Metropolitan News-Enterprise


Tuesday, October 18, 2011


Page 1


U.S. Supreme Court Agrees to Rule on Stolen Valor Act

Justices to Decide Whether Conviction of Ex-Official From Pomona Should Be Revived




The U.S. Supreme Court agreed yesterday to decide whether a federal act providing for up to a year’s imprisonment for falsely claiming that one holds the Congressional Medal of Honor violates the First Amendment.

The court granted the government’s petition for writ of certiorari in United States v. Alvarez,  11-210. The Department of Justice insists that the Ninth U.S. Circuit Court of Appeals erred when it threw out the conviction of former Three Valleys Municipal Water District board member Xavier Alvarez.

The panel ruled 2-1 that the statute reaches beyond the types of false speech that the law may proscribe.

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. That conviction was upheld, and he is currently serving his sentence at the California State Prison in Calipatria, according to Department of Corrections records.

The Ninth Circuit majority, Judge Milan D. Smith and Senior Judge Thomas G. Nelson, since deceased, 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.

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.

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.

The Ninth Circuit denied en banc review, with seven judges dissenting.

The solicitor general argued that in his petition that the law “plays a vital role in safeguarding the integrity and efficacy of the government’s military honors system” and that the Ninth Circuit erred in applying strict scrutiny. While no appellate court has upheld the law, the government said the issue is now pending in four other circuits.


Copyright 2011, Metropolitan News Company