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Can U.S. law punish a theft of honor?

By MICHAEL KIRKLAND   |   Sept. 11, 2011 at 3:30 AM   |   Comments

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WASHINGTON, Sept. 11 (UPI) -- It may not be the most important issue in the legal universe, but it's one that can make American blood boil: What can U.S. law do about those politicians and average people who falsely claim to have received military awards for valor, up to and including the Medal of Honor?

A series of U.S. laws, beginning in 1948, have made it a crime to falsely claim military decorations. The latest, the Stolen Valor Act, was passed by Congress and signed into law in 2006. A violation carries a possible year in prison plus a fine.

But a federal appeals court panel in California ruled 2-1 last year in a case involving a false claim of the Medal of Honor that such claims are protected by the First Amendment. Speech is speech, the panel majority said, even if it's a lie.

The panel majority declared the Stolen Valor Act unconstitutional.

Now the Obama administration is asking the U.S. Supreme Court to review and reverse the appeals court panel, restoring the act.

Falsely claiming medals may be more prevalent than you think.

An August 2009 article in The New York Times -- "In Ranks of Heroes, Finding the Fakes" -- pointed out that the Texas Department of Transportation started asking applicants for more documentation when it discovered at least 11 of 67 Legion of Merit license plates had been issued to people who did not win the medal.

The Legion of Merit is only one of two U.S. military medals worn around the neck. The other is the Medal of Honor.

Also in 2009, the U.S. House of Representatives had to rescind a bill naming a Las Vegas post office after a World War II veteran who claimed to have won a Silver Star -- but didn't, the Times said. That's not all, the newspaper said: One of the most prominent advocates for veterans in Colorado was detained by the FBI that May when his story about heroics in Iraq and severe injuries from a roadside bomb in that theater turned out to be "an elaborate hoax."

The Times article said the problem of military impostors has grown with the Internet and the sale of fake documents, medals and uniforms. The popularity of the military following the Sept. 11, 2001, terror attacks also added fuel to the fire.

The Times article cited a July 2009 article in The Marine Corps Times which found 40 doctored profiles in that year's Marine Corps Association Directory -- 16 made false claims for the Medal of Honor, 16 for the Navy Cross and eight for the Silver Star.

Part of the problem, The New York Times article said, is that there is no computer database of military records -- the paper records are stored at the National Archives.

For the time being, the article said, volunteers and non-profit organizations police at least a portion of the medal claims.

In October 2008, the Chicago Tribune said its investigation of the problem found "scores" of Americans, from clergymen to chief executive officers, had claimed "medals of valor they never earned."

The newspaper said it looked at the online edition of Who's Who, and of 333 profiles of people claiming the nation's highest military awards, about a third could not be verified by military records. In addition, the Tribune said, a look at 273 obituaries published over the past decade discovered that claims of decorations could not be supported by records in four out of every five cases.

Some people took their bogus claims to the grave, the Tribune said. The newspaper found a number of false medal claims, including at least two Medals of Honor, engraved on headstones in military cemeteries.

More than half the medal claims examined by the Tribune were not supported by official military records.

Those making the false claims in profiles or obituaries included "lawyers, physicians, clergymen, CEOs, business executives, company presidents, university professors, career military officers, teachers, policemen, elected officials, even a psychiatrist," the Tribune said.

In the California case being considered by the Supreme Court, Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly seated Director Alvarez arose and introduced himself, court records say.

"I'm a retired Marine of 25 years," Alvarez told meeting attendants. "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."

The only problem, the appeals court opinion says, was that "Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a Marine or in the service of any other branch of the United States armed forces. In short, with the exception of 'I'm still around,' his self-introduction was nothing but a series of bizarre lies."

Moreover, Alvarez's lies during that 2007 water district board meeting "were only the latest in a long string of fabrications. Apparently, Alvarez makes a hobby of lying about himself," the appeals court opinion says.

The summer before his election to the board, a woman tipped off the FBI about Alvarez's claims, including those claims he was making about the Medal of Honor. Alvarez had told the woman he won the nation's highest military award for rescuing the U.S. ambassador during the Iranian hostage crisis, then ran back to the embassy to rescue the U.S. flag, the court opinion says.

He also "claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer (who was fired for using excessive force), and to have been secretly married to a Mexican starlet," the opinion says.

After the FBI obtained a recording of the water district board meeting, Alvarez was indicted in federal court in Los Angeles on two counts of violating the Stolen Valor Act.

Represented by the federal public defender in Los Angeles, Alvarez pleaded guilty -- but reserved the right to challenge the constitutionality of the act on appeal. He was sentenced to a year on probation.

On appeal, a three-judge panel struck down the law. Appellate Judge Milan D. Smith Jr. wrote the 2-1 majority opinion, joined by U.S. Circuit Judge Thomas Nelson. U.S. Circuit Judge Jay Bybee dissented.

The Stolen Valor Act, "as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact -- without anything more," Smith wrote in the majority opinion.

"The act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech."

Smith said regulation of false speech "must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment."

"Strict scrutiny" is the toughest type of judicial examination and is generally applied to First Amendment questions.

"The rule the government and (Bybee's) dissent urge us to apply in order to uphold the act would, if adopted, significantly enlarge the scope of existing categorical exceptions to First Amendment protection. All previous circumstances in which lies have been found proscribable involve not just knowing falsity, but additional elements that serve to narrow what speech may be punished. Indeed, if the act is constitutional under the analysis proffered by Judge Bybee, 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," Smith said,adding, "Finding no appropriate way to avoid the First Amendment question Alvarez poses, we hold that the speech proscribed by the act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment's protective sweep. 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."

Bybee's dissent cites Supreme Court precedent. "All things considered," Bybee said, "Alvarez's self-introduction was neither a slip of the tongue nor a theatrical performance; it was simply a lie. Under the rules announced in (several high court precedents), Alvarez's knowingly false statement is excluded from the limited spheres of protection carved out by the Supreme Court for false statements of fact necessary to protect speech that matters, and it is therefore not entitled to constitutional protection."

The Stolen Valor Act would never survive strict scrutiny, he said, but strict scrutiny should never have been applied to the act.

The U.S. Solicitor General's Office has asked the Supreme Court to review the case -- asking whether the Stolen Valor Act, "which makes it a crime when anyone 'falsely represents himself or herself verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces' ... is facially invalid under the free speech clause of the First Amendment."

The petition from the solicitor general said the Stolen Valor Act "plays a vital role in safeguarding the integrity and efficacy of the government's military honors system."

The court of appeals panel "erroneously subjected (the statute) to strict scrutiny, notwithstanding this (Supreme) Court's longstanding treatment of false factual statements as entitled, at most, only to limited First Amendment protection ... Although the decision below is the first court of appeals decision to address (the act's) constitutionality, the question is currently pending in four other circuit courts. Review of the court of appeals' constitutional holding is therefore warranted."

The Supreme Court has asked Alvarez' lawyers to file a response to the government petition later this month, and should decide sometime after the new term begins on the First Monday of October whether it wants to hear the case. However, the high court rarely turns down a U.S. solicitor general's petition for review.

In the meantime, an excellent source on the nation's highest award is accessible online at the Congressional Medal of Honor Society's Web site at cmohs.org.

The site discusses all aspects of the medal (3,457 have been awarded since it was established in 1863) and also lists the 84 living recipients -- just in case you want to check the claim of some local politician.

© 2011 United Press International, Inc. All Rights Reserved. Any reproduction, republication, redistribution and/or modification of any UPI content is expressly prohibited without UPI's prior written consent.
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