Team Infidel
Forum Spin Doctor
New York Times
March 18, 2008
Pg. 14
By Adam Liptak
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.”
Some First Amendment experts worry that criminalizing speech about symbols is a dangerous business and is reminiscent of laws against flag burning that the Supreme Court has held unconstitutional.
“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?”
In California, where Mr. Alvarez continues to sit on the board of the Three Valleys Municipal Water District, an elected position, patience is wearing thin.
“There’s no question he’s pathological,” said Bob G. Kuhn, the board’s president, recounting some of what has come out of Mr. Alvarez’s mouth. “He’s had three helicopter accidents. He’s been shot 16 times. These are all fabrications.”
But Mr. Kuhn said the board was powerless to expel Mr. Alvarez, who continues to receive $200 per meeting and health insurance. The board has censured him, though, for putting a woman he falsely claimed was his wife on the board’s health plan.
At first, Mr. Kuhn said, he took no position on the wisdom of the criminal prosecution of his colleague.
“But we’ve had 40 or 50 veterans parade before our board, asking him to publicly apologize,” Mr. Kuhn said. “He has refused to do that. With that said, I have no problem with the prosecution.”
Mr. Alvarez is facing the possibility of two years in prison and a $200,000 fine. He is represented by a federal public defender, Brianna J. Fuller, and he has filed a motion to dismiss the case, arguing that the First Amendment protects him.
Free speech experts say the motion is unlikely to succeed.
“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.
In 1970, for instance, the Supreme Court reversed the conviction of Daniel J. Schacht, who had protested the Vietnam War in what he called a street skit, for violating a law that allowed actors to wear military uniforms only “if the portrayal does not tend to discredit” the armed forces.
Rodney A. Smolla, the dean of the Washington and Lee University School of Law and the author of several books on free speech, said Mr. Alvarez’s case was different.
“My instinct is that there probably would not be a winning First Amendment defense because of the confluence of two factors,” Professor Smolla said. First, he said, it is hard to identify anything positive Mr. Alvarez contributed to any debate. Second, he said, “the integrity of the honors that the military bestows is very important.”
Mr. Alvarez did not respond to a request for an interview, and Ms. Fuller, his lawyer, declined to comment, citing office policy.
Not long after he was indicted, Mr. Alvarez told The Inland Valley Daily Bulletin that his comments had been taken out of context. On learning they had been taped, he changed his story.
“I was just nervous, saying anything,” Mr. Alvarez said. “There’s no truth to that. What harm did that do to them?”
March 18, 2008
Pg. 14
By Adam Liptak
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.”
Some First Amendment experts worry that criminalizing speech about symbols is a dangerous business and is reminiscent of laws against flag burning that the Supreme Court has held unconstitutional.
“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?”
In California, where Mr. Alvarez continues to sit on the board of the Three Valleys Municipal Water District, an elected position, patience is wearing thin.
“There’s no question he’s pathological,” said Bob G. Kuhn, the board’s president, recounting some of what has come out of Mr. Alvarez’s mouth. “He’s had three helicopter accidents. He’s been shot 16 times. These are all fabrications.”
But Mr. Kuhn said the board was powerless to expel Mr. Alvarez, who continues to receive $200 per meeting and health insurance. The board has censured him, though, for putting a woman he falsely claimed was his wife on the board’s health plan.
At first, Mr. Kuhn said, he took no position on the wisdom of the criminal prosecution of his colleague.
“But we’ve had 40 or 50 veterans parade before our board, asking him to publicly apologize,” Mr. Kuhn said. “He has refused to do that. With that said, I have no problem with the prosecution.”
Mr. Alvarez is facing the possibility of two years in prison and a $200,000 fine. He is represented by a federal public defender, Brianna J. Fuller, and he has filed a motion to dismiss the case, arguing that the First Amendment protects him.
Free speech experts say the motion is unlikely to succeed.
“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.
In 1970, for instance, the Supreme Court reversed the conviction of Daniel J. Schacht, who had protested the Vietnam War in what he called a street skit, for violating a law that allowed actors to wear military uniforms only “if the portrayal does not tend to discredit” the armed forces.
Rodney A. Smolla, the dean of the Washington and Lee University School of Law and the author of several books on free speech, said Mr. Alvarez’s case was different.
“My instinct is that there probably would not be a winning First Amendment defense because of the confluence of two factors,” Professor Smolla said. First, he said, it is hard to identify anything positive Mr. Alvarez contributed to any debate. Second, he said, “the integrity of the honors that the military bestows is very important.”
Mr. Alvarez did not respond to a request for an interview, and Ms. Fuller, his lawyer, declined to comment, citing office policy.
Not long after he was indicted, Mr. Alvarez told The Inland Valley Daily Bulletin that his comments had been taken out of context. On learning they had been taped, he changed his story.
“I was just nervous, saying anything,” Mr. Alvarez said. “There’s no truth to that. What harm did that do to them?”