Judging Stolen Valor as an Issue of Free Speech

The Supreme Court is currently deciding the case of U.S. v. Alvarez. Xavier Alvarez was an elected member of a California water district board when he stood up at a public meeting and claimed to have been awarded the Medal of Honor, the highest military award a member of the armed forces can receive.

The problem is that was a lie; Alvarez never even served in the military.

The Stolen Valor Act of 2005 makes it a federal misdemeanor to falsely claim to be a recipient of a military medal or award, and allows for fines and imprisonment of up to one year if the false claim is about the Medal of Honor. The law's intent is to preserve the integrity of such awards and not allow the honor to be diminished, demeaned or dissipated by those who falsely claim to be a recipient.

This law was actually just an effort to put teeth into existing federal statutes already on the books, according to supporters and sponsors of the original bill.

According to others, however, the law is about the First Amendment and is unconstitutional. Hence, the current case before the Supreme Court.

The argument is not about whether Alvarez lied, something his attorneys don’t dispute; it is about whether or not his lies fall under protected speech and the First Amendment.

It is almost laughable the way his defense describes their client. They have called him a liar, a scoundrel, a jerk, an idiot and even cretinous in the briefs they have filed with the Supreme Court. But they say it is his legal, Constitutionally protected right to be all of those things.

I think their choice of pejorative adjectives is intended to illustrate what is and is not protected speech.

The other side of the argument is there are types of speech that do not qualify under the First Amendment. Obscenity, defamation, fraud, incitement and speech integral to criminal conduct are all things that have been deemed as unprotected by the Supreme Court.

This case is the first of its type to be heard by the highest court in the land, though there have been more than 20 prosecutions under this law in federal courts across the country. The rulings have been inconsistent and appeals filed by both those found guilty and prosecutors who have lost their cases in the lower courts.

How the Supreme Court decides this case and, more importantly, how the justices write their decision will have far-reaching effects.

The battle lines are being manned on the side of free speech by the ACLU and more than 20 news and media organizations, which have filed briefs in support of Alvarez’s right to be a liar, jerk and idiot, to paraphrase his defense lawyers. In short, they cite fears of the proverbial slippery slope of government censorship. I see merit in their arguments.

On the other side are the veteran and military support groups and Congress, which passed the law. Their position is there is real harm done by false claims, both to those who have been given these medals and to the ideals the medals represent. I see merit here, too.

Part of me wants this law upheld because those who claim honors they did not hold offend me to my very core. I have never met a Medal of Honor recipient, but I have the honor of knowing many who have received very high honors, awards and medals for their bravery, courage and selflessness on the field of battle, including one young man who received the Distinguished Service Cross, the second highest medal that can be awarded.

Without exception, these young men represent all that is good about our country, our way of life. Equally without exception, they are among the most humble. Each says that they do not feel worthy of the awards bestowed upon them, and immediately turn the conversation to their brothers and sisters in arms who served with them and were there on the day for which their actions were recognized.

This attitude is an integral part of the vetting process when it is being decided who receives an award. This character it represents is exactly what is missing in those who falsely claim these honors.

On the other hand, I fully agree with another controversial Supreme Court decision that supports the right of a certain religious group to protest at military funerals. I abhor everything these people believe and am disgusted by how they twist the precepts of my religion. Yet, I support their right to believe as they do and say what they believe. I marvel at the irony of protesting at the funeral of someone who was willing to die for their rights.

What this case really is about is our form of government. Congress passed a law and the Supreme Court is now trying to decide if that law passes the litmus test of constitutionality. The checks and balances our Founding Fathers envisioned is working, whatever the outcome of this specific case.