Saturday, April 23, 2011

A California Appeals Court Upholds the Ruling That We Have the Constitutional Right to Lie

I will be the first to admit that I don't always keep up with the news or current events but that doesn't mean that I'm not paying attention to what's going on in my country even though there are times when I think I would prefer to stay blissfully unaware as we stroll down an extremely liberal path in order to not offend anyone in any way, shape, or form or restrict one's rights under the Constitution of the United States which is open to very broad interpretation depending on which side of the court you're sitting on. That said, I have recently been reading up on a ruling by the 9th U.S. Circuit Court of Appeals in California that seems to have deemed it constitutionally acceptable to lie.  As a matter of fact, based on this ruling not only does it seem like it's constitutionally acceptable to lie but that it's all part and parcel of being human and it's to be expected.  Well ... that pretty much goes against anything I was ever taught by my parents but I guess the 9th U.S. Circuit Court of Appeals and Chief Judge Alex Kozinski know better.

The law in question for this particular decision is the 2005 Stolen Valor Act which was designed and passed to "enhance protections relating to the reputation and meaning of the Medal of Honor and other military decorations and awards, and for other purposes." The Act was first introduced in the U.S. House of Representatives on July 19, 2005 by Representative John Salazar, a Democrat from Colorado, as House Resolution 3352 and then introduced into the Senate by Senator Kent Conrad, a Democrat from North Dakota, on November 10, 2005, as S.1998. The Bill was passed in the Senate by Unanimous Consent on September 7, 2006 and in the House of Representatives on December 6, 2006 before it was signed into law by President George W. Bush on December 20, 2006.

The Enrolled Bill [Final as passed by both House and Senate] (which you can read in full here) provides that:
"Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both."
The final Bill contained an "Enhanced Penalty for Offenses Involving Certain Other Medals" which amended the Bill by adding:
"If a decoration or medal involved in an offense described in subsection (a) or (b) is a Distinguished-Service Cross awarded under section 3742 of title 10, a Navy Cross awarded under section 6242 of title 10, an Air Force Cross awarded under section 8742 of section 10, a Silver Star awarded under section 3746, 6244, or 8746 of title 10, a Purple Heart awarded under section 1129 of title 10, or any replacement or duplicate medal for such medal as authorized by law, in lieu of the punishment provided in the applicable subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both."
In a nutshell without all of the legal mumbo-jumbo, the Stolen Valor Act was introduced and designed to protect the reputation of military medals and awards so that people couldn't falsely claim to have earned them in order to benefit themselves.  Since learning from our mistakes in how veterans and military members were treated before, during, and after the Vietnam War, the country has diligently worked on a resurgence in military pride and those who have earned military awards - or even served in the military - are treated much better than they were when thousands of troops came home from Vietnam and were met by either the sound of crickets chirping at airports or contempt and derision by those who thought the war was wrong. Today troops are welcomed home with a great deal of fanfare and are thanked for their service to the country rather than treated like lepers and pariahs of society. Granted, this doesn't change the way that my father and thousands of other veterans were treated when he came home from Vietnam but at least those who defend our country will now - hopefully - never have to feel like he did when society thought it was okay to take their anger of the war out on the soldiers, sailors, airmen, and marines who answered the call to duty.

In getting back to topic, though, in introducing the Bill to Congress, Senator Conrad stated that, "there are some individuals who diminish the accomplishments of [military] award recipients by using medals they have not earned. These imposters use fake medals – or claim to have medals that they have not earned – to gain credibility in their communities. These fraudulent acts can often lead to the perpetration of very serious crimes.” Or provide the person falsifying the information with an over-inflated sense of worth and a misplaced gratitude from a nation that now wants to acknowledge our military members rather than shun them. The intention of the Bill was to adequately protect “the reputation and meaning of military decorations and medals." In other words, if you didn't earn them, then you sure the heck shouldn't be wearing them and falsely telling people what a hero you are/were.

Unfortunately, it didn't take long for the Stolen Valor Act to be ruled unconstitutional and a violation of a person's First Amendment Right to Freedom of Speech - the first time on July 16, 2010, when a federal judge in Denver ruled the Stolen Valor Act is "facially unconstitutional" in the case of USA v Strandlof (Strandlof - using the name Rick Duncan- claimed to be a wounded and decorated Iraq War Veteran who had been awarded a Purple Heart on four separate occasions in 2006 and 2009 and falsely represented that he had been awarded a Silver Star on one occasion in 2009) and again on August 17, 2010 in California in USA v. Xavier Alvarez (Alvarez had conditionally pleaded guilty to one count of falsely verbally claiming to have been a U.S. Marine who had received the Congressional Medal of Honor during a Thee Valley Water District Board meeting in Ponoma but later appealed after being convicted and fined $5,000 and sentenced to three years of probation which required 416 hours of community service at a veterans hospital). In a 2-1 decision by the 9th U.S. Court of Appeals, the majority said there's no evidence that such lies harm anybody and there's no compelling reason for the government to ban such lies.

Excuse me?

In the court decision which was filed on August 17, 2010, majority Judge Milan D. Smith, Jr. stated that, "The right to speak and write whatever one chooses - including, to some degree, worthless, offensive and demonstrable untruths - without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment." Dissenting Judge Jay S. Bybee however felt that Alvarez had been convicted under a law that did not violate his Constitutional Rights and that “the right to lie is not a fundamental right under the Constitution” and “the erroneous statement of fact is not worthy of constitutional protection.”

The majority of the judges felt that by blatantly lying about his service time and medal earned that Alvarez intended no malice and caused no harm but was just your basic run-of-the-mill liar therefore they stated in their ruling that, "We have no doubt that society would be better off if Mr. Alvarez would stop spreading worthless, ridiculous and offensive untruths but, 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."

I really need to take exception to this as whether or not there was malice intended and he "meant no harm" what Alvarez did was just out-and-out wrong. To misrepresent yourself by stating that "I’m a retired Marine of 25 years. I retired back 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." is truly pathetic. Do his lies take away from the distinguished career of any other Marines or uniformed service personnel? Well, maybe not directly but that shouldn't matter as the law is the law and it clearly states that "Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ..."  which is exactly what Alvarez did.  Alvarez knew he had violated the law and plead guilty but it wasn't until he was convicted and sentenced that he opted to appeal.  He knew he was lying, he knew that it was wrong, and yet he did it anyway but now according to the 9th Circuit Court in California, that's perfectly okay.

Following the 2-1 ruling in favor of it being okay to lie and still be protected by the Constitution, a strong dissent was filed by other judges urging that the case be reheard but on March 21st of this year a majority of judges in the U.S. Court of Appeal for the 9th Circuit refused the request for a rehearing en banc (the hearing of a legal case where all judges of a court will hear the case rather than a panel of them).  That decision allowed the panel's ruling to stand. In denying the right for the case to be reheard, 9th Circuit Chief Judge Alex Kozinski stated, "It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive."

"If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he's Jewish or the dentist who assures you it won't hurt a bit," Kozinski wrote in defense of the First Amendment. "Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic' and 'I didn't inhale' could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship."

You can read the entirety of the Order Denying Petition for Panel Rehearing and Hearing En Banc at the 9th Circuit Court's website but most of it seems to be a lot of legal-ese to basically say that the Constitution guarantees you your right to lie - at least in Chief Judge Kozinski's honored opinion as according to him, "Saints may always tell the truth, but for mortals living means lying."

Fortunately, Kozinski's opinions aren't necessarily law at this point as the U.S. Attorney's Office in Los Angeles is deciding whether to take the 2-1 Appeals Court decision to the Supreme Court and I get the feeling that it will definitely find itself before the highest court in the land as with the dissenting judge (whose opinion was joined by six other judges) writing that "the decision puts a match to 40 years of Supreme Court decisions" how could it not? I get the feeling you don't put a match to Supreme Court decisions without the Supreme Court having something to say about that. At least I would sure hope not.

In my humble opinion, this is a joke and a travesty and just another example of how the law can get twisted around depending on who is sitting behind the bench.  The Stolen Valor Act was implemented for very good reasons and it should be enforced for those same reasons.  If there hadn't been a need for a law to be enacted then one never would have been but obviously there was cause enough for the law to not only be suggested but put through and onto the books.

The main thing that those dishonest individuals who are breaking the Stolen Valor Act tend to forget is that when you get right down to it, those men and women who have legitimately earned medals in military service are generally the last ones to talk about those medals because chances are really good that they never wanted them in the first place as who wants to go through what they did to get them?

My father came home from Vietnam with a Purple Heart, a Bronze Star, shrapnel that was embedded in his leg, and exposure to Agent Orange which ultimately put him in his grave long before he should have been there.  As a child I distinctly remember him saying that he didn't want to go to the ceremony where he received those medals as he didn't want them and I can guarantee you that we never ever heard him talk about them - never mind see them come out of the drawer in his dresser where they were kept.

It's been my experience as both an Air Force brat, a member of the Air Force myself (and please don't thank me for my service as I served during a time of peace and did nothing to earn those thanks), and the friend of many men and women who have served or do serve with honor that real heroes don't talk about themselves - especially to gain admiration or a foothold in life - and it ticks me off that the courts in our country seem to think that it's okay to protect those who lie about a service career or accomplishments they never achieved during that career in order to make themselves look better for whatever reason.

It's just not right and I sincerely hope that if/when this case reaches the Supreme Court that the judges there take into account what dissenting Judge Jay S. Bybee wrote in his opinion of the case in that it was George Washington himself who enacted the very first Stolen Valor Act at Newburgh on the Hudson on August 7th, 1782 shortly after he created the Badge of Military Merit which was the predecessor to the Purple Heart.
"The General ever desirous to cherish virtuous ambition in his soldiers, as well as to foster and encourage every species of Military merit, directs that whenever any singularly meritorious action is performed, the author of it shall be permitted to wear on his facings over the left breast, the figure of a heart in purple cloth, or silk, edged with narrow lace or binding. Not only instances of unusual gallantry, but also of extraordinary fidelity and essential service in any way shall meet with a due reward. Before this favour can be conferred on any man, the particular fact, or facts, on which it is to be grounded must be set forth to the Commander in chief accompanied with certificates from the Commanding officers of the regiment and brigade to which the Candadate for reward belonged, or other incontestable proofs, and upon granting it, the name and regiment of the person with the action so certified are to be enrolled in the book of merit which will be kept at the orderly office.

Should any who are not entitled to these honors have the insolence to assume the badges of them they shall be severely punished. On the other hand it is expected those gallant men who are thus designated will on all occasions be treated with particular confidence and consideration."*
I hope that no one had the insolence to lie about their service to our fledgling country back when the Badge of Military Merit was instituted but if they did, I also hope that they were met with a swift and appropriate justice without needing a court to determine whether they had done something wrong or not.

To quote Judge Bybee and his dissenting opinion from the Alvarez case:
"Such false representations not only dishonor the decorations and medals themselves, but dilute the select group of those who have earned the nation’s gratitude for their valor. Every nation needs to honor heroes, to thank them for their selflessness and to hold them out as an example worthy of emulation. The harm flowing from those who have crowned themselves unworthily is surely self-evident."*
Hear, hear to President Washington and Judge Bybee both and here's to hoping that the Supreme Court can turn this travesty of justice around before too many more people like Mr. Strandlof and Mr. Alvarez think it's okay to fabricate stories of service and heroism in order to feel better about themselves while posing as or declaring  themselves to be heroes that they are not nor ever will be.


  1. Fraud is fraud. He benefited from the fraud. The lie was just the catalyst for the fraud. It's that simple.
    How did this get so turned around?

  2. P.S. GREAT post, Linda. I appreciate the time you spent on this to keep us informed.

  3. I don't like it, but I understand the legal reasoning behind the ruling. I think they need to go back and rewrite the law in such a way as to not hinge on speech but rather on fraud. Need a good Constitutional expert for this one.

  4. Apparently Blogspot doesn't like what I have to say any more than you would as it just deleted my entire 1000 word reply... Perhaps thoughts are best kept to ones self lest they be deemed reprehensible and therefor criminal...

  5. Very well written, Linda. I know this issue is close to your heart.

    The trouble with LAW is... wait, there's way too much trouble with Law and Lawyers to list! And I say that with as much love as I can for a friend who happens to practice law and my niece Holly who is about to start graduate school to become an attorney.

    My comment is going to go in a whole 'nother direction rather than address this issue directly as I've become jaded and cynical on the subject of law.

    At the risk of repeating myself, lawyers will be the damnation of our country and this world. They invented fine print just to screw with us.
    And one tiny word changes EVERYTHING you think you may understand about any legal document, be it 2 pages or 1000. One CAREFULLY PLACED word, hidden in the legalese haystack!

    Just because lawyers can write a law that says something is Legal does not in fact make it Right, never mind honorable or acceptable. Conversely, saying something is Illegal certainly does not mean certain people will find anything at all wrong with said something or they plain just don't care about the legalities.

    Even if they do find this law to be in fact Constitutional, then it becomes like every other law... Good luck enforcing it, legislating it and stopping a large number of jerks and dipshidiots from performing acts that the majority of people will agree is wrong, dishonorable, despicable or unconscionable. Even if the law of the land says it's legal.

  6. Stolen Valor Act: It's a shame that a law had to be enacted in the first place. To lie about one's service is reprehensible and should not be condoned. As far as the Constitutionality of the law, I am far from an expert but it seems very simple to me. You tell the truth and don't lie!!! You obey the law. How can telling a lie infringe on free speech??? It appears that we're taking this to such a degree that it is infantile.
    As for the Ninth Circuit - it's my belief that nothing good or just comes from that body of malcontents. They are smarter and more knowledgeable than any court in the country. Or in their own minds....Don't forget - we, the people, are such idiots we cannot figure out things for ourselves and need a court filled with "supreme beings" to make judgments for us. That's the reason that the majority of their decisions are ultimately overturned.
    This was a wonderful, heartfelt post, Linda - as usual. And I'm with you 100%!
    p.s. Once upon a time, a man's worth was made on a handshake.

  7. Great post, Linda. The truth is the truth and laws that pervert any truth, well, are just not right.

    Kudos to you, and hugs as well...

  8. this is one of those frustrating instances where common sense isn't being applied
    I think it's horrible to lie about serving in the military and receiving any honor
    yet would this law also make it OK to put me in jail because I pad my resume

  9. No Dianne, this law wouldn't get you arrested because the Stolen Valor Act specifically addresses lying about receiving any military medals and not about anything else.  Where I think the judges got off track on this is because rather than address the specifics of the law itself, they were talking about lying in general. 
    IF there is a law in place that says that you will be arrested and prosecuted IF you break that specific law that has been put in place, then you should be arrested and prosecuted for breaking that specific law and not for anything else. 
    When it was made, the Stolen Valor Act was very specific that anyone who verbally falsified receiving any medals would be breaking that law and that's exactly what both of these jamokes did yet the judges chose to uphold their "Constitutional right to lie".   They weren't lying about working late or anything like that, they were lying about military honors that they didn't receive and that was specific to the Stolen Valor Act. 
    It seemed pretty black & white, cut & dry to me but then again I'm not a lawyer! 
    I am however the daughter of a veteran and it pisses me off!

  10. California is turning into a cesspool very rapidly. I used to be so proud of this state. Not anymore. Craziness abounds. Sigh.

    Have a terrific day. Happy Easter too. Hugs. :)

  11. Interesting post Linda.

  12. The right to lie? I thought that was perjury. What do I know?

  13. I hadn't heard of this ruling. I could see this being perfect fodder for shows like The Colbert Report and the Daily Show where they ridicule strange, weird, or just plain stupid things like this.

    It just shows the increasing power of lawyers and judges (and many politicians) to find ways to get around the intent & spirit of the law.

    Not pleasant to consider what the future will bring if it keeps up like this!

    Wanda T.
    Site owner: Great Mothers Day Gifts


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