Stolen Valor Act Unconstitutional: Ninth Circuit's Opinion in Alvarez

[UPDATE here]

In an lengthy opinion, over an equally lengthy dissent by Judge Jay Bybee, a panel of the Ninth Circuit has held the Stolen Valor Act unconstitutional. 

The Act, codified at 18 U.S.C. § 704(b), criminalizes false representations, verbal or written, that one has been "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."  

In Alvarez, there seems to be no doubt that the statute was violated.  As the Ninth Circuit recited:

Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez arose and 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.”

Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of “I’m still around,” his self-introduction was nothing but a series of bizarre lies.

The Ninth Circuit analyzed the Stolen Valor Act under the First Amendment: it is clearly regulating "only words."  The majority also reasoned that the "Act targets words about a specific subject: military honors," and is thus a content-based regulation subject to strict scrutiny.   The Ninth Circuit panel rejected the argument that the falsity of the statements remove the issue from constitutional protection or scrutiny.  To adopt such a view (articulated by the dissent) would be "turning customary First Amendment analysis on its head."  The panel then discussed several of the categorical exclusions urged by the government, perhaps most interestingly an analogy to defamation: 

even if it were justifiable to presume that harm to the meaning and reputation of military decorations occurs whenever a false claim concerning their receipt or possession is made, the government may not restrict speech as a means of self-preservation. The right against defamation belongs to natural persons, not to governmental institutions or symbols.

The damage to the "reputation and meaning" of military and Congressional decorations and medals resurfaces in the analysis of the government's interest weighed in the strict scrutiny test.  The panel reasoned that Congress has "an interest, even a compelling interest, in preserving the integrity of its system of honoring our military men and women for their service and, at times, their sacrifice."  Yet the panel quickly concludes that the Stolen Valor Act is narrowly tailored to achieving that "noble interest."

The Ninth Circuit stated that "criminally-punishing lies" is not the best way to achieve the purpose:  "it seems just as likely that the reputation and meaning of such medals is wholly unaffected by those who lie about having received them. The greatest damage done seems to be to the reputations of the liars themselves."

Bybee's dissent stressed the falsity of Alvarez' statements, a stress that some will certainly find noteworthy given allegations regarding Bybee's own truthfulness in his judicial confirmation hearings regarding his role in the Bush "torture" policy. The transcript of the May 26, 2010 House Judiciary Committee interview of Bybee regarding his role regarding the approval of torture in the Bush Office of Legal Counsel  is available here.

[image: Space Medal of Honor via] [see comments]

RR