Thanks to one of our highly valued readers for alerting us to this split published 9th Circuit opinion holding the Stolen Valor Act unconstitutional.  United States v. Alverez, __ F.3d ___, No. 08=50345 (9th Cir. Aug. 17, 2010).  Judge Milan Smith wrote for himself and Judge Nelson.  Judge Bybee dissented.  I see a request for en banc rehearing on the horizon.

The beginning of Judge Bybee’s dissent summarizes the case’s factual setting:

Xavier Alvarez, a California public official, stood in a public meeting and announced that he was a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. Alvarez was lying on all counts. He pleaded guilty to violating the Stolen Valor Act of 2005 (“Act”), which punishes a person who “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U.S.C. § 704(b).

(The majority explains that Mr. Alvarez, a member of the Three Valley Water District Board of Directors, unsuccessfully moved to dismiss his indictment on First Amendment grounds.  He then pleaded guilty, reserving his right to appeal the First Amendment question.)

The majority opinion relies, in small part, on the Onion, the Daily Show, and the Colbert Report:

[T]here can be no doubt that there is affirmative constitutional value in at least some knowingly false statements of fact. Satirical entertainment such as The Onion, The Daily Show, and The Colbert Report thrives on making deliberate false statements of fact. Such media outlets play a significant role in inviting citizens alienated by mainstream news media into meaningful public debate over economic, military, political and social issues.

Judge Bybee’s dissent distinguishes known satire or dramatic presentations from the sort of false claim that Mr. Alvarez made and concludes:  “Assuming, as I must, that the Act will be applied with some modicum of common sense, it does not reach satire or imaginative expression.”

16 Responses to “9th Circuit panel holds Stolen Valor Act unconstitutional”

  1. Birth, Wind, and Fire says:

    It’s “Medal of Honor,” not “Congressional Medal of Honor.” Get it right, Judge Bybee.

  2. huh says:

    Bybee thinks lots of things are constitutional. Like wall standing … crating … waterboarding and more.

  3. Anonymous says:

    If wall-standing is “unconstitutional,” then every Marine Corps Drill Instructor is guilty of violating recruits’ rights.

  4. Anon says:

    Criticism should be directed at the author of the opinion – Judge Bybee’s law clerk.

  5. Anonymous says:

    Perhaps a reading of the majority opinion would help. It establishes that Judge Bybee was just paraphrasing what the imposter said.

    The majority quotes the imposter as saying: “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.”

  6. Christopher Mathews says:

    That’s more than a little bizarre.

    Things were relatively quiet between 1976 and 1987; as far as I know, there were no MOHs awarded for actions between the end of the Vietnam War and the “Black Hawk Down” incident in Mogadishu in 1993. I wouldn’t necessarily expect his audience to know that, but you’d think the guy could have come up with a better story.

  7. John O'Connor says:

    Right, you’d think the guy would at least say it was in the Gulf War. Those really in the know would realize that’s impossible, but most people wouldn’t and it at least sounds plausible.

  8. Bridget says:

    Perhaps the distinction is not just lying but lies with a result. Has the individual obtained some concrete benefit or particular item from the lie? That would be fraud. Some of these guys got $$ and all kinds of calculable perks from their lies. (Which are despicable, but if we prosecuted everyone who lied to look more important..well, you get the drift).

  9. Anonymous says:

    “The majority opinion relies, in small part, on the Onion, the Daily Show, and the Colbert Report.” It’s about time the courts cite to the media that is more accurate than what passes these days. Stolen valor – what a joke.

  10. Justin says:

    Secret medal. Can’t talk about the specifics of its origins. Congress issued it in a closed session. Also, there won’t be records of its issuance anywhere outside a secure vault at the National Archives.

  11. soonergrunt says:

    I don’t have any use for guys like that. I kind of have pity for anyone who has so little self-respect, but I’m also all about such people raising their right hands and actually going and doing.
    Having said that, I’m not sure how one can argue that the first amendment protects lies, and pathetic ones at that, but I’m also not sure that law enforcement really needs to be going after these guys. I would think that there are real serious crimes that should be investigated and prosecuted, and as long as they aren’t trying to defraud somebody, I don’t think it’s that serious of an issue.
    This guy didn’t steal my honor and he didn’t take anything, valuable or ephemeral, from any of the incredibly brave heroes with whom I had the honor of serving.

  12. John Harwood says:

    So does this mean that I can now cite to Colbert, The Daily Show and maybe even Ren and Stimpy in my motions?

  13. soonergrunt says:

    I’m not a lawyer, mind you but I don’t think that going full-metal Ren and referring to the trial judge as an “eeediot!” or a “quivering blob of protoplasm!” will be very helpful in an appellate brief.
    But I could be wrong, cause I’m not a lawyer.

  14. Anon says:

    What if he had worn the MOH lapel pin while making his statements? He would also have been prosecuted for violating 18 USC 704(a), which criminalizes knowing wearing of the MOH or a colorable likeness. The majority opinion briskly distinguishes impersonation from speech as not requiring strict scrutiny, but methinks the defendant’s verbal impersonation is more dangerous than a t-shirt with an MOH logo and the words “Remember our Heroes” (also illegal to wear under 704(a)).

  15. Anon says:

    make that unauthorized knowing wearing … legitimate recipients of course excepted.

  16. I cannot stand it says:

    The statute is obviously constitutional. In some places I have traveled in this great land. Falsely claiming to be a veteran let alone a MOH recipioent could easily qualify as fighting words and I would not lift a finger to protect the speakers imaginary right to fabricate h onors he has not earned. It demeans heros in a country that has reached a point in its history where it desperately needs heros. The irony is that in a country so in need of heros Congress would spend its time on such a low priority item as the village idiot engaging in what everyone in town knows is a lie rather than man up and take on something like perhaps the deficit before it consumes us all.