Alvarez and the Stolen Valor Act: Comedy, heresy, or necessary?

Xavier Alvarez lied about his

INDIANAPOLIS, February 24, 2012 – Xavier Alvarez of Pomona (CA) is a defendant in a case in our Supreme Court (US v Xavier Alvarez). He claimed he was a recipient of “The Congressional Medal of Honor,” and he wasn’t. Yet he fooled some Californians with his obvious lie, and he was convicted under the 2006 “Stolen Valor Act,” which prohibits lying about military honors and records.

It was an obvious lie: there is no “Congressional Medal of Honor,” as anyone who spent an instant in research would know. It’s the “Medal of Honor.”

Valid lists of recipients of the Medal of Honor are all over the Internet; checking Alvarez’s supposed bona fides would be an easy task. Still, the United States thinks it’s better to make an example of this liar, through invocation of a law, than to simply allow his audience to denounce him man-to-man.

When I was a kid, I was told that the difference between lying and satirizing was the speaker’s intent and the circumstances: if the speaker told something untrue, and it was plausible, he did it with the intent that his audience was to believe him, that was a lie. If he told a whopper that was obviously a whopper (“I hooked a 140-pound rainbow trout, but it got away as I was netting it!” – there are no 140-pound rainbows, as any fisherman in the audience would readily know), that was comedy or satire, not a lie. If he really didn’t expect anyone to believe it (“If elected, I’ll ensure world peace!”), then that was not a lie. In that case, hell would have to wait until his term was up.

But if he told a plausible lie that he expected people to believe, well, that was a lie. God would handle the consequences.

But now we have legislators and courts playing God. We know that the First Amendment is not a license to lie; it does not grant permission to cause panic. We also know that petty lies are not considered criminal, unless they are told to promote fraud; and fraud is covered separately in the law.

His public defender, Jonathan Libby, is stacked up against Donald Verilli of the US Solicitor General’s Office, and Libby is using the First Amendment as a defense, along with “reasonableness” arguments based on the “slippery slope” that federal prosecution of this kind of lying could portend.

The state’s case is supported by myriad organizations and big-name law firms who have filed as friends of the court (amicus curiae petitioners).

While Alvarez’s attorney admits the lie, and also that it’s despicable to falsely represent that one has received such honors, he also points out that singling out a particular kind of lie for federal prosecution is (to use my word) nuts. Lying on an employment application gets you fired. Fraud can be prosecuted in every state. There are additional civil actions possible, if a plaintiff can show injury.

Alvarez was convicted of breaking the Stolen Valor Act, but the loose-cannon 9th Circuit Court of Appeals (in California) struck down the conviction on First Amendment grounds. Now, the US Supreme Court will determine if a narrowly-crafted federal law that mandates prosecution for specific lies is constitutional. If it is, what’s to prohibit states, or the federal government, from criminalizing all sorts of other lies?

And what should happen to the biggest liars of all – the ones we elect?

It’s not as though Alvarez did anything right, or that the First Amendment protects slander, libel, provocative language (“fighting words”), perjury (apparently except as necessary to protect one’s political office), public endangerment (yelling “fire” in a theater), theft by deception or other common frauds; it doesn’t.

Lying is wrong. Plus, Alvarez bordered on committing fraud, even if he didn’t technically do so; and fraud is wrong. The question before the Court is whether this should be a federal issue, and (as was pointed out in the earlier trial) that laws against fraud are already available to handle such liars.

Of course, if anyone at Alvarez’s original meeting had the presence of mind to check Alvarez against a list of Medal of Honor recipients, or if anyone in the audience had known there is no such thing as “The Congressional Medal of Honor,” we wouldn’t be making a federal case out of this. As always, stupid is as stupid does.

And singling out one kind of lie, and throwing the weight of the United States of America into the prosecution thereof, is… nuts.

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Tim Kern

Tim Kern taught economics for fifteen years, and discovered that understanding life is easy; it’s recognizing reality that takes practice. He holds a music degree, and later earned an MBA in finance from Northwestern University. He has lived across the US, and now makes his home in Anderson, Indiana.

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