Metropolitan News-Enterprise


Tuesday, March 22, 2011


Page 3


Ninth U.S. Circuit Denies En Banc Rehearing in ‘Stolen Valor’ Case 




The Ninth U.S. Circuit Court of Appeals yesterday left standing its ruling of last October striking down the Stolen Valor Act.

Over the dissents of seven judges, the court denied the government’s petition for en banc rehearing in  United States v. Alvarez, 08-50345. The dissenters argued that the panel ruling was contrary to Supreme Court precedents denying free speech protection to false statements.

That view drew a stinging retort from Chief Judge Alex Kozinski, who defended the panel’s ruling and said that allowing Congress unbridled discretion to criminalize false speech would “sound the death knell for the First Amendment as we know it.”

The act, which has also been held unconstitutional by a federal district judge in Colorado, makes it a crime to falsely claim that one holds the Congressional Medal of Honor. The Ninth Circuit’s three-judge panel, in an opinion by Judge Milan D. Smith, said the act  violates the First Amendment.

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 reaches beyond the types of false speech that the law may proscribe.

Water Board

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 by claiming they were still married. .

His conviction on that charge was affirmed by this district’s Court of Appeal, and he is now serving his sentence at Centinela State Prison, according to the California Department of Corrections and Rehabilitation.

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.

But Judge Diarmuid F. O’Scannlain, joined by Judges Ronald Gould, Jay Bybee, Consuelo Callahan, Carlos Bea, Sandra Ikuta, and N. Randy Smith, argued yesterday that the case should be reheard because the ruling runs contrary to the Supreme Court’s jurisprudence.

“In giving strict scrutiny to the Stolen Valor Act, the majority ignored a straightforward aspect of First Amendment law: the right to lie is not a fundamental right under the Constitution,” O’Scannlain wrote. “For nearly forty years, the Supreme Court has made this much abundantly clear.”

Gertz Cited

The dissenting jurist cited several cases, beginning with Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, in which the high court has declined to give constitutional protection to statements that were determined to be false.

Gould, in a separate dissent, argued that even if some false speech is protected, Congress had a heightened interest in banning such speech “in the military context, in which the power of Congress is necessarily strong.”

Judge Milan Smith, however, said the dissenters failed to identify any decision of the Supreme Court which punishes false speech as broadly as the Stolen Valor Act. In an opinion joined by Kozinski, concurring in the denial of en banc rehearing, the author of the panel opinion compared the statute to “the much-maligned Alien and Sedition Act of 1798,” which made it a crime to publish “false, scandalous and malicious writings” about the president or Congress.

Kozinski, in his separate concurrence, predicted dire consequences if the panel ruling is overturned.

He wrote:

“So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as ‘rational basis review.’”


Copyright 2011, Metropolitan News Company