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Justices Take on Medal Lies; Respect for Military Honors Competes With Worries About Government's Reach
By JESS BRAVIN
Staff Reporter of THE WALL STREET JOURNAL.
22 February 2012
Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved.


WASHINGTON—Supreme Court justices expressed reverence Wednesday for the valor represented by U.S. military decorations, but some questioned whether falsely claiming to have received a medal should be a federal offense.

A California man convicted of falsely claiming to be a Medal of Honor recipient was sentenced to three years of probation, 416 hours of community service and a $5,000 fine under the Stolen Valor Act, a 2006 statute Congress passed "to protect the reputation and meaning" of military honors.

A federal appeals court threw out the conviction, finding that the First Amendment didn't envision a "powerful government" policing everyone's speech for "worthless, offensive, and demonstrable untruths."

At the high court, the government's lawyer, Solicitor General Donald Verrilli, told the justices that the law is a "targeted statute that's designed to deal with a particular" problem: "the misappropriation of the government-conferred honor and esteem" a decoration represents. The law didn't criminalize all lying, just "a calculated, factual falsehood" about oneself, said Mr. Verrilli.

Mr. Verrilli said the issue was a "big deal" and Congress was responding to cases where "one charlatan after another" falsely boasted of earning medals.

"Well, where do you stop?" said Chief Justice John Roberts, noting that Congress could have an interest in ensuring truthful representations about many personal facts.

For example, he suggested Congress might criminalize lying about having a high-school diploma, while Justice Elena Kagan wondered, "How about extramarital affairs?"

Several justices observed that politicians have been known to bend the truth about their qualifications. If such misstatements were crimes, "then you have people in political campaigns suddenly worrying that the U.S. attorney is going to come in and start indicting" candidates, said Justice Stephen Breyer.

Jonathan Libby, a deputy federal public defender representing defendant Xavier Alvarez, also faced tough questioning. Justices ridiculed Mr. Libby's suggestion that lies may have First Amendment value because "there is the value of personal autonomy" and they help people create their "own persona."

"Do you really think that there is First Amendment value in a baldfaced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona?" said Justice Samuel Alito. "Gee, I won the Medal of Honor. I was a Rhodes Scholar, I won the Nobel Prize."

While such lies may be contemptible, Mr. Libby said the harm they caused was too "diffuse" to punish with a criminal conviction. "Mr. Alvarez, whether or not he in fact was sentenced to a crime, he still was exposed for who he was, which was a liar," he noted.

The statement that got Mr. Alvarez arrested came at a 2007 meeting of a local water board, where he served as an elected member. "I'm a retired Marine of 25 years," he said, adding, "Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy." Mr. Alvarez's lawyer acknowledged the statements were false.

That was only one of Mr. Alvarez's many fantastic claims; a lower court observed that he lived in "a make-believe world" where he once "played hockey for the Detroit Red Wings," rescued "the American ambassador during the Iranian hostage crisis" and "secretly married … a Mexican starlet."

Some justices hinted they were looking for ways to uphold the Stolen Valor Act without endorsing a broader criminalization of fibbing.

Dow Jones & Company, publisher of The Wall Street Journal, was among more than 20 news organizations that filed a friend of the court brief contending that the Stolen Valor Act violates the First Amendment.

Justice Anthony Kennedy suggested the Stolen Valor Act could be upheld by treating military decorations akin to trademarks, as Congress already has done in giving the U.S. Olympic Committee exclusive rights to the word Olympics and its symbols.

A decision in the case, U.S. v. Alvarez, is expected before July.
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