Criminalizing speech is a tricky business, but Congress seemed to think it had found the right balance in 2006 when it overwhelmingly enacted the Stolen Valor Act, which made it a crime simply to lie about having received a military medal or service badge.
Stolen Valor Act ruling Xavier AlvarezTherese Tran/Inland Valley Daily Bulletin Xavier Alvarez falsely claimed to have been a U.S. Marine and Medal of Honor recipient.
But the United States Court of Appeals for the Ninth Circuit begs to differ. In a decision released on Tuesday, the three-judge panel, based in San Francisco, declared the law unconstitutional because it infringed on the defendant’s freedom of speech, even if it was false. That defendant, Xavier Alvarez, had claimed to be a Marine and a winner of the Medal of Honor, the nation’s highest military award. He was neither.
In a 2-to-1 ruling, the appellate court said that if the law were held constitutional, many everyday lies could become criminal acts. “There would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway,” Judge Milan D. Smith, Jr., wrote for the majority. “The sad fact is, most people lie about some aspects of their lives from time to time.”
For the government to limit freedom of speech, it would have to show a compelling need, the decision argued, and not just that a person was lying about military honors. But the majority concluded that the central intent of the law, to motivate and honor troops, could be accomplished without restricting speech.
The majority also found that there was no malice intended or harm done, since Mr. Alvarez uttered his fabrication during introductory remarks before the Three Valley Water District board of directors in California, of which he was a new member. (Mr. Alvarez, the judges noted, had also at various times claimed to have played hockey for the Detroit Red Wings and to have rescued the American ambassador during the Iranian hostage crisis.)
“We have no doubt that society would be better off if Mr. Alvarez would stop spreading worthless, ridiculous and offensive untruths,” the ruling said. “But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements.”
In his dissenting opinion in the case, Judge Jay S. Bybee asserted that no proof of harm was needed to limit Mr. Alvarez’s untruthful speech. “Such false representations not only dishonor the decorations and medal themselves, but dilute the select group of those who have earned the nation’s gratitude for their valor,” Judge Bybee wrote.
Representative John T. Salazar, a Democrat from Colorado who introduced the bill in 2005, said he was disappointed with the court’s ruling. In a statement, Mr. Salazar said, “I am confident that upon appeal to the Supreme Court their misguided decision will be overturned. We live in a society that wants to honor our nation’s veterans.” He added, “As long as I am in Congress, I will not give up the effort to protect their honor. These fake heroes use lies to claim undeserved federal veterans benefits and defraud their communities into believing they are someone they are most certainly not for personal gain.”
All three judges were nominated by Republican presidents.
The prosecution did not return calls about whether it plans to appeal the ruling.
The Ninth Circuit’s ruling comes just a month after a federal judge in Colorado dismissed charges under the Stolen Valor Act against a man who had falsely claimed to be a decorated Marine, Richard Strandlof. In that case, United States District Judge Robert E. Blackburn also found that the law unconstitutionally abridged freedom of speech.