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Sunday, January 20, 2008

More Phoney Soldiers 
...And stupid lawyers!!!!


An elected official charged with falsely claiming he earned the military's highest honor has filed a motion to dismiss the federal case against him on free speech grounds.

The motion argues that the Stolen Valor Act of 2005, under which water board member Xavier Alvarez was charged, is incompatible with the First Amendment because it restricts free speech by criminalizing false claims of military honors.

Alvarez, an elected representative to the Three Valleys Municipal Water District, said last year at a water district meeting that he was awarded the Congressional Medal of Honor for his deeds as a Marine.

After admitting he never served in the military, he was charged with violating the Stolen Valor Act. He pleaded not guilty to the misdemeanor charge.

Alvarez's lawyer Brianna J. Fuller argued in the motion to dismiss, which will be heard Jan. 14 in federal court, that "protecting the reputation of military decorations" is not a compelling enough reason to place "restrictions on false statements."

But government prosecutors said in their opposition submitted Wednesday that the First Amendment does not protect deliberate falsehoods.


First of all, this guy ought to get his ass kicked. It's breathtaking that he thought he could get away with it.

Second of all, his lawyers are absolutely shameless.

Third, the government lawyers are just plain stupid. Of course the First Amendment protects falsehoods. If it didn't, there's nothing to prevent the government from establishing a Ministry of Truth and taking upon itself the role arbitrating what are true and false media claims - then punishing individuals and publishers for false news reports and false expressions that clearly enjoy 1st Amendment protection today.

Where do we get lawyers this stupid?

The correct argument, in my view, is that the defendant's claim that the first amendment applies ought to be trumped by the government's vested interest in maintaining the integrity of its decorations, awards and honors.

Although it seems cheap, the closest analogy I can think of would be a trademark seal. For instance, the Underwriters Laboratory seal of approval. UL clearly has an interest in protecting the integrity of the mark, and preventing its unauthorized use.

Moreover, all manufacturers who did undergo the time and expense of obtaining a UL seal of approval likely have a vested interest in maintaining that integrity. The unauthorized and improper use of that seal constitutes an outright theft of their equity in the mark. Yes, it is the theft of an intangible asset. But it is theft all the same.

UL certainly has tort options available to it in this case. And I have no problem with such an individual being tried for theft. Depending on the licensing fees involved, the amount could well rise to felony level.

I would also have no problem with Medal of Honor recipients forming an association to file a lawsuit against people who falsely claim the decoration. Proceeds could go to soldier's charities, and the integrity of the award can be maintained.

Using theft laws as the model for prosecution is a little different from using fraud laws, in that it would seem to be a little easier to prove. And it's impossible to raise the argument that no one was actually defrauded.

Splash, out

Jason

(Thanks to IRA Darth Aggie for the link)

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Comments:
The correct argument, in my view, is that the defendant's claim that the first amendment applies ought to be trumped by the government's vested interest in maintaining the integrity of its decorations, awards and honors.

That's a good gambit, and I hope they've made that argument. I couldn't find the US Attorney's brief, so unfortunately we can't read and disect it. From what I've seen of the legal system, lawyers throw everything they can think of at the opposition because they may not get another chance to add to the complaint.

Which is why the First Amendment defense was throw in, and why the government has to deal with it. It is not unreasonable for them to point out that deliberate falsehoods do not fall into the category of protected speech.

Deceptive advertising is not permitted, and the Lanham Act prevents businesses from slagging each other and their products. And heaven forbid, we actually have laws on the books forbidding perjury!

And it's impossible to raise the argument that no one was actually defrauded.

Except the voters, of course.
 
Well, voters have a remedy. They can vote the guy out, or they can move to impeach, depending on the relevant statutes.

I am definitely not too keen on the idea that some prosecutor somewhere can take it on himself to determine that some statement made on the campaign trail was false or misleading, and then prosecute on that basis. The potential for abuse of executive authority is huge.
 
Simple plan: water board the former member of the water board.
 
If he used the phony Medal of Honor claim as a campaign claim, then his election could be deemed a value obtained under fraudulent pretenses. But the article isn't clear on that point.

Certainly he's a jerk, but it looks like it's up to his constituents to act on his jerkitude as they see fit. Maybe the fine old American tradition of tar and feathers...
 
Jason, they must acquit.

He was WATERBOARDED.
 
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