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.”