The Tully Center for Free Speech

Free Speech Zone

Lies, Lies and Questionable Lies

By Roy Gutterman, February 22, 2012

The lies Xavier Alvarez propagated were extensive and far-reaching. He claimed to be a professional hockey player, that he was married to a Mexican starlet, that he had a role in rescuing an American ambassador from the Iranian hostage crisis and that he served heroically as a U.S. Marine and had been awarded numerous military honors, including the Medal of Honor.

None of it was true. None.

Some of these lies ended up costing Alvarez and catapulted him into a First Amendment dispute that reached the United States Supreme Court, with arguments set for Wednesday.

Alvarez, one of the first to be prosecuted under the federal Stolen Valor Act, is now challenging the law at the Supreme Court.  His argument: lies should be protected under the First Amendment.

Alvarez was an elected member of a water district board in Pamona, California, where he made these statements at public meetings. After an FBI investigation and subsequent prosecution, Alvarez, exposed as a fraud and maligned in public and press accounts, pleaded guilty. He was sentenced by a federal judge to three years’ probation and a $5,000 fine.

He subsequently appealed the conviction, which was overturned by the Court of Appeals for the Ninth Circuit.  The government sought review by the United States Supreme Court, which scheduled the arguments for Wednesday.

At issue here is the Stolen Valor Act, a 2005 law that criminalizes falsely claiming military honors, a misdemeanor offense that carries up to six months in prison.  The punishment is enhanced to a year for falsely claiming the Medal of Honor.

The challenge asks whether the Act as a content-based restriction is constitutional under the First Amendment and whether the government has a compelling interest in outlawing this kind of speech.

Whether lies have value in the marketplace of ideas raises a delicate constitutional question, especially with the emotional component of military honors at a time when the military is stretched and thousands of veterans return home after serving the country. Should patriotism and respect for the military outweigh questionable speech with questionable value in the marketplace of ideas?

Congress passed the law to restore prestige to military honors and prevent dilution of these honors by people who falsely claim them and others who sell military medals.

There might be a legitimate purpose behind the law.  But when it is put in practice and ends up punishing speech, it raises a constitutional question under the First Amendment.

Thus, the court is again called on to create a new category of speech that would fall outside the protection of the First Amendment.  An entire range of lies already falls outside this protection, including defamation, fraud and perjury, respectively false, harmful published statements about someone, lies told to induce certain behavior and lies told under oath in judicial or governmental proceedings.  Other categories of unprotected speech include obscenity and incitement.

But lies about one’s self and falsely claiming military service and honors does not fit into any of these categories.

On the other hand, the Court has ruled on the value of certain lies in debate and afforded some level of protection for lies, especially in matters of public debate.

The Ninth Circuit’s majority opinion pointed out: “However, the right to speak and write whatever one chooses – including , to some degree, worthless, offensive, and demonstrable untruths – without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment.”

It will be interesting to see whether the Supreme Court agrees.