In 2006, the bill passed easily through the House and unanimously in the Senate. Last week, however, the Stolen Valor Act ran smack into the Ninth U.S. Circuit Court of Appeals -- insert your favorite Ninth Circuit joke here.
A three-judge panel in San Francisco ruled that the law violates the First Amendment and is unconstitutional. Consider this tale the latest example of how impossible it is to get a simple law enacted, prosecuted and upheld in the American criminal justice system.
The beneficiary of the court's ruling: One Xavier Alvarez, the first known man to be charged and convicted for breaking the new law. In 2007, as a newly elected Three Valleys Municipal Water District Board member, Alvarez announced publicly, "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."
As U.S. Court of Appeals Judge Milan D. Smith noted, Alvarez never served a day in his life in the military, never was awarded a medal and has a rich history of telling lies about himself -- also having claimed falsely to have played pro hockey, to have worked as a cop and to have been married secretly to a Mexican starlet.
Alvarez is now serving a five-year sentence in state prison for misappropriating public funds by signing up his ex-wife for health insurance benefits.
Before the state conviction, Alvarez pleaded guilty to one count of violating the Stolen Valor Act and was sentenced to community service and probation and a $5,000 fine. Unfortunately for the taxpayers, Alvarez retained the right to appeal the law. A spokesman for the California Central District U.S. Attorney explained that conditional plea agreements are not unusual for convictions with "novel legal issues."
The approach paid off. As Smith wrote, if the courts upheld the law, "then there would be no constitutional bar to criminalizing 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, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time."
It was of special concern to the court that the Stolen Valor Act imposes a criminal penalty "for the mere utterance or writing of what is, or may be perceived as, a false statement of fact." The law isn't limited, for example, to lies on job applications, but lies anywhere. For Americans wary of the government acting as thought police, Smith laid out a compelling argument. But in so doing, he essentially held that lying about yourself is a free-speech right.
Judge Jay Bybee wrote a spirited dissenting opinion in which he noted, "I can see no value in false, self-aggrandizing statements by public servants ... 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."
"From a nonlegal perspective, I don't necessary disagree with that," Alvarez attorney Jonathan Libby told me. But as an attorney, Libby said he believes the new law "is beyond the Constitution."
George Washington University law professor Jonathan Turley made a similar argument in a piece for USA Today. Turley didn't disagree with those who would call Alvarez and others "valor thieves" and "semper frauds." He wrote, "We can all agree that false claims of military honors are repugnant and worthy of social condemnation. These men deserve to be social pariahs, but there remains a serious question over whether they deserve to be criminal defendants."
I should point out that if Alvarez had lied about his military record for financial gain, then other laws would have taken care of him nicely.
And: Smith, Bybee and Judge Thomas Nelson were appointed by Republican presidents, so you could call this issue an honest, if spirited, disagreement inside the right.
As Libby noted, "The point of the case was whether Congress, consistent with the First Amendment, can pass a law determining what lies are criminal and what lies are not."
For his part, Bybee argued that knowingly false statements deserve no First Amendment protection. But in this complicated age, nothing is simple. Think about it. I don't think this lying, cheating poseur would have been caught if he hadn't won an election.
