Ninth Circuit strikes down law criminalizinng false claims of military honors

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Tuesday struck down a federal law [opinion, PDF] criminalizing the act of falsely claiming to have received a medal from the US military. Xavier Alvarez was convicted under the Stolen Valor Act [text] in 2007 after he announced at a public water district board meeting that he was a retired Marine and had received the Congressional Medal of Honor. Alvarez had never received the nation's highest military honor nor had he ever served in any military service. After a fellow board member alerted the FBI to Alvarez's false statements, he was charged under the act and agreed to plead guilty if he was allowed to appeal the conviction on First Amendment [text] grounds. The Ninth Circuit held that the speech prohibited under the Stolen Valor Act did not fit within the narrow categories of false speech held to be beyond the First Amendment's "protective sweep." Judge Milan Smith, writing the opinion for the panel, stated that the district court's expansion of the scope of existing categorical exceptions to First Amendment protection would open the door to criminalization of false statements that were never intended to lie outside the amendments protective ground:

[I]f the Act is constitutional under th[is] analysis..., 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. Perhaps, in context, many of these lies are within the government's legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court's undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech. ... We then apply strict scrutiny review to the Act, and hold it unconstitutional because it is not narrowly tailored to achieving a compelling governmental interest.
In his dissent, Judge Jay Bybee argued that the majority refused to follow clear US Supreme Court [official website] precedent that false statements of fact are not entitled to First Amendment protection. The US Attorney's Office has not yet decided whether to appeal [AP report] the court's ruling.

The Stolen Valor Act was unanimously approved by the Senate and signed into law by former president George W. Bush in 2006. The act broadened provisions of previous US law and criminalizes the unauthorized wear, manufacture, sale or written or oral claim of any military decorations and medals. According to the circuit court opinion, Alavarez had a history of making false claims about serving in the military. He had previously told another board member that he won the Medal of Honor for rescuing the American ambassador during the Iranian hostage crisis and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his fellow soldiers, was able to get the helicopter back into the sky. Alvarez had also claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer and to have been secretly married to a Mexican starlet.

 

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