A three-judge panel of the 9th U.S. Circuit Court of Appeals on Tuesday sided with former Three Valleys Municipal Water District board member Xavier Alvarez, calling the Stolen Valor Act unconstitutional. The 3-year-old federal law makes it a crime to lie about receiving any awards and medals from the U.S. military.

The decision angered some including Sgt. Steven Davis, a Marine based at Camp Pendleton.

"My initial thoughts were disappointment in the court system and of course, a bit of frustration as one who currently serves and one who lost some friends ... some friends who served gallantly," Davis said. "To hear someone boasting receivership of such a medal is a total slap in the face."

Davis said this isn't a free speech issue because he considers Alvarez's claims fraudulent and slanderous.

"What's to say I can't say I walked on the moon and I want press attention," Davis said. "I bet Neil Armstrong and Buzz Aldrin might have an issue of me claiming such a feat."

In 2007, Alvarez claimed during a water district meeting that he received the Medal of Honor, the highest military distinction in the country. The Pomona resident later pleaded guilty under the Stolen Valor Act on condition that he could appeal on First Amendment grounds.

Alvarez appears to be the first person charged and convicted under the act.

Alvarez is serving a five-year sentence in state prison for a separate conviction. He was forced to resign his water district board position in October after being convicted of fraudulently registering his ex-wife for health benefits with the district.

"We're very pleased," said Alvarez's public defender, Jonathan Libby, about the appeals court decision. "We recognize it was a very difficult case. We think the majority got it right."

In a 2-1 decision on Tuesday, the court majority ruled that the law violates Alvarez's free-speech rights.

"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," wrote Judge Milan D. Smith Jr., in support of the majority opinion.

Milan also stated that Alvarez's lie does no harm to anybody.

"The harm the (Stolen Valor) Act identifies - damage to the reputation and meaning of military honors - is not the sort of harm we are convinced Congress has a legitimate right to prevent by means of restricting speech," Milan wrote.

Military veteran Jim Frost, who spoke out against Alvarez during many of the water district's public hearings, disagrees with the judge's argument.

"Was harm done? Absolutely," said Frost, a former mayor of Rancho Cucamonga. "To say there was no such harm, that's absolutely untrue because he defrauded the voters."

The lone dissenting judge contended that the Supreme Court has set precedence citing false statements are not protected by the First Amendment.

In support of his dissenting opinion, Judge Jay S. Bybee wrote, "The better interpretation of the Supreme Court's cases and those of our court is that false statements of fact - as a general category - fall outside of First Amendment protection except in certain contexts where such protection is necessary 'to protect speech that matters.' And even in the exceptional contexts, a false statement that is neither satirical nor theatrical is unprotected if it is made with knowledge or reckless disregard of falsity."

Michael Shapiro, a professor of law at USC, believes the judges on both sides did not do a good job but that Bybee wrote the weaker argument. Shapiro said Bybee took previous court cases out of context and inaccurately argued that false statements fall outside the protection of the First Amendment.

Whether strategies and tactics will alter the future outcome of the case remains to be seen.

The spokesman for the U.S. Attorney's Office did not return calls regarding the possibility of an appeal.

Libby said the attorney's office seems poised to seek a 30-day extension to petition a rehearing. Libby said a full hearing would be decided by a panel of 11 judges on the 9th U.S. Circuit Court of Appeals.

This case could very well head to the U.S. Supreme Court.

"The potential is certainly there," Libby said. "At this point, the court has declared a federal law unconstitutional, which means the government cannot prosecute under the Stolen Valor Act for 20 percent of the population.

About 20 percent of the population falls within the jurisdiction of the 9th Circuit Court.

Shapiro said it's too early to determine whether the case will end up on the Supreme Court docket.

"It's like trying to figure out whether the gay marriage case would go before the Supreme Court," Shapiro said. "Sometimes the people who lose the case don't appeal it. They're afraid their case would lose to a higher court. If this went to the Supreme Court, there would be a better chance than what the (appeals court) majority thinks of upholding the (Stolen Valor) Act."

wendy.leung@inlandnewspapers.com 
909-483-9376

Stolen Valor Act - In their words

"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."

Xavier Alvarez, at Three Valleys Water District board meeting in July 2007

"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 prison term is extended to one year if it involves the Congressional Medal of Honor.)

Stolen Valor Act, passed in 2007

"Indeed if the (Stolen Valor) Act is constitutional under the analysis proffered by (dissenting) Judge Bybee, then there would be no constitutional bar to criminalizing lying about one's height, weight, age or financial status onMatch.com or Facebook, or falsely representing to one's mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time."

Judge Milan D. Smith Jr., writing the majority opinion

"Public discourse requires that citizens are equally free to praise or to condemn their government and its officials, but I can see no value in false, self-aggrandizing statements by public servants. Indeed, the harm from public officials outright lying to the public on matters of public record should be obvious. If the Stolen Valor Act 'chills' false autobiographical claims by public officials such as Alvarez, our public discourse will not be the worse for the loss."

Judge Jay S. Bybee, writing the dissenting opinion

"I am very disappointed to learn of the 9th Circuit decision on Stolen Valor, however I am confident that upon appeal to the Supreme Court, their misguided decision will be overturned. As long as I am in Congress, I will not give up the effort to protect their honor. These fake heroes use lies to claim underserved federal veterans benefits and defraud their communities into believing they are someone they are most certainly not for personal gain. I will continue to fight for the veterans of our country."

wendy.leung@inlandnewspapers.com