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More on the First Amendment and Knowing Falsehood:

Xavier Alvarez, an elected water district board member in Southern California, was caught on tape falsely claiming that he was awarded the Congressional Medal of Honor. He is being prosecuted for violating 18 U.S.C. § 704(b), which says, in relevant part,

Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months [or one year as to the Congressional Medal of Honor or some other medals], or both.

Alvarez, though, is raising a First Amendment defense, arguing that his false statement is constitutionally protected. Part of the argument is that the statute is overbroad because it covers even innocent errors, not just knowing falsehoods; but the government sensibly responds that the statute can and should be read as implicitly referring to knowing falsehoods. (The government also suggests that it may cover negligent falsehoods, but I think that weakens the government's case, since generally negligent falsehoods on matters of public concern are immune from punishment -- though they may sometimes lead to compensatory damages. Here, the allegation is that the statement was knowingly false, and it's reasonable to read this criminal statute as limited to knowing falsehoods, plus perhaps some reckless but not merely negligent falsehoods.)

The tougher constitutional question, it seems to me, is whether the First Amendment exception for knowing falsehoods is really a "libel exception," as it's sometimes described -- justified chiefly by the desire to prevent injury to specific people's reputation -- or a "false statements of fact exception," justified by the low constitutional value of falsehoods whether or not the falsehoods are defamatory. My sense is that the latter reading is more proper, and some lower courts agree; but the Washington Supreme Court recently took the opposite view, and the U.S. Supreme Court has indeed suggested that some knowing falsehoods are protected.

Here's my quick general summary of the law on this:

  1. The Court has expressly upheld statutes banning fraud, including fraudulent solicitation of charitable donations (though nonfraudulent solicitation of charitable donations is generally treated as fully protected speech). Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003).

  2. The Court has expressly upheld the false light tort, which compensates people for the emotional injury of having false or misleading statements said about them that "would be highly offensive to a reasonable person," even when the statements don’t damage the subject’s reputation. Time, Inc. v. Hill (1967).

  3. The Court has suggested, in Brown v. Hartlage, that knowingly or recklessly false statements in election campaigns are generally punishable. The Court struck down the statute involved in that case on the grounds that it didn't have a knowledge/recklessness requirement, but it reasoned that "There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner's election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment."

  4. Lower courts have uncontroversially upheld criminal punishment of perjury and out-of-court lies to government officials (for instance, under 18 U.S.C. § 1001). See, e.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir.1982).

  5. Lower courts have generally upheld trade libel law, which imposes liability for (at least) lies about people's and corporations' products, not just about the people themselves. Cf. Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (assuming, without deciding, that trade libel should be treated like normal libel).

  6. Only in one situation has the Court strongly suggested that even some recklessly or knowingly false statements are constitutionally protected: New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can't punish even deliberate lies about the government (the traditional definition of "seditious libel"), so long as no particular person is mentioned. It's possible that courts will hold that the same applies even to deliberate lies about broad historical or scientific claims, on the theory that disputes about historical and scientific truth should be carried on without fear of criminal (or even civil) liability; but I know of no cases specifically dealing with this.

  7. Finally, the somewhat opaque R.A.V. v. City of St. Paul holds that the government often may not selective punish some false statements but not others; but there are several substantial exceptions to this doctrine — "[w]hen the basis for the content discrimination [within the unprotected category] consists entirely of the very reason the entire class of speech at issue is proscribable," when "the subclass happens to be associated with particular 'secondary effects' of the speech [unconnected to the persuasive or offensive communicative impact of the speech], so that the regulation is ‘justified without reference to the content of the ... speech,'" when "a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech," and when "the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot."

My sense is that the R.A.V. doctrine doesn't apply here, since it's hard to see an attempt at official suppression of ideas here; and even if there is a narrow exception-to-the-false-statements-of-fact-exception for statements about the government or about scientific or historical claims, it shouldn't apply to a specific statement about one's own past. On the other hand, the legal issue is not as clear as one might at first think, given the Washington Supreme Court's decisions, and the lack of clarity to the Court's false statements of fact doctrine.

Related Posts (on one page):

  1. Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:
  2. More on the First Amendment and Knowing Falsehood:
htom (mail):
What if he'd claimed, say, to have a PhD, an MD, ..., or to be a member of the Bar? Are there penalties for such other inflated or invented claims (and if not, why not, but that's too broad a question for here.)
1.7.2008 9:28am
PJens:
I hope this case is prosecuted. I personally would like to see more accountability in the accuracy of speech content. I agree that although ideas ought not be surpressed, falsehoods need to be exposed and discouraged.
1.7.2008 9:30am
Happyshooter:
How exactly does one lie about having been awarded the Medal of Honor and it be 'innocent'.

I know exactly what minor awards the military gave me, none of which were for heroism. A man knows whether or not he has been awarded the very highest medal which only rarely the best and bravest men get.

Making an innocent argument about this issue is so far beyond the pale as to have gone past the laugh test and entered the realm of poor lawyering.

This is like a child rape defendant claiming that child rape laws are unenforcable because he may have sex with a three year old girl who stutters and he thought she said thirty three.
1.7.2008 9:35am
Rich B. (mail):
What if he'd claimed, say, to have a PhD, an MD, ..., or to be a member of the Bar? Are there penalties for such other inflated or invented claims (and if not, why not, but that's too broad a question for here.)

In fact, he did all of those things, and I think that is part of the problem here. According to the Claremont Insider:

"Alvarez has also made false claims that he served in the military in Vietnam and other exotic locales (he has admitted he was never in the military), that he is married to a starlet (he is not married), and that he graduated as an engineer from Cal Poly Pomona (there is no record of him having attended Cal Poly)."

None of those false statements have a criminal statute prohibiting them, so he wasn't prosecuted for that. Lying about the Medal of Honor, though, has a law against it.

I think the facts show why you don't need to prosecute "just lying about stuff." His lie about being married was in the context of putting his ex-wife on his health insurance, and therefore misappropriating public funds. THAT should be punishable.

Mr. Alvarez has been censured by the Water District and his lies have been well reported in the newspapers and blogs. I don't want politicians to start being sent to jail by their opponents any time they catch them in a lie.
1.7.2008 9:40am
John (mail):
I think there is a strong governmental and societal interest in protecting the "integrity" (for lack of a better word) of the Medal of Honor--easily as much as protecting some consumer who believes a false claim about a TV he is buying. If anyone can lie about receiving the award, it cheapens the award.

BTW, it's hard for me to imagine a circumstance where one negligently says he's been awarded the Medal of Honor, or does so inadvertently. Is this a realistic concern?
1.7.2008 9:43am
billb:
What about absurdist statements like a teenager saying "I won the Medal of Honor during WWI" or "I was awarded a Purple Heart in Vietnam"? Is there a an exception for statements that are so physically impossible that the speaker could not, even in principle, have made them?
1.7.2008 10:09am
Philistine (mail):

BTW, it's hard for me to imagine a circumstance where one negligently says he's been awarded the Medal of Honor, or does so inadvertently. Is this a realistic concern?


There are a couple of similarly named awards. (e.g. Congressional Gold Medal, Congressional Space Medal of Honor, etc.), and I could readily foresee innocent slips of tongue about them or others.
1.7.2008 10:11am
George Smith (mail):
The comedian Jackie Vernon used to tell a joke about his favorite pick up line: Pardon me, I seem to have dropped my congressional Medal of Honor here somewhere.........., that's OK, though, I have another one at home.

Serously though, folks, nobody gets confused about whether he received the CMH. This is just a deliberate lie.
1.7.2008 10:23am
MLS (www):
Didn't the guys in Wedding Crashers get chicks by claiming that they had been awarded the Purple Heart? That is a contemptible thing to do, but I must say that I am surprised to learn that it is a federal crime. What if you are just joking? What if you are an actor in a movie? What if you are drunk?

As for the negligence issue, agreed that it is highly unlikely anyone (other than the mentally disturbed) would be confused about the award of the Medal of Honor. But this statute isn't limited to the Medal of Honor. I recall from the Admiral Boorda controversy that there is some degree of imprecision in what decorations and medals one is authorized to wear. And surely people can innocently get confused about the names, degrees, etc. of awards they received long ago.
1.7.2008 10:29am
Justin (mail):
I'm in the opposite boat of PJens. Although I don't neecessarily think the first amendment requires it, I am skeptical from a policy matter of criminally prosecuting any form of speech without having to show some particular, intended harm. We prosecute fraud because of its likelihood to injure - I'm just not sure what the societal interest is here that justifies a criminal prosecution.
1.7.2008 10:33am
WHOI Jacket:
But try and practice law lying about having passed the Bar and.............
1.7.2008 10:59am
DG:
Justin: The societal interest is that we ask men to die for little pieces of ribbon, to crib from Napoleon. We have imbued those pieces of ribbon with vast importance, and they should be protected, accordingly.

This law is probably over-broad, though. I would rather protect a much smaller group of decorations - Silver Star. Navy Cross/DSC, MoH, Presidential Unit Citation. That eliminates concerns about idiocy like the ADM Boorda issue - the military is sometimes clumsy about the award of lesser decorations and folks rely on the word of their superiors. In the case of the top medals for valor, things are quite clear and there is little confusion.
1.7.2008 11:11am
Happyshooter:
I recall from the Admiral Boorda controversy that there is some degree of imprecision in what decorations and medals one is authorized to wear.

Not really. The service record book says in detail what awards the person has, and Boorda killed himself because he had been caught. His old CO tried to cover for him, but the record is exact and specific.
1.7.2008 11:14am
Bruce Hayden (mail) (www):
I assume that this is the statute that they are using for the "stolen valor" program prosecutions. I think that it will survive strict scrutiny, since I see no other really viable way of preventing people from falsely claiming such honors, and the compelling state interest would presumably include rewarding heroism in military service to our country, and thus making the military more effective through this sort of recognition.
1.7.2008 11:19am
Bruce Hayden (mail) (www):
The law may be a bit overbroad, but this guy isn't testing it at where it might be overbroad, but at its heart.
1.7.2008 11:21am
Justin (mail):
I guess that's where I part ways from you, DG. I don't think the "pieces of ribbon" argument is sufficiently convincing. The value in a Congressional Medal of Honor is in the honor itself of being bestowed, not in the social benefit you get from others for having it. The detriment to those who actually won the award from someone who lies about it is too small to justify further incarceration of our citizenry.
1.7.2008 11:27am
Fury:

This law is probably over-broad, though. I would rather protect a much smaller group of decorations - Silver Star. Navy Cross/DSC, MoH, Presidential Unit Citation


Good point. I've never heard of someone being prosecuted for wearing for example, an AF Training Ribbon, Good Conduct medal, bolo badge to which they were not entitled. Of course, the folks that are prosecuted usually tend to wear everything but the kitchen sink - see here

Whatever ribbons, medals, awards badges one earns whether they are a dirty, smelly leg to driving an aircraft, nothing gets my goat more than folks knowingly wearing things they did not earn or are entitled to...
1.7.2008 11:28am
arbitraryaardvark (mail) (www):
Was there a historical exception to the right of free speech, for non-libelous but false statements, at the time of the passage of the bill of rights?
Were there similar statutes around at the time of the founders?
1.7.2008 12:08pm
Paul B:
I recall that a single FBI agent handles these particular cases (only false CMH claims are prosecuted), and that the standard punishment is to write letters of apology to every living recipient of the Medal of Honor.
1.7.2008 12:15pm
Fub:
Happyshooter wrote 1.7.2008 9:35am:
How exactly does one lie about having been awarded the Medal of Honor and it be 'innocent'.
There are countless possible scenarios:

A belligerent drunk corners Def somewhere and threatens him with great bodily injury.

Drunk: "I'm gonna mash in yer face with this here tar arn!"

Def: "Go away."

Drunk: "What are you going to do about it, twerp?"

Def (flashing a Cracker Jack plastic badge): :The Congress of the Yew-Nighted States gave me this Medal of Honor for taking Pork Chop Hill barehanded and chewing gum at the same time. I'm fresh out of chewing gum right now, so back off."

That's a lousy strategy for Def to make an armed threatening drunk go away, but should it be a crime? Def knowingly and falsely represents himself or herself, verbally ... to have been awarded [a] decoration or medal authorized by Congress for the Armed Forces of the United States...

If Def were prosecuted, he might successfully raise an affirmative defense of necessity or duress at trial, if the federal courts permitted. But if a federal prosecutor somewhere were so inclined, he could take Def to trial for not thoroughly thinking through the relatively subtle legal implications of his immediate verbal response to a raging assailant with a deadly weapon.

The statute at least needs an intent to defraud element.
1.7.2008 12:21pm
Guest0987654:
What if the false statements come from law professors during the course of their teaching activities? For example, a real estate attorney recently stated that, "Architecture does not have First Amendment recognition because it does not have the capacity to convey ideas." This is not only a falsehood, it was taught to him at some law school and it affects his ability as a professional to represent his clients' First Amendment interests. Could this attorney sue the law school he attended? Obviously, whoever is passing this type of statement on to students is not qualified to teach law.
1.7.2008 12:43pm
Toby:
Naked dancing has 1st amendment protection. Naked dancing as speech lies by making guys think they have a shot. Therefore mere lies must be constitutionally protected.
1.7.2008 1:17pm
James Lindgren (mail):
What about lying about intentions in the context of bargaining, even political bargaining?

Assume (as happened) that Jesse Jackson says that he will boycott the Democratic Convention unless he is awarded more delegates. Most people know that his statement is probably a lie (because he wants to give a speech in any event). Now assume (as may not have happened) that Jackson has admitted to his staff that he has no intention of boycotting the convention.

Is it constitutionally protected to threaten to do something (such as to walk away from a deal) that you have no intention of doing?
1.7.2008 2:28pm
John Yossarian:
I've often wondered if it would be illegal to have stationary printed that said "Law Office of John Yossarian" for writing to businesses like airlines, utility companies, health care companies, etc. I'm not an attorney, nor am I claiming to be one, though I am legally entitled to represent myself. If they treat me better, because they perceive that I might be an attorney, who is harmed? Of course the answer is real attorneys are harmed because the value of the perks for being an attorney is diluted over a greater number of people.
Shouldn't everyone be entitled to the same treatment regardless of profession?
1.7.2008 3:00pm
JosephSlater (mail):
You know, I was just discussing this issue with my wife . . . Morgan Fairchild . . . whom I've slept with. . . .

Seriously, Toby wins the thread.
1.7.2008 3:08pm
Just Dropping By (mail):
I've often wondered if it would be illegal to have stationary printed that said "Law Office of John Yossarian" for writing to businesses

Probably would vary on a state-by-state basis depending on criminal impersonation statutes, although I'm not aware of any states that prohibit claiming to be an attorney so long as you don't actually attempt to engage in the practice of law.
1.7.2008 3:19pm
M-K (mail):
I think I'll talk to my good friends Hillary and Barack about getting some of these congressional medals. They'd look great displayed between my Pulitzers and Oscars.

So that's what happened to Baron Munchhausen -- he's in jail somewhere.

Seriously, though, I've wondered about these laws making it illegal to lie to government officials when not under oath. How long have those been around? Aren't there Fifth Amendment concerns involved?
1.7.2008 3:23pm
John Yossarian:
Impersonating an attorney is covered, in CA., under the Ca. Business and Professions Code Section 6126, which oddly doesn't seem to leave an exception for representing myself.

My larger point was that the dissolution of a brand isn't always a bad thing if it eliminates privileges to which one is not entitled. Police officers don't get speeding tickets (brass pass) very often and it is notoriously hard to convict them of drunk driving and spousal abuse (blue wall). They can have the free food at McDonalds.

Other codes cover letters like RN at the end of names, for nurses, for example. It looks like ESQ is still up for grabs.

I don't know what privileges a MoH gets you, though I doubt it gets you face time with Morgan Fairchild. Talk about brand dissolution, Morgan Fairchild.
1.7.2008 3:46pm
Dilan Esper (mail) (www):
What Fub said.

Professor Volokh has convinced me that the law is constitutional under the First Amendment as long as the proper scienter requirement is read into it, which can be done under United Stats v. X-Citement Video.

But as a matter of policy, it sure seems to me that some lies about military medals are completely harmless or at least don't cause the type of harm that the federal government should be regulating, while other lies could be tools in a fraud.

One more thing. Is this statute within Congress' enumerated powers? It has nothing to do with interstate commerce. I suppose that you could say it is part of regulating the armed forces, or that it is necessary and proper to that power, but that seems like a pretty big stretch.
1.7.2008 4:12pm
Crimso:
"The value in a Congressional Medal of Honor is in the honor itself of being bestowed, not in the social benefit you get from others for having it."

Assuming one is alive to enjoy the honor. A large percentage of CMOH "awards" are posthumous. Personally, a CMOH awardee leaves me in awe, so I would see a false claim to it as akin to, say, claiming to have a Nobel prize when you don't. The idea that it basically has no effect may be true for those with zero appreciation for what actions in the past have merited it. Spend some time reading through a few citations for the CMOH. A lot of them seem like something out of a movie.
1.7.2008 4:12pm
Richard Aubrey (mail):
Excluding the other kinds of false speech, this unique situation can be addressed easily.
His name, this being the twenty-first century--will forever be followed by "Lied about earning the Medal of Honor".
That's about as bad as necessary.
1.7.2008 4:37pm
randal (mail):
Eugene says:

[E]ven if there is a narrow exception-to-the-false-statements-of-fact-exception for statements about the government or about scientific or historical claims, it shouldn't apply to a specific statement about one's own past.

That's very frightening to me. I definitely would have thought I enjoy a First Amendment right to fib about myself, actual fraud et al notwithstanding.

I'm glad I live in Washington.
1.7.2008 5:22pm
Bleepless (mail):
1. How about claiming falsely in a job application to be a member of whatever ethnic group is currently the most-favored one. Doubting it could be met with hurt huffiness and accusations of (surprise!) racism.
2. I bet this is familiar to more than one other. When I worked at ACLU, we kept receiving messages from prisoners who supposedly had lost their membership cards and would like them replaced. Heh-heh.
1.7.2008 6:38pm
TFKW:
You know, I really don't understand why people lie about stuff like that.
1.7.2008 6:59pm
Bruce Hayden (mail) (www):
How about claiming falsely in a job application to be a member of whatever ethnic group is currently the most-favored one. Doubting it could be met with hurt huffiness and accusations of (surprise!) racism.
Reminds me of a certain tenured professor at the University of Colorado. Merely lying about having Native American ancestry to get hired, tenured, and then promoted was not enough to get him fired. Rather, that took a bit of plagiarism and other academic conduct, and last I heard, it was still tied up in court.
1.7.2008 7:22pm
Bruce Hayden (mail) (www):
Sorry, not "academic conduct" but "academic misconduct" in my last post.
1.7.2008 7:23pm
dwlawson (www):

Sorry, not "academic conduct" but "academic misconduct" in my last post.


I kind of liked it uncorrected.

A nit...isn't is simply 'Medal of Honor' and not with 'Congressional' in front? Kind of irks me.
1.7.2008 8:01pm
DG:
"Not really. The service record book says in detail what awards the person has, and Boorda killed himself because he had been caught. His old CO tried to cover for him, but the record is exact and specific."

Happyshooter, the matter is still a sore subject with many of us who served in the Navy under ADM Boorda and had the highest respect for him. ADM Zumwalt was his "old CO" and said that the device (a small brass V worn on medals that he was without doubt entitled to) was authorized.

Boorda was beloved because he came up through the ranks and truly cared about the enlisted sailors and instituted several changes that made the Navy a better place. I remember fury amongst my fellow sailors towards David Hackworth over this incident, which was widely considered to be character assassination.
1.7.2008 8:09pm
Pub Editor:

"The value in a Congressional Medal of Honor is in the honor itself of being bestowed, not in the social benefit you get from others for having it."


Children of MoH recipients are eligible for admission to the United States service academies without regard to the quota requirements. I believe this also means that, unlike other applicants, they do not have to obtain a recommendation from a senator or congressman.

Additionally (from Wikipedia),


1. Each Medal of Honor recipient may have his or her name entered on the Medal of Honor Roll (38 U.S.C. § 1560). Each person whose name is placed on the Medal of Honor Roll is certified to the United States Department of Veterans Affairs as being entitled to receive the special pension of US $ 1,027.00 per month. As of December 1, 2004, the pension is subject to cost-of-living increases.
2. Enlisted recipients of the Medal of Honor are entitled to a supplemental uniform allowance.
3. Recipients receive special entitlements to air transportation under the provisions of DOD Regulation 4515.13-R.
4. Special identification cards and commissary and exchange privileges are provided for Medal of Honor recipients and their eligible dependents.
5. Recipients receive a 10% increase in retired pay under 10 U.S.C. § 3991.
6. Those awarded the medal after October 23, 2002 also receive a Medal of Honor Flag. The law also specifies that all 143 living Medal of Honor recipients receive the flag along with all future recipients (14 U.S.C. § 505).
7. As with all medals, retired personnel may wear the Medal of Honor on "appropriate" civilian clothing. Regulations also specify that recipients of the Medal of Honor are allowed to wear the uniform "at their pleasure" with standard restrictions on political, commercial, or extremist purposes; other former members of the armed forces may do so only at certain ceremonial occasions.


No doubt, the primary value in receiving the MoH is the honor of having one's extraordinary and gallant achievments recognized, but it is not the only benefit.
1.7.2008 9:04pm
Perform:
Wow! I feel much safer now, knowing FBI fights crime this way.

No wonder FBI's crime statistics are down.
1.7.2008 9:48pm
Josh644 (mail):
This is a bad law, plain and simple. Let him be prosecuted for fraud if he lied in order to secure material gain from someone. Otherwise, the government has no business bothering him.
1.7.2008 11:04pm
Crimso:
"the government has no business bothering him."

Considering he claimed the government gave him something it didn't, it is their business.
1.8.2008 10:09am
Happyshooter:
Boorda was beloved because he came up through the ranks and truly cared about the enlisted sailors and instituted several changes that made the Navy a better place.

I agree, he seemed like a good man.
1.8.2008 10:16am
Don Miller (mail) (www):
I liked the list of official perks that go with an MoH.

When I was in the Navy, there was a lot of rumor about other unofficial perks.

1. MoH was saluted by other personnel, regardless of rank. Example PO3 Smith receives the MoH. Admiral Jones would salute PO3 Smith instead of PO3 Smith saluting the Admiral, which would be normal.

2. MoH recipients have the right to go aboard any ship in the Navy.

3. If a MoH recipient is assigned to a ship and the ship visits a port, the MoH recipient can use the Captain's Gig (small boat) instead of waiting in line for the liberty boats with the rest of the sailors

Frankly, I don't know if any of these things are true. There were no MoH recipients on active duty while I was in the Navy.

Most States have special license plates for MoH recipients as well.
1.8.2008 12:36pm
PD Dude (mail) (www):
If the government has this much power to prosecute people for telling lies, and this is not subject to the RAV "viewpoint" and "underinclusiveness" argument, what would stop the government from criminalizing something like Holocaust denial (something done in much of Western Europe but decried here), or slavery denial, or denial that someone was a communist, or anything else that the government could creat a "finding" of what the truth really is, and then criminalize it's denial?
1.10.2008 2:30am