Xavier (aka Javier) Alvarez was convicted under that statute in 2007 after claiming during a local government meeting that he was a retired Marine who had received the Congressional Medal of Honor, ie the highest US military honour. Alvarez had not been awarded the decoration and indeed had not seen military service ... the same sort of dishonesty uncovered in Australia, where for example Gordon Tisdell (featured in The Australian and in the Sydney Morning Herald as a Vietnam veteran) was recently revealed to have not served in Vietnam - or indeed in any war. Rather than participating in fighting against the Vietcong, he spent his time on a dairy farm in New South Wales. 'Colonel' Michael John Nicholson used fake documents to access Randwick Barracks in Sydney for a spot of official tailoring.
Alvarez was investigated by the FBI after an alert by a fellow board member (we might presume that investigation was fairly quick, given that the FBI has a special 'stolen valor' squad and has access to the register of Medal of Honor recipients). After being charged under the Act he agreed to plead guilty in the district court (a US$100 special assessment, a US$5,000 fine, three years of probation and 416 hours of community service), appealing the conviction on First Amendment grounds. He appears to be the first person charged and convicted under the current version of the Act.
The Ninth Circuit has now held, in a 76 page judgment, that the speech prohibited under the Stolen Valor Act did not fit within the narrow categories of false speech held to be outside the First Amendment's "protective sweep". The Court indicated that the statute -
imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact — without anything more.It held that the district court's expansion of existing categorical exceptions to First Amendment protection would open the door to criminalization of false statements that were never intended to lie outside the amendments protective ground, indicating that -
The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech.
if the Act is constitutional ... there would be no constitutional bar to criminalizing lying about one's height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one's mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government's legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court's undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.The Court concluded that the Act was unconstitutional because "not narrowly tailored to achieving a compelling governmental interest". The US Attorney's Office is likely to appeal the decision.
Alvarez, like similar people in Australia, appears to have a history of embroidering his life story, often in ways that both invite incredulity and inspire anger among those with a respect for bravery. He is reported to have separately claimed to have won the Medal of Honor for rescuing the US ambassador and US flag during the Iranian hostage crisis, been a Vietnam War pilot who had been shot down but managed to get his chopper back into the sky, to have been a police officer, married a Mexican starlet and played hockey for the Detroit Red Wings.
Tisdell - who claimed to be a survivor of the Battle of Long Tan - was quoted by AAP on Anzac Day this year as stating "You remember the times you had in the army and the mates you went away with. Some of them didn't come back." That statement is at odds with the SMH's report that this month he explained -
I've never been a fraud in my life. I was just wearing my relatives' medals ... Defence came here today to see me. They said I'm not allowed to say anything. They brought the photographs out and showed them to me. They said not to say anything otherwise I get six months in jail.Four years ago Michael John Nicholson pleaded guilty in Sydney Central Local Court to seven charges, including falsely representing to be a returned soldier, wearing service decorations to which he was not entitled, possessing a prohibited weapon, trespass, and obtaining a financial advantage by deception.
In 2005 Nicholson led an Anzac Day march at Bronte, wearing a full colonel's uniform and several medals (including an Order of Australia and an active service medal). Nicholson used false ID to repeatedly enter Randwick army barracks, where he gained a tailored full dress uniform and name badge. He celebrated in the officers' mess at HMAS Watson on Remembrance Day that year. Unfortunately he had not fought for Australia and indeed had never served in the army. No entitlement to pass himself off as a colonel, no entitlement to the honours.
Magistrate Carney commented that Nicholson
deliberately misrepresented himself to the men and women of our armed services to be a member of an important and highly regarded group of our community … including our veterans.
Men and women have died under our Australian flag … Their memory didn't deserve to be denigrated by the actions of the offender on Anzac and Remembrance Day. His audacity in leading the 2005 parade had caused significant hurt to the servicemen and women who marched with him.Carney noted that uniforms defined a person's "role and task in society and bestowed a degree of importance and authority", commenting that Nicholson "acquired that authority through furtive means".
