Stolen Valor v. First Amendment

The Stolen Valor Act declared war on military phonies. Signed into law in 2006, the federal law made it illegal for any unauthorized person to wear, manufacture, sell, barter or claim any military decoration or medal.

Phonies are rampant. An organization called AuthentiSEALS, which worked to expose men who falsely claimed to be members of the elite SEAL teams, estimated that there were 300 impostors for each real SEAL. AuthentiSEALs disbanded in 2005 because its members were exhausted from checking out all the liars.

We’ve certainly seen the phenomenon here at Lovefraud. My ex-husband, James Montgomery, was one of those who falsely claimed to be a Special Forces operative. He also falsely claimed to earn the Victoria Cross, which is Australia’s equivalent of the Congressional Medal of Honor. He perpetuated the fraud for 25 years, until I busted him. And plenty of Lovefraud readers have told me that the sociopaths who deceived them also claimed medals, war service, CIA clearance, etc., etc., etc.

Since the Stolen Valor Act became law, many phonies are being prosecuted. The P.O.W. Network, administered by Chuck and Mary Schantag, is in the forefront of this effort. They check out the claims. They post the impostors on their website. They circulate information about arrests via e-mail, and, I’m pleased to say, a lot of these jerks are exposed.

Meet Xavier Alvarez

One of them is Xavier Alvarez of Pomona, California. Alvarez was elected to the Three Valleys Municipal Water District board. On July 23, 2007, Alvarez attended the Walnut Valley Water District board meeting. As a newly elected director, he was invited to introduce himself. Alvarez said, “I’m a retired Marine of 25 years. I retired in 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I was wounded many times by the same guy. I’m still around.”

Alvarez talked about his military achievements on other occasions as well. He told a fellow board member that he saved a U.S. ambassador, and the American flag, while wounded by gunfire during a helicopter rescue in Lebanon. Then he changed his story and said it happened in Iran.

Previously, Alvarez ran for mayor of Pomona. While seeking the endorsement of the Pomona Police Officers Association, he claimed that he won the Medal of Honor. In fact, when Alvarez showed up at the offices of the Inland Valley Daily Bulletin newspaper when he sought its endorsement, he wore camouflage fatigues.

Every claim was a lie. He didn’t win the Medal of Honor. In fact, Alvarez was never in the military. He was charged on September 26, 2007 with falsely claiming that he won the Medal of Honor. Then he denied that he made the claim.

Unfortunately for Alvarez, the Walnut Valley Water District board meeting was recorded; claiming that he never said it didn’t work. So what’s the next best thing? When a TV reporter confronted Alvarez at subsequent meeting—he refused to resign—Alvarez backpedaled.

“When I explained myself, I explained myself incorrectly. People took it out of context,” Alvarez said. “It was a bad day for me. I didn’t explain myself correctly.”

You can see this amazing performance in a TV report about the case by ABC News.

Alvarez and his ex

So, Alvarez gets himself elected to the water board, and what does he do next? He claimed that Juanita Diana Ruiz was his wife, and signed her up for health benefits. But the couple divorced back in 2002.  His fraud cost the Three Valleys water board $4,874.

According to the Inland Valley Daily Bulletin, Ruiz filed for divorce in June 1997 after two years of marriage. She requested a restraining order. Here’s what she wrote in her court declaration:

(Alvarez) has thrown me against the wall, choked me and has threatened me with more physical violence. (Alvarez) has repeatedly stated that he would not hesitate to kill anyone who messes with him. (Alvarez) carries a firearm and will not hesitate to use it.

Ruiz also stated that Alvarez claimed to be a veteran of the Gulf War, became violent when intoxicated, and threatened violence against her family and friends.

The newspaper found more interesting information about Alvarez:

• In 2002, Alvarez was convicted of driving under the influence, driving with a suspended license and trespassing on railroad property.
• Alvarez claimed that he earned an engineering degree from Cal Poly Pomona. He never attended the college.
• Alvarez claimed that California Governor Arnold Schwarzenegger was going to name a bridge after him because he won a seat on the water board. That was also a lie.

Alvarez lies about everything, then lies about lying. He has a problem with alcohol. He was threatening and abusive towards his wife.  All of these behaviors are very familiar to us here at Lovefraud, because they are the behaviors of a sociopath.

First Amendment

There’s more. Alvarez feels entitled to lie. So entitled that he’s filed a case in federal court demanding that his indictment under the Stolen Valor Act be dismissed because it violated his First Amendment right of free speech.

A federal public defender filed the motion on his behalf. Quoting prior court cases, it stated:

False speech is protected speech. It is true that “neither the intentional lie nor the careless error materially advances society’s interest in uninhibited, robust, and wide open debate on public issue.” And yet, the Supreme Court has recognized that false statements of fact are “inevitable in free debate.” If erroneous speech is punished, the risk is that speakers will be “cautious and restrictive” in the exercise of their constitutionally protected freedoms, which may lead to “intolerable self-censorship.” (Citations omitted.)

Then, the motion argued that because Alvarez made the statement as an elected public official, his statements were “political speech—”free debate about politics and government—and the law should not intrude on it.

The motion was dismissed by U.S. District Court Judge R. Gary Klausner in a decision dated April 9, 2008. He wrote:

Here, this Court is presented with a false statement of fact, made knowingly and intentionally by Defendant at a Municipal Water District Board meeting. The content of the speech itself does not portray a political message, nor does it deal with a matter of public debate. Rather, it appears to be merely a lie intended to impress others present at the meeting. Such lies are not protected by the Constitution.

Both the motion and the dismissal are posted on the P.O.W. Network website.

Alvarez appeals

So does Alvarez back down? Of course not. He appeals the decision. The case was heard in Pasadena, California on November 4, 2009. An audio file of the hearing is available on the website of the United States Court of Appeals for the Ninth Circuit. It is enlightening.

Alvarez was represented by a lawyer named Jonathan Libby. In his opening statement, Libby argued that with the Stolen Valor Act, Congress made it illegal “to tell a non-defamatory lie about oneself,” which violated the Constitution of the United States.

Libby pointed out that everyone lies—they lie about their age, their marital status. They lie to make people feel better. They lie about Santa Claus and the Easter Bunny. “All Americans believe that simply telling these lies are fully protected under the First Amendment,” he said.

Libby conceded that the government had a legitimate interest in sanctioning lies that led to fraud, as in the cases where phonies have claimed to be veterans, even wounded veterans, to collect veteran’s benefits. But, he said, there were other ways for the government to protect the Congressional Medal of Honor, like publishing the names of the true recipients on a website.

Then the following exchange took place:

Judge: What First Amendment interest is served by allowing this type of speech?

Libby: Falsehoods can have affirmative value for speech; they spur the quest for truth. We live in a free society, where people are free to speak their mind, even tell lies. In this case, the government has decided what lies it wants to prosecute and what lies it doesn’t.

Judge: This guy is perpetuating a fraud on the public, in a public forum, in which it could be to his advantage to pump up his credentials. Why can’t the government protect our interest in those type of public fora?

Libby: Because it’s possible in our society that people prefer that liars get elected to office.

The big picture

I almost fell off my chair when the attorney asserted that American citizens prefer to elect liars. But the stupid claim hints at the broader issue that is at stake here.

The judges and attorneys argued about fine points of legal theory, such as the fact that the Stolen Valor Act did not have an intent requirement, meaning that it doesn’t say that people who falsely claim to be heroes have to do it on purpose. They argued about criminal and civil remedies.

But I believe that the important issue for the general public is that people who falsely claim to be military heroes usually don’t make the claim in isolation. If they’re lying about winning a medal, they’re lying about other things as well.

My ex-husband put on an elaborate charade of being a Special Forces hero, complete with medals and forged documentation. He was the keynote speaker at a Veterans Day ceremony. He did presentations for schoolchildren about the importance of Veterans Day.

He did not do this to claim veterans’ benefits from the government. He did it to make himself look honorable so that he could convince me, many other women and even businessmen to invest in his schemes. He created a false persona of honor so that we would believe and trust him.

That’s what these guys do.

For me and many other Lovefraud readers, the false military claims were just a symptom of the problem. The real problem was that the claimant was a sociopathic con artist out to take everything he could get.

I’m a journalist, and I’m all for the First Amendment. But using it as an excuse to protect lying con artists—and Xavier Alvarez certainly fits the bill—would be a tragedy.