Jewish World Review March 16, 2011 / 10 Adar II, 5771
Federal appeals court strikes down Stolen Valor Act
By Carol J. Williams
Those were the words of Chief Judge
The court struck down both the 2005 act of Congress and the fines and sentence meted out to a
The Stolen Valor Act made it a crime punishable by up to a year in jail to falsely claim to have received high military decorations, as
But Alvarez's groundless boast of heroic service in the U.S. Marine Corps doesn't fall under any of the exceptions to First Amendment protection of words that are false, as with fraud and defamation, the full appeals court said in refusing to reconsider a 2-1 decision last year to invalidate the act in the court's nine-state region.
"If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the congressional Medal of Honor, but also the JDater who falsely claims he's Jewish or the dentist who assures you it won't hurt a bit," Kozinski wrote in defense of the First Amendment.
"Phrases such as 'I'm working late tonight, hunny,' 'I got stuck in traffic' and 'I didn't inhale' could all be made into crimes," Kozinski argued. "Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship."
At least seven of his conservative colleagues on the appeals court disagreed, signing a dissent from the decision not to rehear the Alvarez case, the first in which someone was charged and convicted under the challenged act, the court said.
That expression of discord by more than a quarter of the court's 26 active judges could signal that a government petition to the U.S. Supreme Court is in the offing.
"The court striking down a federal statute is a significant thing, and something one might expect to eventually reach the Supreme Court," said Assistant U.S. Attorney
Kozinski and Judge
"Lying about being a military hero is despicable and may have some impact on the government's ability to recruit genuine heroes, but it's hard to understand why it's so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes," or other unpopular speech held to have constitutional protection, Kozinski said.
In the dissent written by Judge
"The judges have been looking at this from two very, very different perspectives," Libby said of the divided 9th Circuit. "One presumes the First Amendment protects all speech and the other view is that lies have no protection whatsoever under the First Amendment. They come to different results, but I think the majority got it right here."
Alvarez, now imprisoned on an unrelated fraud matter, according to Libby, entered a guilty plea in federal court in
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