution.
Last month, this corner wrote about a Colorado judge who stuck it in the eye of U.S. war vets by deciding that the Stolen Valor Act violated the First Amendment.
The latest decision from the 9th Circuit addressed the prosecution of Xavier Alvarez, a member of the Valley Water District Board of Directors who has a penchant for falsely proclaiming himself a war hero.
According to the court, Alvarez once told a local citizen that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis. Spinning the yarn further, Alvarez said that he had been shot in the back as he returned to the embassy to save the American flag.
As outrageous as those lies were, what placed him in the crosshairs of federal prosecutors was his conduct at a water district board meeting on July 23, 2007.
The newly elected Director Alvarez introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”
Needless to say, none of it was true and federal prosecutors who obtained a recording of the meeting charged Alvarez with violating the Stolen Valor Act, apparently the first such prosecution in the country.
The Act provides that “[w]hoever falsely represents 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, 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.”
Alvarez pleaded guilty to the charge, reserving his right to appeal his conviction on constitutional grounds.
The 9th Circuit in all its wisdom decided that the Act was fatally flawed under the First Amendment.
Judge Milan D. Smith wrote the majority opinion. Smith found the statute problematic because, in his view, allowing it to stand would be “setting a precedent whereby the government may proscribe speech solely because it is a lie.”
Taking that tack, he and his colleague in the majority held that “regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment.”
Strict scrutiny applied here, Smith wrote, because “the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep.”
Of course, strict scrutiny typically spells the death knell for any governmental action and so it was in this case for the Stolen Valor Act.
Predictably, the court concluded that the Act was not narrowly drawn to achieve a compelling governmental interest. (U.S. v. Alvarez)
The result had Judge Jay Bybee fuming.
In his dissent, Bybee scolded the majority for ignoring the Supreme Court’s consistent pronouncements that false statements generally fall outside First Amendment protection.
“[T]he majority has misread the cases and, in the process, turned the exceptions into the rule and the rule into an exception,” Bybee said.
The judge explained that the “the better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact — as a general category — fall outside of First Amendment protection except in certain contexts where such protection is necessary ‘to protect speech that matters.’
“If a false statement does not fall within one of these exceptions, the general rule applies. And even in the exceptional contexts, a false statement that is neither satirical nor theatrical is unprotected if it is made with knowledge or reckless disregard of falsity.”
Bybee took issue with the majority’s conclusion that “bona fide harm” must be an element of a Stolen Valor Act violation for it to pass constitutional muster.
“The likelihood of a ‘bona fide harm’ has nothing to do with whether a category of speech loses First Amendment protection,” Bybee said.
The judge observed that “even if the First Amendment demanded some proof of harm, the majority has supplied no reason to question Congress’s determination that ‘[f]raudulent claims surrounding the receipt of ... [military] decorations and medals awarded by the President or the Armed Forces of the United States damage the reputation and meaning of such decorations and medals.’”
Well, the outlines of the basic arguments concerning the constitutionality of the Stolen Valor Act have been drawn.
If the en banc 9th Circuit doesn’t see fit to overturn this panel’s decision, the bet here is that the Supreme Court in its current makeup will give U.S. v. Alvarez a short shelf life.
