Overturning the Stolen Valor Act

Pretending to have received a military honor is despicable, but not every despicable lie should be a crime. That’s the sensible conclusion reached last week by the U.S. 9th Circuit Court of Appeals in striking down a law used against a California public official.

In 2007, Xavier Alvarez, a new board member of the Three Valleys Municipal Water District in Claremont, introduced himself this way: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Writing for a 2-1 majority, Judge Milan D. Smith Jr. pithily noted that “with the exception of ‘I’m still around,’ his self-introduction was nothing but a series of bizarre lies.” It wasn’t the only time Alvarez had traded in falsehoods. According to the court, he claimed to have rescued the U.S. ambassador during the Iranian hostage crisis (the reason for his fictitious Medal of Honor) and to have played hockey for the Detroit Red Wings.

A lie about receiving a Medal of Honor — an assertion easily checked through the Internet — deserves public scorn. But the government decided that wasn’t enough. It prosecuted Alvarez under the Stolen Valor Act, which makes it a crime punishable by a fine and up to six months in prison to falsely claim to have received a medal or military decoration. (The sentence can be extended to a year for falsely claiming to have been awarded the Medal of Honor.)

In ruling for Alvarez, the appeals court surveyed Supreme Court decisions on the 1st Amendment and noted that repeatedly the court has stressed, as it did in a famous libel case, that “erroneous statement is inevitable in free debate” and “must be protected if the freedoms of expression are to have the breathing space they need to survive.” Equally important, Alvarez’s misrepresentations didn’t result in any fraudulent financial gain for him or cause the sort of harm to individuals inflicted by libelous statements.

The court also concluded, persuasively, that upholding the Stolen Valor Act would give the government “license to interfere significantly with private and public conversations.” If lying about military service can be made a crime, Smith asked, why not “lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke [or] drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway”? Or playing for the Red Wings, for that matter.

Not for the first time, an unsavory individual has been the beneficiary of a generous interpretation of the 1st Amendment. But nothing in this thoughtful decision protects Alvarez or other pretenders to valor from the shame that no court can erase.