Wednesday, August 18, 2010
Ninth Circuit Holds ‘Stolen Valor’ Law Unconstitutional
By KENNETH OFGANG, Staff Writer
A federal act making it a crime to falsely claim that one holds the Congressional Medal of Honor violates the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a 2-1 decision, the court threw out the conviction of a former member of the Three Valleys Municipal Water District board. The court said the statute reachess beyond the types of false speech that the law may proscribe.
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 entered a plea of guilty to violating the Stolen Valor Act, reserving the right to appeal, and was placed on probation after U.S. District Judge R. Gary Klausner of the Central District of California upheld the act.
Alvarez remained a member of the water board, however, until October 2009, 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. His appeal from that conviction remains pending.
Judge Milan D. Smith, joined by Senior Judge Thomas G. Nelson, said the law went too far by penalizing false claims to have won the Medal of Honor or other congressional honors without regard to context.
“While we agree with [Judge Jay Bybee’s] dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech,” Smith wrote.
“...Rather we hold 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.”
Where laws proscribing false speech have been upheld, Smith explained, the law has always included narrowing elements, such as a requirement of intent to defraud. The court cannot, as prosecutors argued, place the burden on the defendant to show that the false speech was entitled to protection, the judge concluded.
Smith distinguished the Stolen Valor Act from the law of defamation. He noted that the act does not require a showing of malicious intent or scienter, and said that reading a scienter requirement into the act—as the government urged at oral argument—would not save it because the Supreme Court “has never held that a person can be liable for defamation merely for spreading knowingly false statements.”
Alvarez is believed to be one of only two persons prosecuted under the act. The other, Rick Strandlof, had his case dismissed last month when a district judge in Denver also concluded that the law is unconstitutional.
Bybee argued in his dissent that the act should be upheld based on “the clarity and consistency of Supreme Court’s insistence that false statements of fact...generally fall outside First Amendment protection.”
While some applications of the statute might be unconstitutional, he wrote, Alvarez’s statement, made with knowing falsity in a public meeting, which “was neither a slip of the tongue nor a theatrical performance,” but an effort at self-promotion, is not protected by the First Amendment.
“Public discourse requires that citizens are equally free to praise or to condemn their government and its officials, but I can see no value in false, self-aggrandizing statements by public servants,” Bybee argued. “Indeed, the harm from public officials outright lying to the public on matters of public record should be obvious. If the Stolen Valor Act ‘chills’ false autobiographical claims by public officials such as Alvarez, our public discourse will not be the worse for the loss.”
The case was argued in the Ninth Circuit by Deputy Federal Public Defender Jonathan Libby and Assistant U.S. Attorney Craig Missakian.
The case is United States v. Alvarez, 08-50345.
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