Asked and Answered: Julie H. Hurwitz

By Steve Thorpe

Legal News

The U.S. Supreme Court recently heard oral arguments on U.S. v. Alvarez, which will test the constitutionality of a 2006 law making it a federal crime to lie intentionally about receiving military decorations. The law, called the ''Stolen Valor Act,'' was used to prosecute Xavier Alvarez of Pomona, Calif., who had posed as a war hero with many medals, including the Medal of Honor. Attorney, law professor and author Julie Hurwitz is president and partner at Goodman & Hurwitz, P.C. She is on the Michigan State Bar Civil Liberties Committee and has spent decades litigating civil rights and social justice cases.

Thorpe: Civil liberties groups, publishers and new media outlets have told the court they worry that this law could lead to more government attempts to regulate speech. Valid concerns?

Hurwitz: These are definitely valid concerns. The extent to which this law is upheld, it opens the door--indeed the floodgates -- for the government to criminalize all forms of speech that may be inherently offensive, or that openly criticizes our government, if such speech contains false statements of fact--even if such falsehoods are negligently uttered, even if such speech was not publicly made and even if there is no identifiable harm caused to any one person or group of persons.

If the ''Stolen Valor Act'' is upheld as constitutional, all kinds of speech that criticizes the government--its position on issues, its conduct, military or police actions--could be criminalized if it contains one factual error, on the grounds of ''harming'' the reputation of that governmental agency or action. Under the plain language of this law, the government need only prove that a false statement was made, and need not prove that the false statement (i.e. ''I was awarded the Congressional medal of honor'') was made publicly or that any actual harm was caused to anyone as a result.

Thorpe: Are you surprised that the current Justice Department, under President Obama, has mounted such an energetic defense of the law?

Hurwitz: I am not at all surprised that the Obama Administration is vigorously defending this law, given that it is an election year. Despite President Obama's liberal rhetoric, he is still the Commander in Chief of the Military and is politically obligated to defend their programs and positions on questions such as this.

Thorpe: Even Mr. Alvarez's attorneys have conceded that he is a liar. He has also claimed to be a former Detroit Red Wing. He was subjected to what his attorneys have termed a ''public shaming'' for his falsehoods. Should that be the extent of the punishment for people who engage in that behavior?

Hurwitz: As the 9th Circuit aptly put it when addressing this issue in the Alvarez opinion, nothing prevents the government from publicizing those who lie about receiving military medals, or even from prohibiting fraudulently posing as a military veteran in order obtain military benefits. But, ''prohibiting pure speech cannot be reconciled with the 1st Amendment.'' U.S. v. Alvarez, 617 F3d 1198 at 1210 (2011) Unless the speech is maliciously or intentionally intended to cause harm or fraudulently obtain economic gain, and actually does cause such harm, the only reasonable response to such lies is simply to expose them and ostracize the liar.

One of the reasons that defamation, for example, can be prohibited is that the harm that is caused by such a lie is virtually ''undoable'' once it has been publicized. That is, once the reputation of a person has been damaged by defamatory publications, it is almost impossible to undo the harm. On the other hand, as in the Alvarez case, ''when valueless false speech, even proscribable speech can best be checked with more speech, a law criminalizing the speech is inconsistent with the principles underlying the 1st Amendment.'' 617 F3d at 1211.

False speech alone can only be constitutionally criminalized when it is committed within the context of the legitimately criminal conduct. That is, the false speech must be related to some underlying criminal conduct.

When there is obvious harm caused to another person or group of persons as the result of an intentionally false statement, i.e. ''your child was just run over by a bus,'' or ''let's go kill all Jews,'' then the government's interest in preserving the integrity of the victim is self-evident. On the other hand, when a person falsely claims to have been awarded a medal of honor, or claims to have served in the military (not with any goal of being awarded any economic gain), then what is the harm that is being protected other than the amorphous ''integrity'' of the military and those who have risked their lives in the service of the United States. How does this fly in the face of a military that just last week has been publicly exposed for its blatant participation in a concerted conspiracy to prevent military veterans from receiving much needed military benefits by ordering its psychiatrists to falsely diagnose soldiers with ''personality disorders'' in order to render them ineligible for veterans benefits?

Thorpe: This issue crosses a number of ideological and personality lines on the court and, consequently, may be a hard decision to predict. If you were a betting woman, how do you see the decision concluding?

Hurwitz: From the reports I have read summarizing the oral argument that occurred before the Supreme Court, and given the known ideological leanings of the majority on the Court, I would not be at all surprised if the law is upheld. It is obviously problematic that the Respondent, Mr. Alvarez, is an acknowledged pathological liar and that his lawyer made two significant concessions during the oral argument: 1) that the law would not necessarily chill truthful speech; and 2) that it was ''possible'' that Mr. Alvarez ''benefitted'' from his lie, which arguably supports the validity of a law that punishes false speech ''that is intended to obtain something of value.''

Published: Mon, Mar 26, 2012

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