Metropolitan News-Enterprise


Thursday, November 5, 2009


Page 1


Attorney Argues ‘Stolen Valor’ Law Is Unconstitutional




A federal act making it a crime to falsely claim that one holds the Congressional Medal of Honor violates the First Amendment, the attorney for a former member of the Three Valleys Municipal Water District board told a Ninth U.S. Circuit Court of Appeals panel yesterday in Pasadena.

“In some cases, false speech is protected speech,” Deputy Federal Public Defender Jonathan D. Libby told the judges. “This is one of those cases.”

Xavier Alvarez was elected to the water board in 2006 by south Pomona voters. Asked to introduce himself at his first meeting, he explained that he had served for 29 years in the Marine Corps and held several decorations, including a Medal of Honor for pulling the flag from the embassy in Iran during the hostage crisis in the 1970s.

In fact, he had never served in the military. He was convicted of violating the Stolen Valor Act and was placed on probation, the conditions of which included service at a veterans’ home.

Alvarez remained a member of the board, however, until last month, when he was sentenced by Los Angeles Superior Court Judge Michael Camacho to five years in state prison for misappropriating district funds by qualifying his ex-wife for insurance benefits.

Both Libby and Assistant U.S. Attorney Craig Missakian were questioned pointedly by Judges Jay Bybee and Milan D. Smith Jr. as to how far the government can go in penalizing false statements.

It would be “astonishing” for a court to find as a general proposition that lies enjoy free speech protection, Bybee said, and Libby did not disagree. But the defense attorney insisted that the Stolen Valor Act, which contains no requirement that the lie be made with intent to defraud or deceive, or be made under oath, crosses the line.

Under questioning by Smith, Libby acknowledged that the government “has a legitimate interest to protect here.” But that interest does not require a criminal statute, Libby said, because Congress could have imposed civil liability in favor of anyone injured by a violation.

The reputations of actual Medal of Honor recipients—94 of whom are currently living—are already protected because anyone can go to a government website containing their names and personal histories, Libby added.

Bybee acknowledged that lying in the political process is common, and that a degree of free speech protection likely exists for falsehoods told in support of, or in opposition to, political objectives. But he questioned whether that same principle applies to the specific falsehoods banned by the Stolen Valor Act.

“What interest is this speech spurring?” he asked.

Libby suggested that Alvarez’s speech was in part political, since he was an elected official seeking to inflate his reputation.

Smith, the brother of former U.S. Sen. Gordon Smith, an Oregon Republican, said the statute might be overbroad. But he said he was troubled by the “open-ended concept” of constitutional protection for false speech.

He contrasted Alvarez’s boasts with Daniel Ellsberg’s leaking of the Pentagon Papers, an event that may have sped up American disengagement from Vietnam.

“What public good is your client doing her that warrants this level of constitutional protection?” he asked.

But Smith also asked Missakian whether Congress can ban lies that lack identifiable negative consequences. The prosecutor acknowledged that the government cannot ban lying “about a person’s age or about whether there is a Santa Claus,” but said Congress could protect against “a more generalized harm.”

The law is not so broad, he said, as to allow prosecution of someone who makes a hyperbolic claim that is not intended to be believed, or who participates in a theatrical performance.

Smith also asked Missakian about the claim that Alvarez’s speech was political, and that prosecuting him for it was akin to a revival of the Sedition Act used by 18th Century Federalists to punish criticism of their performance in office.

Missakian said that while participants in public discourse are entitled to “breathing space,” that concept “doesn’t extend to intentional lies.”

In a brief rebuttal, Libby returned to the argument that Alvarez’s speech was political, which led to nervous laughter in the room after Smith attempted a play on words following mention of Alvarez’s service on the “water board.”

“We don’t want to talk about the waterboard,” he commented, bringing a half-smile to the face of Bybee, sitting immediately to his right. Bybee has been sharply criticized for his authorship, while serving as assistant attorney general in the administration of George W. Bush, of a memo suggesting that detained enemy combatants could be subjected to “enhanced interrogation techniques.”

The third member of the panel, Senior Judge Thomas G. Nelson, participated via videoconference but did not ask any questions.


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