Free Speech Groups Say Stolen Valor Act Must Go

     (CN) - In a free society replete with barstool braggarts and tall-tale tellers, there is no place for a federal law that makes it a crime to lie about receiving military honors, according to a raft of briefs to the U.S. Supreme Court.
     First Amendment groups have clamored to support a California politician who was prosecuted under the Stolen Valor Act for fabricating a military history.
     Xavier Alvarez, a former elected member of the Three Valleys Municipal Water District Board in Pomona, Calif., became one of the first persons prosecuted under the 2005 law, which was passed to discourage the world's Walter Mittys and Willie Lomans from lying about winning the Medal of Honor, whose luster Congress feared was being diminished by rampant dishonesty.
     Alvarez admits in his own brief, filed by his public defenders in Los Angeles, that he is an inveterate liar who has juggled a slew of whoppers for many years.
     "He lied when he claimed to have played professional hockey for the Detroit Red Wings," the brief states. "He lied when claimed to be married to a Mexican starlet whose appearance in public caused paparazzi to swoon. He lied when he claimed to be an engineer. He lied when he claimed to have rescued the American ambassador during the Iranian hostage crises, and when he said that he was shot going back to grab the American flag."
     The FBI began investigating Alvarez after he announced in one public meeting that he had won the Medal of Honor after serving in the Marines for 25 years. When it became clear he had done neither, Alvarez was condemned for his lies and prosecuted. A federal judge ordered Alvarez to pay $5,000, serve three years of probation and do community service, but the 9th Circuit reversed on appeal in 2010, ruling that part of the law violated the First Amendment. The Supreme Court eventually agreed to take up the case.
     Attorneys representing media companies, newspapers, publishers, defense lawyers, free-speech advocates and legal scholars have urged the high court to affirm the 9th Circuit's ruling.
     They argue that, in cases where such lies hurt only the teller, the First Amendment protects even blatant falsehoods. The government's involvement in monitoring false statements that lack defamatory intent poses the risk of large-scale censorship, the briefs claim.
     Enforcement of the law would allegedly make it nearly impossible for media to fact-check articles and reports, and it will actually encourage veterans to keep quiet about their service, as it makes no distinction between a false statement told on purpose or one borne from faulty memory.
     They also claim that the act is part of a recent "criminalization explosion," in which Congress, with little debate, has created myriad new crimes over the last several years in a misguided effort to change human behavior.
     The media and the ever-expanding court of public opinion are a better venue for exposing and pillorying liars, according to the groups.
     "The government's defense of the Stolen Valor Act would, if accepted, opens the door to government enforcement of the 'truth', a concept smacking of authoritarianism that is antithetical to the core First Amendment principle that, as general matter, 'the remedy to be applied is more speech, not enforced silence,'" according to a brief filed by the American Booksellers Foundation for Free Expression, the Writers Guild of America West, the Comic Book Legal Defense Fund and other groups. "Fear of public exposure, rather than fear of criminal sanction, is the inducement to truth on which the constitution requires us to rely outside of the traditional First Amendment exceptions."
     "Unless veterans rely on noblesse oblige, this well-meaning but wrongheaded law will have a chilling effect on veterans, the very people the act is intended to honor," the brief adds. "A veteran who truthfully describes his service but falsely claims the receipt of a medal is subject to prosecution and imprisonment for six months. Veterans concerned that their memory of what medals they received might be faulty would be chilled from speaking on the subject: they would, indeed, be well advised not to describe their military honors at all. (Ironically, a person who never served in the military, but who makes false claims of having done so (without claiming to have received medals) would not violate the act.)" (Emphasis and parentheses in original.)
     The Free Speech Coalition says the law is too broad and would push courts into the untenable position of having to evaluate the government's interest in false statements on a case-by-case basis.
     "Petitioner's approach would allow the government to criminalize false speech anywhere, by anyone, to anyone, regarding any subject, regardless of whether the speech caused any tangible harm, so long as the prohibition purportedly serves an 'important' government interest that leaves 'adequate breathing space,'" the group's brief claims. "Petitioner's proposal requires an ad hoc balancing that this court has repeatedly rejected and the First Amendment cannot countenance."
     The government has missed the point by taking the position that unchecked falsehoods would dilute the meaning of military medals, according to the briefs. Jonathan D. Varat of the UCLA School of Law echoed 9th Circuit Chief Judge Alex Kozinski's defense of "white lies" and their place in human nature by suggesting that false speech plays an important role in a free society.
     "False statements about oneself, such as statements targeted by the statute at issue, are particularly imbued with an individuals autonomy of expression," Varat's brief states. "Indeed, they are an essential means by which many people - the Willy Lomans and Walter Mittys of the world - shape their public and private persona. The United States' ability to control how people express themselves in their everyday lives as they negotiate their egos and insecurities should be extremely limited and narrowly circumscribed."
     Depending on the political winds, all manner of statements and opinions could be made criminal under the Stolen Valor Act's precedent, according to the briefs, which make comparisons to the assertions of Holocaust deniers, global warming skeptics and so-called "birthers." But differences in belief, even if those beliefs are false, are a vital part of public debate, he claims.
     "To take one current example, assertions by segments of the population that the current president is not a United States citizen are fundamentally factual statements, yet they are inextricably intertwined with the expression of subjective beliefs concerning the trustworthiness and legitimacy of the current president," his brief states. "A regulation aimed at the prohibition of such statements could, therefore, be a vehicle for idea suppression."
     A brief filed by the Reporters Committee for Freedom of the Press and 23 news media organizations, including the Associated Press, the Los Angeles Times, the Washington Post and The New York Times, suggests that the Stolen Valor Act keeps company with some of the most dictatorial laws ever enacted in America.
     "This expansive view of First Amendment exceptions ignores the key events that have defined press freedom," the brief states. "Were this court to accept the government's premise, it would mark a return to constitutional doctrine amendable to such abuses as the Sedition Act prosecutions during the administration of John Adams and the World War I Espionage Act cases, in which the 'bad tendency' of false speech to cause social ill was sufficient to support censorship. This also would open the door for broad new classes of unprotected speech in which the only limiting principle is whatever degree of 'instrumental protection' the government believes is enough to protect 'speech that matters.'"
     Falsehoods and lies that do not harm others should be exposed by a robust and free press, by citizens empowered by the Internet, and by a free and open "marketplace of ideas," the media groups claim.
     "The purposes of the Stolen Valor Act are better served by reliance on the marketplace of ideas than by criminalizing pure speech," the brief adds. "As Alvarez and others like him have learned to their peril, veterans groups, medal winners, and the press work tirelessly to expose false claims of heroism. These efforts have been aided of late by creation of online databases of legitimate winners such as the Hall of Valor, operated by Gannett's Military Times newspapers. These same groups also expose instances when the government itself is lying about medal winners." (Emphasis in original)
     The Stolen Valor Act is just one of the more egregious of a bevy of recent laws that criminalize nonviolent offenses, according to the National Association of Criminal Lawyers.
     "Congress is in the midst of a criminalization explosion," the group's brief claims. "Between 2000 and 2007, it has, on average, passed a new criminal law for each week of the year. In 2005-2006 alone, the 109th Congress proposed almost two new non-violent criminal offenses for each day it was in session."
     "The speaker's intent in making the false claim is irrelevant, and there are no exceptions for theatrical performances or satire," the brief states. "Even innocent mistakes can result in imprisonment. In these respects, the act is unique in the United States Code. The public's primary safeguard against prosecution of innocent mistakes, harmless misrepresentations, and theatrical performances is the government's promise that it will carefully exercise its discretion in deciding when and against whom to bring charges. That is of little solace and no constitutional significance. Despite the staggering breadth of the law, there was no serious debate about its constitutionality as it made its way through Congress."
     The Supreme Court's ruling in the case will likely be closely watched, as the 10th Circuit recently reached a different conclusion that its colleagues in the 9th Circuit.
     Last month, that court upheld charges against a man who founded a veteran's group and lied about winning a Purple Heart and a Silver Star in the Iraq War.
     "Utterances criminalized by the act are objective and verifiable, and they are particularly valueless under First Amendment principles," Judge Timothy Tymkovich wrote for the 10th Circuit majority. "Although military affairs are undoubtedly matters of public importance, lying about receiving military medals does nothing to contribute to any conceivable public debate. The Stolen Valor Act simply does not punish political speech, factually correct statements, artistic expressions, or opinions of any sort."

Attorneys for the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the First Amendment Lawyers Association and the Thomas Jefferson Center for the Protection of Free Expression also filed briefs on behalf of Alvarez.