Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

March 20, 2008

Free Speech And Fraud

by Doug Mataconis

An interesting case-in-point raised by this article in The New York Times:

When Xavier Alvarez was asked to say a few words about himself at a meeting of a California water board last summer, he decided on these: “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.”

Only the last three words were true. Mr. Alvarez never served in the Marines and was certainly never given the Medal of Honor, the nation’s highest award for valor in action against an enemy force.

He is, then, a liar. Is he also a criminal?

Mr. Alvarez is scheduled to go on trial next month in federal court in Los Angeles for violating the Stolen Valor Act of 2005, which makes it a crime to lie about having received certain medals.

Craig H. Missakian, the prosecutor in the case, is a brainy and literate fellow. “It’s a superinteresting area,” he said, beginning a discussion of Pericles’ funeral oration and the importance of honoring the legacies of those fallen in battle.

“You don’t want to stifle speech about opinions and ideas,” Mr. Missakian said. “But Congress, and rightfully so, recognized the great sacrifice that people awarded the Medal of Honor made on behalf of their country. To the extent we have phony Medal of Honor winners running around like Alvarez, it dilutes the value of their sacrifice.”

That rationale is reflected in Congressional findings. The law, Congress said, is meant “to protect the reputation and meaning of military decorations and medals.”

As one law professor notes, there is a First Amendment concern here:

“If the government cannot under the First Amendment compel reverence when it comes to our nation’s highest symbol,” asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, “why then can it compel reverence when it comes to lesser forms of symbolic expression?”

Eugene Volokh, though, says that the law isn’t really on Alvarez’s side:

“On the other hand,” Eugene Volokh, a law professor at the University of California, Los Angeles, wrote on his blog, The Volokh Conspiracy, “the legal issue is not as clear as one at first might think.” He cited the somewhat muddy Supreme Court jurisprudence in this area and an October decision of the Washington Supreme Court that struck down a state law making it illegal for politicians to lie about candidates for public office.

“The best remedy for false or unpleasant speech is more speech, not less speech,” Justice James M. Johnson of the Washington Supreme Court wrote. It is hard to muster much sympathy for Mr. Alvarez. But it is easy to envision cases in which laws to protect symbols are misused.

The more important question, as I see it, is what harm has Mr. Alvarez actually caused here ? Yes, he’s a jerk and yes he offended veterans, but, based on the facts presented, its clear that nobody lost money because of his misrepresentations, nobody had any of their rights violated or was deceived by him in a way that caused them to suffer a quantifiable case.

Given that, why should he be subject to a criminal prosecution for being stupid ?

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  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    Doug,

    You know, honestly I don’t find his actions to be all that criminal. I’m no fan of people who fabricate military credentials, but unless those fabrications are directly related to whatever act of criminal fraud he perpetrated (like claiming military benefits) it seems to be more of an act of tastelessness and stupidity than anything else. Most of the people who do that sort of thing aren’t so much evil as just pathetic and possibly mentally ill. The public scorn and personal shame they face from their communities and the people who know them when they’re outed (and they very often are outed) are sufficient punishment in my opinion. Often the results of that are harsher than anything the criminal justice system could reasonably come up with.

    Besides, it’s not like the awards system for the military is the ultimate judge of who a person is. While decorations and medals are appreciated and I think are worthy of respect, any soldier who’s been in for a significant period of time can probably recite to you multiple occasions where people were rewarded for instances when they didn’t deserve recognition and ignored in instances where they did. It’s often very arbitrary:

    http://www.cbsnews.com/stories/2007/01/06/eveningnews/main2335058.shtml

  • Ben

    He wasn’t speaking under oath right? I don’t see how this isn’t covered by free speech. The guy is an ass but this shouldn’t be illegal.

  • http://dangerouslyidealistic.blogspot.com/ UCrawford

    I suppose if military service was somehow relevant to his qualifications on the job that would be a reason to prosecute…but that doesn’t appear to be the case here either. I think Ben’s probably right…the guy’s just an ass and I suspect that when time comes around again to vote he won’t be keeping his job.

  • http://www.tfsternsrantings.blogspot.com T F Stern

    I think UCrawford pretty much got it said. No reason to waste taxpayer money on this fellow; let his shame be his reward.

  • vlatro

    This isn’t the place for criminal justice, but rather the much overlooked “social justice”. It should be made clear by every concerned party that this man has no sense of honor or respect for our veterans. He would disgrace them while using the first amendment as a shield for his actions. I believe the first amendment would work equally in favor those who speak out against him. People in his community should paint the town with flyers that have his picture and name, as well as a brief description of his misdeeds. His employer should, for reasons of conscience, let him go. His family should disown him. He should be ostracized by the community and literally cast out. With any luck he would take his own life and his children would flush his ashes down the nearest toilet.

    In this case above all others, the point is accountability. Without that there is no such thing as honor or disgrace. To let him go unpunished is more than an offense to those who hold medals, it’s an offense to the very principals of honor itself. A discredit to every honest choice you’ve ever made in your life, every sacrafice, every effort to better your self or the world. Everyone with a sense of civic duty, loyalty or patriotism is degraded by his actions.

    I agree, this is not (nor should it ever be) the role of government, but as a people we have a responsibility to hold each other accountable for our misdeeds. We are doing ourselves, and especially Mr. Alvarez a great disservice by not exemplifying this shortcoming. How is he to ever become anything better than what he is if he can’t understand the most basic principals of respect. What kind of children would he raise? What would their values be if he did not himself ever realize his failings as a human being?

    The stolen valor act is B.S.
    We don’t need government to organize a good public beating.

  • UCrawford

    For anyone who’s interested, here’s an article about an FBI agent, Thomas Cottone, who actually hunts Medal of Honor fabricators. As of 1998 he said he hadn’t put any of them in prison…he thought exposing them was enough:

    http://www.homeofheroes.com/a_homepage/community/imposters/cottone.html

  • http://www.LifeLockblog.com Karen

    I agree. Not all people we deal with would go with us. I mean, we can’t please everybody.

    We must at least try.

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