Xavier Alvarez, decked out in a US Army uniform with medals he never earned

In November of 2006, Xavier Alvarez was elected to represent the city of Pomona on the board of the Three Valleys Municipal Water District as a war hero who had been awarded the Medal of Honor.

Alvarez claimed to be a retired 25-year Marine Corps veteran, who was many times wounded and had received the nation’s highest award for military valor for serving as a helicopter pilot and rescuing US POWs from behind enemy lines during the War in Vietnam. In fact, Alvarez was never in the military, and was 17 years old when the Vietnam War ended in 1975. (Inland Valley Daily Bulletin link)

In 1977, Alvarez was exposed and was prosecuted and pled guilty under the Stolen Valor Act of 2005, which made the unauthorized claim, display, manufacture, or sale of US military decorations or awards a federal misdemeanor. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000, but then appealed claiming the 2005 law violated his right to free speech (!).

Preposterous, wouldn’t you say?

But not too preposterous to persuade a three-judge panel of the 9th Circus. Judge Milan D. Smith opined, joined by Judge Thomas Nelson, as Josh Gerstein reports, that there is a free speech right to lie.

We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.

While asserting that they were not endorsing “an unbridled right to lie,” Smith and Nelson said regulations of false speech that have been upheld by the courts were limited to narrow categories where a direct and significant harm was caused. But, they said, the harm caused by people making false statements about military decorations was not evident.

Both of these judges were Bush appointees, leading one to conclude that there must be something in the water out there.