Does the First Amendment Protect the “Right To Lie?”

January 5, 2008

In a unique defense, a relatively minor politician, charged with lying about his Military service and award of the Congressional Medal of Honor, is claiming his lies are “protected speech” under the First Amendment to the United States Constitution.

Recently elected to represent Pomona, California in the Three Valleys Municipal Water District, 49 year-old Xavier Alvarez has been charged under the Stolen Valor Act of 2005 with falsely claiming to have served in the United States Armed Services and with being awarded the nations highest award for valor in combat, the Congressional Medal of Honor.

Alvarez, at a July meeting of the Walnut Valley Water District board, was recorded saying,

“I'm a retired Marine of 25 years, I just retired in 2001. Back in 1987 I was awarded the Congressional Medal of Honor. I got wounded many times, at the same time.”

Nicknamed “Rambo,” after the Sylvester Stallone movie series for exploits he has claimed around Pomona social and political circles, Alvarez has been bragging about false exploits to friends and acquaintances for some time, before being tripped up by the usual conflicting claims false veterans and phony war heroes make.

Initially denying he ever made the false claims, Alvarez eventually admitted to his lies, was censured by the Water Board, refuses to resign and has been charged under the Stolen Valor Act, a misdemeanor that carries a maximum sentence of up to one year in jail.

Ordinarily this would be a closed matter, Alvarez joining other phonies prosecuted for making false claims of Military Valor and being awarded honors they are not entitled to. It would not even be newsworthy nationally, as Alvarez is a very minor public official. However, his attorney has filed a Motion to Dismiss that could carry staggering consequences to the nation, if upheld I feel.

Brianna J. Fuller, Alvarez’s attorney, filed the motion late in December. The motion states,

“Falsehoods are not outside the realm of First Amendment protection, and therefore restrictions on false statements must be supported by a strong government interest and must be directly related to that interest. The Court's scrutiny of the law should be especially demanding here, where the statement was made by an elected official, during a public meeting, on an issue of public concern: his qualifications for office. The Government's stated interest in this law, protecting the reputation of military decorations, is insufficient to survive this exacting scrutiny.”

Although I am not an attorney, I am deeply troubled by the opening words of the motion, “Falsehoods are not outside the realm of First Amendment protection.”

If the motion were to be upheld, I foresee opening a Pandora’s Box of politicians, at all levels of government and from all party’s, making even more brazen false claims than many do already.

I also fear it could overturn the Stolen Valor Act, allowing phonies to delude people of heroics they never committed, all for personal and political gain once again.

If any court rules “Falsehoods are not outside the realm of First Amendment protection,” could perjury charges eventually fall by the wayside and oath’s in court become obsolete? Yes, that might be a stretch, but look at what else society now condones that was once considered wrong.

Federal Prosecutors have filed in opposition,

“Deliberate falsehoods are not protected by the First Amendment. It is only in the realm of ideas, unlike the case here which involves a readily verifiable misstatement of fact, that falsehoods garner any free speech protection.”

Scheduled to be heard on Jan. 14 in Los Angeles federal court by U.S. District Judge Edward Rafeedie, prosecutors have said,

“If the case against Alvarez is thrown out on constitutional grounds, the government would take a ‘long hard look’ at filing an appeal.”

Of importance to me, how have we devolved into a nation where our courts would ever consider that blatant lies, lies told for personal and political gain, at the expense of others, would be “protected speech under the First Amendment?”

God help us if this is what we have become.

Lew