Stolen valor: Case raises First Amendment issues

On Wednesday, the U.S. Supreme Court heard a case in which justices are expected to decide whether the Stolen Valor Act is an unconstitutional regulation of free speech, or an appropriate means to stop false claimants from devaluing the military's highest honors.

The court previously has designated a number of categories of speech as undeserving of full First Amendment protection, including obscenity, incitement to imminent harm, libel and defamation, and fraud. But in most of those areas, the speech in question causes a concrete injury -- it advances an undertaking that's harmful or criminal in its own right. The Stolen Valor Act, on the other hand, is far less carefully targeted. Any false statement claiming receipt of a medal may be punished.

The Obama administration is urging the court to uphold the restriction as a valid regulation of a kind of speech that lacks significant constitutional value. But the Bill of Rights does not say Congress shall make no law infringing the freedom of the people to engage in "kinds of speech that the Congress finds 'valuable.' "

The specific case in question involves one Xavier Alvarez, who stood up and introduced himself at a California water district meeting in 2007, saying, "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."

It turns out, however, that Mr. Alvarez never served a day in the U.S. military and was awarded no medals.

Mr. Alvarez was indicted by federal authorities for violating the Stolen Valor Act of 2005. His lawyer admits Mr. Alvarez was lying, but argues Americans have a free-speech right to make false and outrageous claims about themselves without facing criminal prosecution. A federal judge upheld the indictment; an appeals court panel reversed.

Claiming high military honors which were never earned is indeed offensive. The medals worn by the survivor today are worn in honor of the courage and sacrifice of many who will never march in another parade. To claim such honors without justification is despicable.

But even if the accused is an obnoxious buffoon, the defense here is correct. This is a slippery slope. Who can foresee when anyone from a stand-up comic to a writer of satires may claim for comic or literary effect -- or even create a fictional character who claims for himself, speaking in the first person -- falsified military honors?

His attorney says Mr. Alvarez did not go unpunished; he was pilloried in his community as an "idiot" and a "jerk" after his false statements were exposed, exactly as he should have been. Mr. Alvarez also claimed to have played hockey for the Detroit Red Wings. Should he be prosecuted for that?

Should the court give this law its seal of approval, what further speech ban will that precedent be used to justify next? Today in Saudi Arabia, a young blogger is held in jail awaiting trial and a possible death sentence for "tweeting" some offhand remarks, probably intended to be humorous, in which he pretended to have a disrespectful dialogue with the prophet Muhammad.

Johnathan Libby, attorney for Mr. Alvarez, warns that if his client loses his case, the government may soon be investigating the veracity of a broader range of facetious statements. And that is, indeed, the greater danger.