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07/10/2022. 17:40:28

LegalToday

Por y para profesionales del Derecho

Constitutional liar

Associate Professor at the University of Navarra School of Law in Pamplona, Spain

Aaron J Shuler
Associate Professor at The University of Navarra School of Law in Pamplona, Spain.

The 1st Amendment's guarantee of freedom of speech, preferred or odious, is being tested next month in a Federal District Court in one of the United States of America's most sensitive contexts: military sacrifice.

Constitutional liar

Is it against the law to lie?  In some situations lying about someone can constitute slander if orally published or libel if printed.  But what if one's lie is about one's self?

The prosecution of Xavier Alvarez next month in Federal District Court in Los Angeles, California, will provide insight into how the preceding questions can be answered.

Mr. Alvarez is being tried because he stood before a small local governmental body and stated that he was a retired marine of 25 years that had been awarded the Congressional Medal of Honor, perhaps the highest recognition of military service in the United States.

In truth, Mr. Alvarez did not receive the prestigious acknowledgement.  He was never even a marine.

The law being used to punish Mr. Alvarez's deceit is a relatively new one entitled the "Stolen Valor Act of 2005."  The text of the law proscribes falsely representing oneself as having been awarded a military decoration or medal for valor because doing so "damage[s] the reputation and meaning of such decorations and medals."

If convicted, Mr. Alvarez faces a maximum sentence of 2 years in a federal penitentiary and/or a fine of $200,000.

Mr. Alvarez did not materially gain as a result of his lies.

Moreover, the danger of Mr. Alvarez being unjustly enriched by his fabrication at the expense of those who truly warrant admiration is doubtful in this specific case.  Mr. Alvarez continuously undermined his credibility by also making outlandish claims to the same audience on different occasions about how he had survived numerous helicopter crashes and had been shot 16 times, provoking mass incredulity.

But the general principle involved is the gravity of Mr. Alvarez's perfidy regarding the intangible connotation that comes from receiving such solemn honors.  This is no inconsequential white lie to many.  It is an egregious hijacking of the sacrifice and heroism of a nation's most valiant defenders for the despicable self-aggrandizing enjoyment of a fraud. 

Such legislated sensitivity takes a different form in recently pacifist Europe where it is a crime, albeit an indecipherably ambiguous one, to insult "Turkishness" in Turkey or to insult the Spanish monarchy in Spain.

However frivolous, the Turkish and Spanish laws may not have run afoul with any other concrete laws of superceding authority.  Such may not be the case in the United States.

Mr. Alvarez's chief, if not only defense, is not that the law is a hollow, futile, flag-waving attempt to contrive respect.  Instead, it is that his conduct, distasteful as it was, is protected by the Freedom of Speech Clause in the 1st Amendment of the Constitution of the United States, thus rendering the Stolen Valor Act of 2005 unconstitutional. 

Having poor taste or no decency at all is not criminal.  But what about just a modicum of respect?

The honoring of military service argument has been utilized in the past to support laws prohibiting the desecration of the American flag. 

However, the argument was rebuked in deference to permitting the burning of the flag not because respect for military service is not a powerful argument in the United States, but because military service itself is proffered as protecting ostensibly inalienable rights, including freedom of speech.  Burning the flag is exactly that: an expression of speech.

Mr. Alvarez on the other hand, will have to square off against military valor-during a time of war, mind you-with a shameless lie instead of substantive expression and see if the 1st Amendment shield is still broad enough to protect him.

In emotional terms, the result of Mr. Alvarez's trial is not difficult to predict.  In the normative sense, he should not be able to commandeer the valor of others for his own purposes.  But while the rule of law is a subjective human organism, it at least purports to not viscerally serve the convenience of should but instead the dispassionate principles of what the law is.  And the law is the protection of speech, no matter the desirability of its content or the result of Mr. Alvarez being free to propagate a fairytale.

And if the desirability of the speech is irrelevant, is the magnitude of the subject you are lying about not also immaterial?

Further, it is unwise if not impossible to legislate reverence.  Instead, employing the adage of curing bad speech with more speech is likely to be more productive than incarcerating someone for failing to properly venerate our armed services.

Finally, if the emotional charge of military sacrifice was removed, Mr. Alvarez's hoax was really no different than half of the pick-up lines heard in any singles bar.

Mr. Alvarez should then hope that his judge is a bachelor and not a veteran.

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