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LAW REVIEW 1065
Is the Stolen Valor Act
Unconstitutional?
By Captain Samuel F. Wright, JAGC, USN
(Ret.)
and Andrew Gonyea[1]
9.0--Miscellaneous
Two courts have recently held the Stolen Valor Act (SVA) to
be unconstitutional. These are the first
two prosecutions under this federal law enacted in 2006. Thus, the Department of Justice (DOJ) is 0-2
in SVA prosecutions. It is unclear
whether DOJ will appeal either of these two decisions or will continue to
prosecute individuals for alleged SVA violations. DOJ has unfettered discretion to decline to
prosecute or to decline to appeal. If
DOJ goes that route, the SVA will effectively become a dead letter, and that
would be most unfortunate.
For decades, it has been unlawful to wear a Medal of Honor (MOH) or other military decoration that one
has not earned, but until 2006 it was not unlawful to claim (in a resume, in a pick-up line, etc.) that one has received
such an award. The principal sponsors of
the SVA were Senator Kent Conrad (North Dakota)
and Representative John Salazar (Colorado). President George W. Bush signed the SVA into
law in late 2006. It is now codified in
title 18, United States Code, section 704 (18 U.S.C. 704).
In 2007, Xavier Alvarez was a newly-elected board member of
the Three Valleys Municipal Water District in Claremont,
California.
At a board meeting, Alvarez introduced
himself to his fellow members and stated, “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.”
In fact, Alvarez never served in any branch of the U.S.
military and received no military decorations.[2] The United States Attorney prosecuted Alvarez
for his alleged violation of 18 U.S.C. 704.
Under a plea agreement between Alvarez’s attorney and the United States
Attorney, Alvarez pled guilty but preserved the right to appeal on the question
of the constitutionality of the SVA. The
District Judge ordered him to pay a $5,000 fine and a $100 special assessment,
to serve three years of probation, and to perform 416 hours of community
service.
Through his attorney, Alvarez appealed to the United States
Court of Appeals for the 9th Circuit, the federal appellate court
that sits in San Francisco and
hears appeals from federal district courts in Alaska,
Arizona, California,
Guam, Idaho,
Montana, Northern
Marianas Islands, Oregon, and Washington. As is always the case in federal appellate
cases, the case was assigned to a three-judge panel. In this case, the panel consisted of Judge
Thomas G. Nelson, Judge Milan D. Smith, Jr., and Judge Jay S. Bybee. All three of them are active judges of the 9th
Circuit. On August 17, 2010, the three-judge
panel, by a vote of 2-1, held the SVA to be unconstitutional.[3] Judge Smith wrote the majority decision, and
Judge Bybee wrote the dissent.
In the majority decision, Judge Smith expressed concern that
if the constitutionality of the SVA were upheld many everyday lies could become
criminal acts. Judge Smith wrote: “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.” Additionally, Judge Smith noted
that, “given our historical skepticism of permitting the government to police
the line between truth and falsity, and between valuable speech and drivel, we
presumptively protect all speech, including false statements, in order that
clearly protected speech may flower in the shelter of the First Amendment.” While not endorsing “an unbridled right to
lie,” the majority stated that Congress is limited in its ability to limit freedom
of speech to instances where direct and significant harm is reasonably
foreseeable. In this case, the majority
found no such harm.
In his dissent, Judge Bybee asserted that no proof of harm
was needed to limit Alvarez’s untruthful speech, and that the general rule
established by the Supreme Court is that false statements of fact are
unprotected, with certain limited exceptions to that principle in certain
contexts. Judge Bybee wrote, “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.”
Judge Bybee also argued that the majority had ignored the
most important consideration in this case: that to strike down this act of
Congress, there must be a reasonable expectation that the act could result in
the unconstitutional prosecution of an individual. Regarding the SVA, Judge Bybee
wrote, “no person has ever been subjected to an unconstitutional prosecution
under [this Act] and, under any reasonable interpretation of the Act, it is
extremely unlikely that anyone ever will be.”
The next step for appeal of this case would be to apply to
the 9th Circuit for rehearing en
banc. If such an application were
made and were granted by the court, the case would be reheard by all the active
judges of the 9th Circuit.
The final step would be to apply to the Supreme Court for certiorari (discretionary review). Because this is a criminal case, only DOJ can
apply for rehearing en banc or for certiorari.
If DOJ fails to appeal within the limited time provided by the
Federal Rules of Appellate Procedure, the decision of the three-judge panel
becomes final.
On September
10, 2010, ROA’s Executive Committee adopted Resolution 10-35(I),
calling upon DOJ to appeal these unfavorable decisions and to continue to
prosecute individuals for falsely claiming to have received military
decorations. Under the ROA Constitution, a resolution adopted by the Executive
Committee is considered valid until the next convention. A resolution on the SVA will be considered
during the National Convention in February 2011. We will keep the members informed about
developments on this important issue.
[1]
Assistant Director of Communications for the Reserve Officers Association. B.A.
in Political Science, 2009, University
of Michigan, Ann
Arbor.
[2] Alvarez’s
MOH claim was suspect on its face, to any person with even a passing familiarity
with recent history. He claimed to have
received the MOH for rescuing the U.S. Ambassador in Iran
in 1987. The hostage crisis in Iran
began in 1979, not 1987, and the United States
did not have an ambassador (only a charges
des affaires) in Iran
in 1979, and he (Bruce Laingen) spent the entire 444-day ordeal as a prisoner
of the Iranian “students.” The U.S.
has not had an embassy or an ambassador in Iran
since the 1979-81 hostage crisis.
Moreover, Alvarez has a long history of making self-aggrandizing
statements that are both false and inherently incredible. For example, he claimed to have played
professional hockey for the Detroit Red Wings.
[3] In a
similar but unrelated case, the United States District Court for the District
of Colorado held the SVA to be unconstitutional. Colorado
is in the 10th Circuit, which sits in Denver.
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