Live from United States v. Alvarez

| February 22, 2012 | 43 Comments

I went in CERTAIN that we would lose, and now after the hearing….guardedly optimistic,

 

The day started at 4am when the alarm went off and VT Woody dove for cover.  He slept on the floor, there was no spooning. We SP’d at about 4:15 and made it to the court by 4:20.  And we were 4th and 5th in line.  Turns out we could have waited until 5:30 and made it in, but better safe than sorry.

 

We waited with 3 guys, none of whom were on our side.  The 1st guy was there for the Thomas Jefferson First Amendment Center (or somesuch) and had been there sleeping on the pavement since 1:30.  Good dude, seriously sharp.  Wish he was on our side, but so it goes.  Another dude’s fiance was an attorney of record for Alvarez, and a third chap was a clerk for the 10th circuit judge who dissented against our position.  Anyway, VT Woody found it odd we could all discuss the case without getting too exorcised.  That’s just the way it is in the law.  You try not to get too passionate and emotional.

However, when we got inside, we met Doug Sterner, our longtime TAH friend, and he was escorting an MOH guy.  I believe it was Brian Thacker, but not entirely certain.

I won’t go into too much detail now, but the poor dude defending Alvarez got absolutely bashed up there.  Just painful.  By the end he conceded that there would be no chilling effect if they upheld SVA, and when he tried to assert that there was no harm done, he got absolutely slapped silly by Justice Breyer, who should have been his most solid supporter.  Will go through the transcript later to get some stuff from it, but If I had to guess, gun to my head, I would say we have Alito, Roberts, Thomas, Kennedy and lose Sotomayor and Kagen.  The others seemed to be in the fight on both sides.

UPDATE: From the transcripts….
(Note, some of these might not make sense out of context, but I identified these as potentially interesting colloquies. At least read the bolded one….)

JUSTICE SCALIA: I believe that there is no First Amendment value in — in falsehood.

CHIEF JUSTICE ROBERTS: What is — what is the First Amendment value in a lie, pure lie?

After a convoluted answer that cited “personal autonomy” which Roberts rejected, the lawyer went on to Mark Twain, which Roberts pointed out was only a story, a book. And then Alito weighed in…

JUSTICE ALITO: Do you really think that there is — that the First Amendment — that there is First Amendment value in a bald-faced lie about a purely factual statement that a person makes about himself, because that person would like to create a particular persona? Gee, I won the Medal of Honor. I was a Rhodes scholar, I won the Nobel Prize. There’s a personal -­ the First Amendment protects that?
MR. LIBBY: Yes, Your Honor, so long as it doesn’t cause imminent harm to another person or imminent harm to a government function.

GENERAL VERRILLI: And this — this is a case in which one of the harm that justifies this statute is the misappropriation of the government-conferred honor and esteem, and that is a real harm and a significant harm, and there is also the particularized harm of the erosion of the — of the value of the military honors confirmed — conferred -­ by our government; and those are particularized harms that are real; and the kind of speech that this statute regulates are a genuine threat to those harms in a way that, looking backwards, looking and anchoring this argument in the tradition of this Court’s precedents, this is a type of calculated factual falsehood.

JUSTICE KENNEDY: Well, it seems to me your best analogy is the trademark analogy, Olympic case, et cetera. You put that in a rather minor — not as an afterthought, but it’s a secondary argument in your brief. It seems to me it’s the strongest one. The whole breathing space thing almost has it backwards. It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don’t think that’s our tradition. On the other hand, I have to acknowledge that this does diminish the medal in many respects.

SOTOMAYOR: What I’m trying to get to is, what harm are we protecting here? I thought that the core of the First Amendment was to protect even against offensive speech. We have a legion of cases that said your emotional reaction to offensive speech is not enough. If that is the core of our First Amendment, what I hear, and that’s what I think the court below said, is you can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming fraudulently that they got one. They don’t think less of the medal. We’re reacting to the fact that we’re offended by the thought that someone’s claiming an honor they didn’t receive. So outside of the emotional reaction, 3 where’s the harm? And I’m not minimizing it. I too take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.

JUSTICE SCALIA: Do we give some deference to Congress as to whether there is a harm to governmental purposes or do we make it up ourselves? When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished. By charlatans. That’s what Congress thought. Is that utterly unreasonable, that we can’t accept it?

JUSTICE KENNEDY: Well, it’s a matter -­ it’s a matter of common sense that [the actions of phonies) seems to me that it demeans the medal.

JUSTICE ALITO: You acknowledge that the First Amendment allows the prohibition or the regulation of false speech if it causes at least certain kinds of harms. And the problem I have with your argument is determining which harms you think count and which harms don’t count. Would you go as far as was suggested earlier to say that only pecuniary harm counts?

JUSTICE ALITO: It seems to me what you’re arguing is that we should determine that there are certain harms that are sufficient to allow the prohibition of a false statement and there are certain harms that are not sufficient, irrespective of what judgment Congress made about the significance of those harms. Is that — is that accurate?
MR. LIBBY: That’s certainly part of it. I mean, we believe that there needs to be imminent harm, that it needs to be targeted harm to an individual or to — to government function, that it can’t be the type of diffuse harm that the government goes to place here.

JUSTICE BREYER: My theory is that it does hurt the Medal, the purpose, the objective, the honor, for people falsely to go around saying that they have this medal when they don’t. Okay? So I might be wrong about that. I just ask you to assume that for purposes of argument, because what I’m trying to get to is I want as big a list as I can to think about of what the less restrictive alternatives are, or might be.

About the chilling effect.

JUSTICE KAGAN: Mr. Libby, let’s suppose that I agree with Gertz that there is no constitutional value in a false statement of fact, and the reason why we protect some false statements of fact is to protect truthful speech. So if, if that’s so, is — how is it that this statute will chill any truthful speech? What truthful speech will this statute chill?
MR. LIBBY: Your Honor, it’s not that it may necessarily chill any truthful speech. I mean, it’s -­ we certainly concede that one typically knows whether or not one has won a medal or not. We certainly — we concede that point.
JUSTICE KAGAN: So, boy, I mean, that’s a big concession, Mr. Libby.

CHIEF JUSTICE ROBERTS: I suppose it might have something to do with, whether called collateral or not, I mean, I would think the concern in the midst of a political campaign is you have the U.S. attorney or the deputy district attorney bringing a — filing a prosecution of someone 2 weeks before the election saying, you lied about this or that and maybe there would have to be a deposition or maybe there would have to be a trial. Nothing like that is involved here.

Art I, Section 8 Argument…

JUSTICE GINSBURG: Did the military — did the military act for this? You’re claiming there’s a special interest in seeing that a military honor is not debased.
GENERAL VERRILLI: It did not, Justice Ginsburg, but under Article I, section 8, Congress has substantial authority to regulate our armed forces, get substantial deference. It’s not unlike the statute that the Court evaluated in the FAIR case in that regard, which was not a statute that the military — that the military asked for, but Congress nevertheless was given substantial deference.
JUSTICE SCALIA: Did the Commander in Chief sign that, that legislation?
GENERAL VERRILLI: Yes, he did, Your Honor.

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  1. This ain’t Hell On U.S. Vs Alvarez » Pirate's Cove | February 23, 2012
  1. CI says:

    Great news!

  2. Lucky says:

    In my best Emperor Palpatine voice: “Good, Good!”

  3. DaveO says:

    Usually Justice Kennedy has a knee-jerk love for Free Speech. Unusual that he’d come down against the broadest definition of speech presented.

    Kagan, Sotomayor – not too surprised there. In Kagan’s case she has to establish her jurisprudence that will support the Imperial Presidency.

  4. NHSparky says:

    What’s the great news, CI–the fact that it seems that SVA will be upheld, or that VT Woody and TSO weren’t spooning?

    HEYOOOOOO!!!

    But yeah, it’s not good for your argument when you have to concede in front of the SCOTUS that your main point about chilling free speech is pretty much bullshit. Not that Kagan and the “Wise Latina” have much qualification to judge about that.

  5. Hondo says:

    TSO: if you get a link to an online transcript, please post same here.

    And thanks for being there today.

  6. fmedges says:

    Funny, this asshole claims that by lying about being in the military and military decorations that he didn’t receive he wasn’t “harming” anyone. Just last week I read an article about someone who stole 900,000 in VA benefits by lying about his service, or the guy who received free hunting trips and a free rifle because of his false military claims. Seems pretty harmful to me. Why don’t you go to the Walter Reed Army Medical Center and explain to those guys how exactly you should gain off of their sacrifices.

  7. Old Trooper says:

    I second what Hondo said; Thanks for being there for all of us (and thank VT Woody as well). And, thanks for clarifying the you and VT Woody did not spoon. I know the temptation must have been great, but you two showed great restraint.

  8. NHSparky says:

    Uh, cause Walter Reed is closed?

    And yeah, Jonn and the guys have covered the two you mentioned and a great many more on these pages.

  9. fmedges says:

    Fair enough, I’ll keep my opinions to myself.

  10. Hondo says:

    This loosk to be it, folks. Haven’t had enough time to read enough to be positive, though.

    http://www.supremecourt.gov/oral_arguments/argument_transcripts/11-210.pdf

  11. NHSparky says:

    fmedges–sorry, not in my “kinder, gentler” mood today. Wasn’t trying to bust your chops (too much).

  12. Lucky says:

    Hondo, how about a cliffnotes version?

  13. Hondo says:

    Lucky: don’t think court transcripts generally come in Cliff Notes versions. If there’s one for this case, I have no idea where it might be.

    Am about 1/3 of the way through a quick read. It does indeed seem to be the transcript of today’s oral arguments on US v. Alvarez.

  14. fmedges says:

    NHSparky,

    it’s cool man. I enjoy this site, but I don’t have a lot of time to spend reading everything on here. I will think more about things I post in the future. People who lie about their military service is one of those things that really frustrates me.

  15. Lucky says:

    Hondo, I figured, whats the context, yea or la (Farsi), are they going to blackball SVA?

  16. Hondo says:

    Hooooo boy. Both lawyers caught heat – but looks like TSO was spot on. The Solicitor General, Ferrelli, got beaten a bit – but Alvarez’s lawyer, Libby, got the zamboni treatment. Even the Court’s liberals hit Libby pretty damn hard – maybe harder than the conservatives. And Kagan(!) of all people beat him like a drum! It can’t be good when you have to concede that the law you’re opposing on First Amendment grounds would not have a chilling affect on any protected speech whatsoever.

    For what it’s worth: I’m only an educated layman and not a lawyer, so take my “take” on this with the proverbial grain of salt. I’m pretty sure that JAGC, Susan, and TSO (and maybe some others, like Alberich) are lawyers and would be better qualified to give an assessment than I.

    – break –

    Lucky: Sorry. I can’t answer that question. The SCOTUS has a mind of its own, and often surprises – sometimes pleasantly, sometimes not. I’d guess this one to be close enough to go either way. But that’s better odds than I’d have given earlier.

    In any case, we’ll all know in a few months.

  17. Hondo says:

    Sorry – that should be “the Solicitor General, Verrilli” above. Don’t have a clue where I got “Ferrelli” from.

  18. Radar says:

    Great report, thanks for info!

    @8, Walter Reed is still open, it just moved a few blocks west and took over the Navy facility…still interesting getting prescriptions at Ft Belvoir from blue cammo’d USN pharm techs. Is the blue designed to hide overboard sailors from sharks?

  19. TSO says:

    My rough first draft of news story on it. (Grammar and spelling not fixed)

    Supreme Court hears arguments in Stolen Valor case

    On Wednesday the Supreme Court heard oral arguments in the case of Xavier Alvarez who was charged with a violation of the Stolen Valor Act for his fraudulent claim to be a Medal of Honor recipient. The case reached the high court on appeal from the 9th circuit which held that the act, which outlaws fraudulent claims of receiving military awards or honors, was an unconstitutional abridgment of free speech. The government appealed that decision, and was joined by The American Legion and others in asking the court to uphold the validity of that Act.

    Alvarez has never served a day in the military, however after being elected to a local water board in California made the claim that he was a Medal of Honor recipient. While even his own defense attorney noted that Alvarez was an inveterate liar, Alvarez was nonetheless supported by various free speech advocates who felt that the statute was overly broad.

    Although it is dangerous to read much into the questions posed by the Justices to the attorney’s, several colloquies may signal how some of the Justices may fall on the case. Most of the questions fell along two parallel questions: 1) what is the nature of the harm (if any) caused by fraudulent claims of military heroism, and 2) would upholding the statute have a “chilling effect” on other constitutional speech, such as those made in political campaigns.

    Justice Breyer in particular seemed unwilling to accept the argument that no harm occurs from these lies saying that “My theory is that it does hurt the Medal, the purpose, the objective, the honor, for people falsely to go around saying that they have this medal when they don’t.” Justice Scalia, another First Amendment stalwart, noted that perhaps deference should be made to the Congress. “When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished.”

    On the question of whether upholding the act would chill other protected speech, the Public Defender for Alvarez seemed to concede that no such chilling effect would take place. When asked by Justice Kagan what truthful speech would be chilled by upholding the act, the attorney surprised most present, including the Justices by stating “it’s not that it may necessarily chill any truthful speech. I mean, it’s -­ we certainly concede that one typically knows whether or not one has won a medal or not. We certainly — we concede that point.” Justice Kagan responded with surprise, noting “so, boy, I mean, that’s a big concession, Mr. Libby.”

    It may be months before the high court sends down its’ ruling.

  20. NHSparky says:

    blue cammo’d USN pharm techs. Is the blue designed to hide overboard sailors from sharks?

    The word for it is “aquaflage”. Glad I never had to wear that shit.

  21. Flagwaver says:

    @3 – Dave O, I’m not surprised by Kennedy. He may be a free speech shill, but his family has a long list of merits from the service, not the least of which was John F. Kennedy and his heroism in the Navy.

  22. SIGO says:

    I read the transcript above and I think Kagan will vote no whereas Sotomayor might vote yes. She seems like she is on the fence.

  23. 0311 says:

    Choice quote from Justice Scalia:

    “How about giving a Medal of Shame to those who have falsely claimed to have earned the Medal of Valor? I think that would be good.”

  24. Beretverde says:

    Thank you so much for attending and posting what is transpiring.

  25. Lucky says:

    TSO thanks to you and VTWoody for attending, wish I could have been there!!!! And thank you for the analysis!

  26. JAGC says:

    This is neither here nor there, but every so often the Supreme Court will swear in to its bar a large group of Judge Advocates from the various services. During my swearing-in, we were all in uniform, and Kagan made a point to visit with us afterwards and spent a lot of time meeting with each officer individually. She seemed genuinely appreciative of the military legal mission and military personnel in general. While I doubt this will play into her decision in this case, everyone came out of there with respect for her, regardless of where they fall politically.

  27. Steadfast&Loyal says:

    Well done all.

  28. defendUSA says:

    Nice post…I’d never make it as a lawyer…way too passionate and sometimes have trouble keeping objective…

  29. Hondo says:

    0311: rather than a Medal of Shame, if convicted I’d prefer to see as part of their sentence that they be listed – prominently, and in perpetuity, along with a copy of their trial’s transcript – on a national web site dedicated to publicizing Stolen Valor cases. But that’s just me.

    Also gotta say that I like Scalia’s idea too. (smile)

  30. 1stCavRVN11B says:

    Thanks for attending the hearing and keeping us abreast. At least there is a chance SCOTUS will do the right thing.

  31. OWB says:

    Thanks, guys, for being there and reporting back! Makes the wait so much more tolerable.

  32. Scouts Out says:

    @29 I agree with the database idea. I have conflicting thoughts on the SVA, because I do think it’s overly broad. People who claim military bona fides, like the guy mentioned earlier who bilked the VA for disability or that scumbag who faked being a SEAL for the rifle are comittimg fraud, plain and simple. We don’t need a new law to fight that, we already have fraud laws. BUT I do think that a Stolen Valor stipulation could be added to existing fraud statutes to make the penalties much harsher if someone fakes military service or decoration in the commission of fraud.

    As for the Balldusters, Barwans, and Snake Eyes or the world, I think a year in prison is not only a bit harsh, but also a waste of tax payer money. Instead of paying to lock these shitheads up, I’d like to see a public shaming, much like what this blog is so good at, like a national database, and a really hefty fine. Instead of costing public money these guys could be a source of it, money that could be used to help real servicemembers (not holding my breath here). With the amount of phonies out there this could be a regular cottage industry.

  33. Doug Sterner says:

    Thanks for being there and it was so great to meet you, to introduce you to former FBI Agent Tom Cottone (the man I consider the “father of the Stolen Valor Act,” and my wife Pam who wrote this. It was indeed Brian Thacker (MOH/RVN) that you met. Also, Leo Thorsness (MOH/RVN), a former POW of the Vietnam War and Past PResident of the CMOH Society was there. I join you in guarded optimism…In some ways, Atty Libby did a GREAT JOB for our SIDE…especially in his admission that lies about awards would not chill free speech. Thanks guys for your great support and serious dedication to get there.

  34. Anonymous says:

    Mr. Sterner:

    No sir; thank you. Without your efforts several years ago, today would never have happened – because without your efforts, there would be no Stolen Valor Act.

  35. VTWoody says:

    I have to admit, it was quite a day for me TSO. You were right, that I was blown away that you could have such a calm discussion with two guys from the other side of this thing. That they were there to defend (be it for one because his fiance was involved) the trash that sees no issue with claiming honors they not only didnt earn, but who would have run when faced with the situations they claim to have been a part of. I know I could never make it in your world, I’d be yelling far too often to be employable.
    Not only was I there for what hopefully ends up in our favor, I got to meet the guys who are spearheading the work we all appreciate. Thank you again for the invite.

  36. OldSoldier54 says:

    Well done, TSO, VTWoody, Mr. Sterner, Mrs. Sterner, et al. Legal proceedings bore me to tears, so I appreciate the brief on a subject near and dear.

  37. Virtual Insanity says:

    Great post guys, and thanks for going. My son was hoping to be there, but had to attend another conference in town.

    Did the discussion range into the definition of “benefits” that are gained from the false claims of military honors? It’s easy to show the big fraudsters–$900k in DVA bennies, hunting trips, etc.–but at what threshold is the phony gaining “benefit” from the lie?

    Is it membership in a Veteran’s organization that gets lower insurance rates? Cheaper drinks?

    How about if it gets you laid, when you otherwise wouldn’t?

    My point here (and I do have one) is that the mere claim of unearned honors gains you immediate benefits you would not otherwise get. Isn’t that fraud? Isn’t that enough to make the SVA valid?

  38. DaveO says:

    Personally, I’d enjoy being wrong and seeing a 9-0 decision. I’d be even more pleased if the opinions written by the justices leave no wiggle room.

  39. Hondo says:

    Virtual Insanity: I’ve held all along that fraud need not involve monetary benefit – the “thing of benefit” obtained through deceit or misrepresentation IMO need not be tangible. Prestige and respect – as well as getting laid – would IMO qualify. Moreover, the harm need also not be tangible; the damage to the prestige and respect accorded to actual combat veterans and/or those decorated by posers would also seem to me to be enough. But I’m no lawyer, and I’m not sure the SCOTUS will agree.

    DaveO: my guess is it will be a 6-3 or 5-4 decision, and could go either way. And the “social lying” aspect is that which is most problematic IMO. My worry is that it will be that aspect that may well cause the SCOTUS to overturn the law on free speech grounds. But they may well uphold the law and carve out a “private conversation” or “social lying” exception, or some such. Or uphold it cleanly. Or do something else entirely.

    With the SCOTUS, it’s like Forrest Gump’s box of chocolates – you never really know what you’re gonna get before you read the final decision.

  40. Bubblehead Ray says:

    Great report TSO. You and Woody be da mans!

    Sparky, the only purpose I can see in the new Aquaphage is to enable sailors to hide from the Chief. :)

  41. Jason says:

    Its nice how Sotomayor made the argument about herself and then proceeded to tell everyone that she is single and dating.

    She must be really desperate.

  42. WOTN says:

    Wasn’t Sotomayer appointed so she could empathize with the downtrodden, instead of the Constitution? Will she defend the offensive speech of “hate speech” against legislators?

    “Hate speech” is opinion, albeit disagreeable and idiotic opinion.

    Stolen Valor is a lie, as is perjury, false claims of being a member of the Bar, the Judiciary, Law Enforcement, or medical profession. Neither is fraud, slander, or libel protected.

    The 1st Amendment protects offensive speech, because unoffensive speech needs no protection, but it does not protect lies, as lies cause harm to the recipient by lending false credibility to the liar, and to those that have earned those credentials.

    If one were to gain high profile employment based on a JD from Harvard that did not exist, would that also be protected? Or would the elites of government find that to be outside the protections? While the elites may disagree, and 7 years of education is not required, the Sacrifices, Difficulties, and Risks which precede the award of the Medal of Honor, are far greater than sitting in a college classroom, reading books, and writing papers.

  43. Kaitian says:

    @21, Justice Kennedy is not a member of the Kennedy Family by a long shot.

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