Attorney Rees Lloyd
August 29, 2010
Congress since 1948 has found that it is in the public interest to protect the reputation and meaning of the Medal of Honor – and to protect the public from being deceived – by imposing criminal penalties against unscrupulous imposters who falsely represent that they have received the Medal of Honor or other medals of valor. The Stolen Valor Act of 2006 (18 U.S. Code Section 704) is the latest enactment providing those protections.
However, the federal Ninth Circuit Court of Appeals, the most reversed circuit in the country, has now declared the Stolen Valor Act to be an unenforceable, unconstitutional violation of First Amendment “freedom of speech.” That is, two judges on the 9th Circuit (the third dissented) have effectively created a constitutional “right to lie” as a general rule of First Amendment jurisprudence.
While the greatest detrimental impact of this precedent-setting 9th Circuit decision creating a constitutional “right to lie” falls upon the eighty-eight living Medal of Honor recipients and their families, and the families of all the deceased Medal of Honor recipients, the decision has wide and dangerous implications. As just one example, the majority decision, as the dissent points out, raises the question, among others, of whether illegal aliens will now have a constitutional “right to lie” with impunity about their presence in the country.
The immediate impact of the “right to lie” decision is that miscreant frauds are now possessed of a “First Amendment right” to knowingly and deliberately lie, and are free to deceive the public into believing, that they have not only served in defense of the nation in military service, but have received the Medal of Honor, and other medals of valor.
There is no shortage of such miscreant frauds. Vietnam veteran B. G. Burkett has done a valuable public service, assisted by investigative journalist Glenna Whitley, in exposing hundreds of frauds in their book, “Stolen Valor: How the Vietnam Generation Was Robbed of its Heroes and its History.”
Major General Patrick Henry Brady (USA, ret.), is a genuine Medal of Honor recipient as a “Dust Off” helicopter ambulance pilot in the Vietnam War. He is a past president of the Medal of Honor Society. Gen. Brady is also, among other things, author -- along with his daughter, former Army Captain Meghan Brady Smith, herself a Bronze Star recipient in the war against terrorism in Iraq -- of the recently released book, “DEAD MEN FLYING: The Legend of Dust Off, America’s Battlefield Angels,” which tells the untold story of humanitarian acts by American GI’s in Vietnam. Gen. Brady told me in an interview:
“This new 9th Circuit decision invalidating the Stolen Valor Act as an unconstitutional violation of ‘freedom of speech,’ and creating a right to lie about receipt of the Medal of Honor and other medals of valor, is a matter of great concern. How do we, as a nation, protect the meaning and integrity of the Medal of Honor from demeaning exploitation by frauds who deceive the public by stealing the valor of others, most of whom are now deceased, and unable to defend their honor?” he asked.
“I just can’t understand how anyone, including judges, can believe that General George Washington and the Founding Fathers intended to create a First Amendment Constitutional ‘right to lie’ about military service and receiving the Medal of Honor or other medals of valor. It just defies common sense,” General Brady said of the 9th Circuit Court of Appeal decision nullifying the Stolen Valor At.
“I hope a way will be found by Congress, and the Executive Branch, to protect the meaning and integrity of the Medal of Honor, and other medals of valor, from abuse and exploitation by charlatans under this 9th Circuit decision,” he said.
The 2-to-1 decision striking down the Stolen Valor Act and creating a constitutional “right to lie” was rendered in the case known as U.S. vs. Xavier Alvarez, 9th Circuit Court of Appeal Case No. 08-50345, filed on August 17, 2010. [It is available on the Ninth Circuit website.] It was written by Judge Milan Dale Smith, Jr. (a lawyer who is a native of Pendleton, OR, but practiced law in Los Angeles), joined by Judge Thomas G. Nelson (an Idaho lawyer, the only one with military service, i.e., Army Reserve, 1965-1968).
Concisely stated, their majority decision holds that the Stolen Valor Act is unconstitutional because it punishes “speech,” i.e., lies about receipt of the Medal of Honor and other medals of valor, but does not require evidence that someone suffered actual “harm” as a result.
Judge Jay S. Bybee dissented in a detailed opinion. In it, he traces Supreme Court precedent establishing a general rule that false statements of fact i.e., “lies,” are not constitutionally protected speech unless they fall into exceptions to that general rule. He argues that the majority decision reverses that rule, and creates a general rule that false statements, i.e., “lies,” are constitutionally protected speech unless they fall into exceptions rendering them unprotected.
Further, Judge Bybee warned that the new rule, an effective constitutional right to lie, has an impact far beyond the Stolen Valor Act. This includes possibly nullifying statutory prohibitions against illegal aliens making false statements of facts pertaining to their status in the country.
That is, Judge Bybee warned in dissent: “Numerous statutes are called into question by the majority’s opinion…statutes that punish false statements and do not appear to require proof of harm,” he wrote, citing, among others: “18 U.S.C. [Section] 1015(a) (punishing ‘any false statement under oath, in any case, proceeding, or matter relating to…naturalization, citizenship, or registry of aliens’)….”
The Stolen Valor Act decision overturned the conviction of Xavier Alvarez. He is a Democrat Party politician who was elected to the Three Valley Water District Board in San Bernardino County, CA. There he claimed to be a “retired marine” who had been “wounded” in combat and had been awarded the “Medal of Honor.”
He was originally exposed by a real former Marine, Melissa Campbell. She held a community relations job in which she came in contact with Alvarez, who regaled her with his tales of service in the Marines and receipt of the Medal of Honor. She was so impressed that she texted her husband how thrilled she was to be meeting with a Medal of Honor recipient. Her husband texted back that he had checked out Medal of Honor recipients on the internet, and there was no “Xavier Alvarez.” Former Marine Campbell then inquired of fake Marine Alvarez where he served, arousing his suspicion that he was about to be exposed as a fraud. Alvarez, therefore, then used his Water Board position to have Campbell fired. That is, Alvarez complained to her employer that she had disrespected him, a member of the Water Board, by her questions. She was fired.
I became involved when I was contacted to provide pro bono representation to Campbell, and to verify whether Alvarez’ further claim on the Water Board website that he was a member of the American Legion was true. It was another lie. It was removed from the website after I threatened to sue. (While I agreed to represent Melissa Campbell pro bono over her wrongful discharge, she ultimately decided she did not want to sue for personal and familial reasons.)
After being exposed, Alvarez admitted his claims of military service and receipt of the Medal of Honor were false – but refused to resign his position on the Water Board. When prosecuted, he pleaded guilty to violation of the Stolen Valor Act, but on condition that he could appeal the conviction on the basis the Stolen Valor Act violates the First Amendment freedom of speech. He was represented at taxpayer expense by the Federal Public Defender. The ACLU supported his constitutional challenge to the Stolen Valor Act as a violation of “free speech.” The ACLU supported also a second challenge in a Colorado case which resulted in a U.S. District Court decision holding the Stolen Valor Act unconstitutional.
Since the Ninth Circuit is a court of precedent, its decision renders the Stolen Valor Act unenforceable in all eleven states covered by the Ninth Circuit. Thus, miscreant cretins like Xavier Alvarez are now free to lie that they are among the most honored of American veterans, holders of the Medal of Honor. However, in Alvarez’ case, he will have to do it from his prison cell. He was also convicted of unrelated fraudulent acts in his position as elected Water Board Director, and is currently doing time in prison for those corrupt acts.
Where does all this leave the real American military heroes legitimately holding the Medal of Honor? It leaves them, the Medal of Honor, and other medals of valor, without the protection of the law.
There are only eighty-eight (88) living recipients of the Medal of Honor, among more than 300-million Americans. We 300-million Americans owe to those eighty-eight living American holders of the Medal of Honor – and to all of those who have received the Medal of Honor in all the wars – a debt beyond repayment.
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The least we can do is to stand with them and demand that Congress act by emergency legislation or otherwise, and demand that the Executive branch act by litigation, to preserve the protections of the Stolen Valor Act, and reject the notion of contemporary lawyers sitting as judges that General George Washington and the Founding Fathers intended to create in the First Amendment a constitutional “right to lie” about receipt of the Medal of Honor and other medals of valor in military service to the nation.
© 2010 Rees Lloyd - All Rights Reserved
REES LLOYD is a longtime civil rights attorney and veterans activist whose work has been honored by, among others, the California Senate and Assembly, and numerous civil rights, workers rights, and veterans rights organizations. He has testified as a constitutional expert at hearings before the U.S. House and Senate representing The American Legion.
He has been profiled, and his work featured, by such varied print media as the Los Angeles Times and American Legion Magazine, and such broadcast media as ABC's Nightline and 20/20, Fox News In The Morning, and, among others, by Hannity. His writings have appeared in a variety of national, regional, and local newspaper, magazine, and other publications. He is a frequent radio commentator, and a sought after speaker.*
[*For identification only. The views expressed here are solely Rees Lloyd's and not necessarily any person, entity or organization he may otherwise represent. ]