Freedom of Speech: Conviction for Lying about Medal of Honor Reversed


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

No one likes a liar, a blowhard, or someone who takes credit for something he doesn’t deserve. But that description applies to most of us at one point or another in their lives. People lie about things to make themselves look better in the eyes of others; people embellish life events (the proverbial fish story about the “one that got away”); and people tend to take more credit than they deserve when they are part of a group success (like claiming credit for scoring the winning touchdown in a flag football game when they actually never caught a pass in their lives). This is the general state of human nature, a mirror reflection of those who tediously grope through mundane, sometimes insignificant, lives trying to simultaneously cope with personal fallibility and certain mortality.


But, as a class, politicians seem to be the worse about lying and taking credit for things they did not do. There are the recent cases of U.S. Democratic Senate candidate and Connecticut Attorney General Richard Blumenthal and Illinois Republican Senate candidate Mark Kirk who have overstated their military records to impress voters about their patriotism and loyalty to country. And then there are politicians like Arizona Gov. Jan Brewer (R-Ariz.) who go far beyond the realm of overstating to outright lying. “Knowing that my father died fighting the Nazi regime in Germany, that I lost him when I was 11 because of that … and then have them call me Hitler’s daughter,” Brewer told the Arizona Republic. “It hurts. It’s ugliness beyond anything I’ve ever experienced.” Problem is that Brewer’s father died in California in 1955 of lung disease.


And this is how we come to write about Xavier Alvarez who, in 2007, won a seat on Three Valley Water District Board of Directors in California. That victory was not enough to appease Alvarez’s need for public recognition. At his first board meeting, July 23, 2007, Alvarez rose to introduce himself to other board members, 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.”


The Ninth Circuit Court of Appeals this past August pointed out that “Alvarez’s misrepresentations during the 2007 water district board meeting were only the latest in a long string of fabrications. Apparently, Alvarez makes a hobby of lying about himself to make people think he is ‘a psycho from the mental ward with Rambo stories.’ The summer before his election to the water district board, a woman informed the FBI about Alvarez’s propensity for making false claims about his military past. Alvarez told her that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his buddies, was able to get the chopper back into the sky.


“In addition to his lies about military service, Alvarez has claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer (who was fired for using excessive force), and to have been secretly married to a Mexican starlet. As the district court observed, Alvarez ‘live[s] in a world, a make-believe world where [he] just make[s] up stories all the time … [T]here’s no credibility in anything [he] say[s].’”


Xavier Alvarez doesn’t sound much different than the average politician in either Washington or Austin. They have a tendency to claim to be what they are not and a propensity for either telling falsehoods or lying by omission. Most of the time these politicians face the wrath of their constituents for their fabrications but Alvarez faced the FBI for his. The federal law enforcement agency obtained a recording of his statements before the water district board where he claimed to have received the Congressional Medal of Honor. Alvarez next found himself facing a two count federal indictment in the Central District of California for violating 18 U.S.C. § 704(b)(c)(1) which makes it a crime to “falsely represent” receiving the Medal of Honor. Alvarez became the first person to be charged and convicted under the Act.


Alvarez sought to have the indictment dismissed on First Amendment grounds, and when those efforts were denied, he pled guilty preserving his right to appeal the First Amendment question. The U.S. District Court sentenced him to three years of probation that entailed 416 hours of community service, fined him $5,000, and ordered him to pay a $100 special assessment—a rather stiff punishment for simply telling a lie. Fortunately for Alvarez, the Ninth Circuit vacated his conviction and sentence as being in violation of the First Amendment’s right of speech.
Historically, the First Amendment has protected free speech, including the right to lie, except in five narrow categories: defamation, obscenity, fraud, incitement, and speech integral to criminal conduct. The appeals court brushed aside the Government’s attempt to cast Alvarez’s improper speech within those five well-defined unprotected categories. In effect, the Government’s position was that “false factual speech” could be criminalized without “any constitutional problem” or “even [without] any constitutional scrutiny.” The Government relied upon the 1974 U.S. Supreme Court decision in Gertz v. Robert Welch, Inc., which expressed the “dicta” that false statements of fact are unprotected speech. As a rule, parties without strong legal or constitutional support for an argument will resort to dicta in a generally futile effort to persuade an appeals court to an untenable point of view. That’s what the Government tried to do in the Alvarez case.


But the Ninth Circuit pointed out that “it has long been clear that the First Amendment protection does not hinge on the truth of the matter expressed … nor does it hinge on the distinction between ‘facts’ and ideas.’” The appeals court pointed to a 1976 U.S. Supreme Court decision in Va. State Bd. Of Pharmacy v. Va. Citizens Consumer Council in which high court held while both falsity and factualness has never enjoyed First Amendment protection for their own sake, the amendment does “protect some falsehood in order to protect speech that matters.” The Supreme Court relied upon its landmark decision in New York Times Co. v. Sullivan handed down twelve years earlier (1964) in which the court eloquently made this point:

“[t]o persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church and state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy … [E]rroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the breathing space that they need to survive.”


Put simply, Alvarez’s right to falsely claim he received the Congressional Medal of Honor is a sacrosanct as the recipients, and their heirs, of the medal to truthfully claim this distinguish symbol of courage, honor and sacrificed—a Congressional distinction that has been awarded nearly 3500 times since its creation in 1861. But this does not mean that all “false factual speech” is protected, and the Ninth Circuit assumed the difficult task of distinguishing between protected and unprotected false factual speech.


The Government primarily relied upon the Supreme Court’s 1988 decision in Hustler Magazine v. Falwell, in which the court held that “false statements of fact are particularly valueless” and Congress may prohibit such statements “unless immunity has been carved out or should be carved out because the First Amendment requires protection of some falsehood in order to protect speech that matters,” for the premise that there should automatically be no protection for false statements of fact unless the party making those statements can demonstrate that they should be protected.


The Ninth Circuit rejected the Government’s rationale, saying it would turn “customary First Amendment analysis on its head.” The appeals court offered two reasons for its rejection. First, it would effectively shift the burden to the speaker to prove that his/her speech is protected from criminal prosecution—something that runs counter to Supreme Court precedent, Philadelphia Newspapers, Inc. v. Hepps, that the Government cannot limit speech without bearing the burden of showing it is justified. Secondly, and most importantly, the Government’s approach in Alvarez would have given “license to interfere significantly with our private and public conversations”—something that also runs counter to Supreme Court precedent such as in Cohen v. California which struck down a state regulation against profanity because “the principle contended for by the State seems inherently boundless … How is one to distinguish this from any other offensive word?”


The appeals court noted that the Cohen/profanity proposition is analogous to a case involving prosecution for falsely claiming Medal of Honor status. “How, based on the principle proposed by the government, would one distinguish the relative value of  lies about one’s receipt of a military decoration from the relative value of any other false statement of fact?” the appeals court asked.
We agree strongly with the general notion that the public “marketplace of ideas” has a legitimate interest in truth-telling, but that interest pales in comparison to the right of those shopping in the same marketplace to tell “little white lies.” Lies lend value to truth. The only way that we truly know we are “free to speak our mind” is if have an inherent understanding that we will not be punished or sanctioned for spreading around non-defamatory false statements.


Still, we strongly endorse the position stated by the Ninth Circuit that “profanity and deliberately false statements of fact rarely contribute meaningfully to public debate over important issues…” But we also subscribe, as did the Ninth Circuit, to the following principle expressed by the Cohen court: “[t]he constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us … We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.”


We understand the anger and outrage of war veterans, “once a Marine, always a Marine,” about blowhards like Alvarez who falsely claim credit of medals of valor, but their right to make those false claims are as equally important as the right of the real recipients of those awards to wear those medals and discuss the human sacrifice associated with them in the public marketplace of ideas. If our Government is permitted to restrict Alvarez’s right to make false claims, then who decides what is the next form of offensive speech will be?


The Supreme Court, in Snyder v. Phelps, recently heard oral arguments in the controversial case involving the leader of the Westboro Baptist Church, Fred S. Phelps, and his church’s practice of protesting at the funerals of fallen military personnel. Albert Snyder, the father of Lance Cpl.  Matthew A. Snyder, filed a defamation, invasion of privacy and infliction of emotional distress lawsuit against Phelps and his church followers for protesting at his son’s funeral. A jury awarded Snyder $10.9 million in October 2007 but the U.S. District Court presiding over the case reduced that judgment to $5 million. The Fourth Circuit Court of Appeals earlier this year threw out the entire case against Phelps, saying he and his followers had engaged in “constitutionally protected speech.”


We sadly agree with the Fourth Circuit, and although we abhor the conduct of Phelps and his fanatical followers just as we are disgusted by Alvarez’s conduct, the need to protect speech is far more important than punishing those who abuse it.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair