Victoria Taft had on her show on Friday (8/20/10) one of America’s greatest living military heroes, Major General Patrick Henry Brady (USA, ret.) Medal of Honor recipient as a “Dust Off” helicopter ambulance pilot in the Vietnam War. He is, among other things, a past president of the Medal of Honor Society,
Gen. Brady is also co-author, along with his daughter Meghan Brady Smith, herself an Army veteran and a Bronze Star recipient in the War Against Terrorism in Iraq, of the recently released book, “DEAD MEN FLYING: The Legend of Dust Off, America’s Battlefield Angels.”
Gen. Brady appeared on the Victoria Taft Show to discuss, and object to, the recent decision of the Ninth Circuit Court of Appeals, the most liberal and the most reversed Circuit in the country, to nullify as an unconstitutional violation of First Amendment “freedom of speech,” the Stolen Valor Act (18 U.S. Code Section 704), which imposes criminal penalties for false claims of receipt of the Medal of Honor and other medals of valor in military service.
That is, two judges on the 9th Circuit Court of Appeals (the third dissented), have effectively created a constitutional “right to lie.”
Thus, miscreant frauds are now possessed of a “First Amendment right” to knowingly and deliberately lie, and to deceive the public into believing, that they have not only served in defense of the nation in military service, but have received the Medal of Honor, and other medals of valor, by Act of Congress on behalf of a grateful nation.
There is no shortage of such miscreant frauds. Vietnam veteran B. Burkett has done a great public service in exposing hundreds of frauds, assisted by investigative journalist Glenna Whitley, in “Stolen Valor: How the Vietnam Generation Was Robbed of its Heroes and its History.”
The 2-to-1 decision nullifying the Stolen Valor Act and creating a “right to lie” for such frauds was rendered in the case known as U.S. vs. Xavier Alvarez, 9th Circuit Court of Appeal Case No. 08-50345, filed on August 17, 2010. [It is available on the Ninth Circuit website.] It was written by Judge Milan Dale Smith, Jr. (a lawyer who is a native of Pendleton, OR, but practiced law in Los Angeles), joined by Judge Thomas G. Nelson (the only one with military service, i.e., Army Reserve, 1965-1968).
Concisely stated, their majority decision holds the Stolen Valor Act is unconstitutional because it punishes “speech,” i.e., lies about receipt of the Medal of Honor and other medals of valor, and does not require evidence that someone suffered legally cognizable “harm.
Judge Jay S. Bybee dissented in a detailed opinion. In it, he traces Supreme Court precedent establishing a general rule that false statements of fact i.e., “lies,” are not constitutionally protected speech unless they fall into exceptions to that general rule. He argues that the majority decision reverses that rule, and creates a general rule that false statements, i.e., “lies,” are constitutionally protected speech unless they fall into exceptions rendering them unprotected.
Further, Judge Bybee warned that the new rule, an effective “right to lie,” has an impact far beyond the Stolen Valor Act. This includes possibly nullifying statutory prohibitions against illegal aliens making false statements about their status in the country or to obtain legal status.
That is, Judge Bybee warned in dissent: “Numerous statutes are called into question by the majority’s opinion…statutes that punish false statements and do not appear to require proof of harm,” he wrote, citing, among others: “18 U.S.C. [Section] 1015(a) (punishing ‘any false statement under oath, in any case, proceeding, or matter relating to…naturalization, citizenship, or registry of aliens’)….”
The Stolen Valor Act decision overturned the conviction of Xavier Alvarez. He is a Democrat Party politician who was elected to the Three Valley Water District Board in San Bernardino County, CA. There he claimed to be a “retired marine” who had been “wounded” in combat and had been awarded the “Medal of Honor.”
He was originally exposed by a real former Marine, Melissa Campbell. She held a community relations job in which she came in contact with Alvarez, who regaled her with his tales of service in the Marines and receipt of the Medal of Honor. She was so impressed that she texted her husband how thrilled she was to be meeting with a Medal of Honor recipient. Her husband texted back that he had checked out Medal of Honor recipients on the internet, and there was no “Xavier Alvarez.” Former Marine Campbell then inquired of fake Marine Alvarez where he served, arousing his suspicion that he was about to be exposed as a fraud. Alvarez, therefore, then used his Water Board position to have Campbell fired. That is, Alvarez complained to her employer that she had disrespected him, a member of the Water Board, by her questions. She was fired.
I became involved when I was contacted to provide pro bono representation to Campbell, and to verify whether Alvarez’ further claim on the Water Board website that he was a member of the American Legion was true. It was another lie. It was removed from the website after I threatened to sue. (While I agreed to represent Melissa Campbell pro bono over her wrongful discharge, she ultimately decided she did not want to sue for personal and familial reasons.)
He was represented at public expense by the Federal Public Defender. The ACLU supported his constitutional challenge to the Stolen Valor Act as a violation of “free speech.” The ACLU supported also a second challenge in a Colorado case which resulted in a District Court decision holding the Stolen Valor Act unconstitutional.
Congress since 1948 has found that it is in the public interest to protect the reputation and meaning of the Medal of Honor – and to protect the public from being deceived – by criminal penalties against imposters who would falsely represent that they have received the Medal of Honor or other medals of valor. The Stolen Valor Act of 2006 is the latest enactment providing those protections. The 9th Circuit has now nullified the protections of the Stolen Valor Act by finding a First Amendment “right to lie,” claiming no one is harmed by such lies, not even holders of the Medal of Honor.
Thus, miscreant cretins like Xavier Alvarez are now free to lie that they are among the most honored of American veterans, holders of the Medal of Honor. However, in Alvarez’ case, he will have to do it from his prison cell. He was also convicted of unrelated fraudulent acts in his position as elected Water Board Director, and is currently doing time in prison for those corrupt acts.
Where does all this leave Maj. Gen. Pat Brady and all the other real American military heroes legitimately holding the Medal of Honor?
“I just can’t understand how anyone can believe that General George Washington and the Founding Fathers intended to create a First Amendment Constitutional ‘right to lie’ about military service and receiving the Medal of Honor or other medals of valor. It just defies common sense,” General Brady said of the decision.
“I hope a way will be found by Congress, and the Executive Branch, to protect the meaning and integrity of the Medal of Honor, and other medals of valor, from abuse and exploitation by charlatans under this 9th Circuit decision,” he said.
Gen. Brady is one of only eight-eight (88) living recipients of the Medal of Honor, among more than 300-million Americans. We 300-million Americans owe to those 88 American holders of the Medal of Honor – and all of those who have received the Medal of Honor in all the wars – a debt beyond repayment.
The least we can do is to stand with them and demand that Congress act by emergency legislation or otherwise, and demand that the Executive branch act by litigation, to preserve the protections of the Stolen Valor Act, and to reject the notion of contemporary lawyers sitting as judges that the Founding Fathers intended to create in the First Amendment a constitutional “right to lie” about receipt of the Medal of Honor and other medals of valor.
[Rees Lloyd is a civil rights lawyer, a veteran, and a veterans activist, who is a Victoria Taft Blogger.]
Tell ’em where you saw it. Http://www.victoriataft.com