The Right to Lie

The Whittier (California) Daily News nailed it with this headline:

"Elected official claims right to lie"

The elected official, in this case, is one Xavier Alvarez, who serves the south Pomona area on a local water board. Mr. Alvarez got into a bit of hot water (pun intended), over a claim he made last summer. During a July meeting of the Walnut Valley Water District Board, Alvarez was caught on tape, identifying himself as a retired Marine and a Medal of Honor recipient.

"I'm a retired Marine of 25 years," Alvarez said. "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. I'm still around."

That may have impressed the folks at the water board, but someone (apparently) found the claim a bit fishy. An investigation revealed that Alvarez never won the Medal of Honor or even served in the military.

Unfortunately for phony hero, the Stolen Valor Act of 2005 criminalizes false claims about military service and awards. Alvarez was prosecuted by the local U.S. attorney, and pleaded guilty last November to a misdemeanor charge.

Now, Alvarez is asking a federal judge to dismiss the case. In a motion filed last month, Alvarez's court-appointed attorney stated that his false claim is protected under the First Amendment.

"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," says the motion.

"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."

In the government's opposition to the motion, submitted late last month, Assistant U.S. Attorney Craig H. Missakian argues that 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," Missakian wrote.

"Moreover, even if the Court were to conclude that defendant's lie deserves a modicum of protection, the government's undeniable interest in protecting from dilution the significance of the nation's highest military distinction and the magnitude of the accomplishment of those who actually earned it clearly outweighs that interest."

A hearing on the matter is scheduled for today, before Federal District Judge Edward Rafeedie. Missakian expects the judge to rule on the motion during the hearing. And, there's a good chance that Alvarez's motion will be dismissed.

Turns out that Judge Rafeedie is a Reagan appointee with a reputation as a no-nonsense jurist. Four years ago, Rafeedie threw out a string of lawsuits filed by a disabled man and his attorney, who used the Americans With Disabilities Act to sue a total of 400 restaurants, bowling alleys and other public places.

The suits usually claimed that the establishments infringed on the man's right to use their facilities, because the bathroom was poorly designed, or the location of the grab bars made it difficult for him to seat himself on the toilet. And, before Rafeedie's ruling, the man and his attorney had won most of their suits, collecting thousands of dollars in "damages" from various establishments.

Not only did Judge Rafeedie dismiss the suit--he did something most judges wouldn't dream of. He the named the plantiff, one Jarek Molski, a vexatious litigant," who was trying to "harass and intimidate business owners." With that ruling, he barred Molski from filing more suits under the Disabilities Act, unless he received permission from a judge.

Additionally, Judge Rafeedie ordered Molski's San Francisco lawyer to appear before him, and explain why the attorney (and his firm) should not be sanctioned for "abusive litigation practices." Needless to say, Rafeedie's ruling got the attention of ambulance-chasing lawyers in California, who vowed to seek relief from 9th U.S. Circuit Court of Appeals.

What does this mean for Mr. Alvarez and his motion? Based on Judge Rafeedie's past rulings, we'd say that Alvarez's luck has run out. We expect the judge will make quick work of Alvarez's assertion that he has a right to lie, outside the realm of ideas. Alvarez's bogus assertion that he served in the Marine Corps and won the Medal of Honor are not protected speech, and the government clearly has an interest in protecting the significance of that award--and the legacy of those who earned it. Better luck with the 9th Circuit, Mr. Alvarez.

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ADDENDUM: The Whittier Daily News reports that Alvarez is the first person to be prosecuted under the Stolen Valor Ac, but that may not be accurate. As we reported last August, former Army Corporal Richard McClanahan pleaded guilty in Texas to federal charges of bank fraud and claiming that he had won the Medal of Honor--a violation of the Stolen Valor law. McClanahan is currently serving time in federal prison.

Based on that, it would appear that Alvarez is the first person in California to be prosecuted under the 2005 law. A dubious distinction, to be sure, but in some parts of that state, Alvarez's guilty plea (and efforts to get it thrown out) may be viewed as a badge of honor. Maybe he should run for the water board in San Francisco--he'd be a shoo-in.