Academic journal article Brigham Young University Law Review

Defining Fraud as an Unprotected Category of Speech: Why the Ninth Circuit Should Have Upheld the Stolen Valor Act in United States V. Alvarez

Academic journal article Brigham Young University Law Review

Defining Fraud as an Unprotected Category of Speech: Why the Ninth Circuit Should Have Upheld the Stolen Valor Act in United States V. Alvarez

Article excerpt


In United States v. Alvarez, Xavier Alvarez, having pled guilty to charges of violating the Stolen Valor Act (SVA) by falsely claiming to have received the Congressional Medal of Honor, appealed the issue of the SVA's constitutionality to the Ninth Circuit.1 Alvarez claimed that under the First Amendment, the SVA was unconstitutional both facially and as applied.2 The Ninth Circuit agreed with Alvarez and under strict-scrutiny review held that the SVA was unconstitutional on its face and as applied to Alvarez.3 Judge Bybee dissented and argued that false statements of fact are not protected under the First Amendment, except in limited circumstances, and that this was not one of those circumstances.4 The Ninth Circuit declined to rehear the case en bane;5 however, the Supreme Court granted certiorari.6

This Note agrees with the dissent that the SVA is constitutional but does not address the validity of the dissent's argument that false statements of fact are categorically unprotected speech. Rather, this Note argues that the SVA is constitutional because it prohibits only fraudulent misrepresentations, a recognized category of unprotected speech. First, Part II of this Note provides an overview of the facts and the Ninth Circuit opinion in United States v. Alvarez. Part III then discusses the legal background of fraud law so as to determine what characteristics the misrepresentations prohibited under the SVA must have in order to qualify as fraud. Finally, Part IV proposes a test based on that legal background for courts to use in deciding whether to classify speech as fraudulent and then applies that test to the misrepresentations prohibited under the SVA. Part V concludes.


A. Facts and Procedural History

Alvarez was an elected member of the Three Valley Water District Board of Directors in 2007. At a joint meeting with another water-district board, Alvarez publicly introduced himself stating, "I'm a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I'm still around."7 With the exception of the phrase, "I'm still around," everything that Alvarez stated was nothing more than "a series of bizarre lies," as he has never spent even a single day in any of the United States armed forces.8 The FBI obtained a recording of these misrepresentations and charged Alvarez with violating the SVA, which prohibits people from falsely representing themselves as having received congressional military medals and honors.9 Alvarez moved to dismiss the indictment, claiming the SVA was unconstitutional as applied to him and on its face. The United States District Court for the Central District of California denied his motion and convicted him. Alvarez appealed the constitutional issue.10

B. Ninth Circuit Opinion

In the Ninth Circuit Alvarez opinion, the majority held that because the SVA constitutes a content-based regulation of speech, it should be subjected to strict scrutiny unless it fits into one of the "well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem."11 The majority specifically identified some of these narrowly limited classes as "obscenity, defamation, fraud, incitement, . . . speech integral to criminal conduct," "the lewd," "the profane, the libelous, and the insulting or 'fighting words,'"12 and rejected the dissent's main argument that the First Amendment does not protect false statements of fact.13

The dissent asserted that the Supreme Court has held false representations of fact to be categorically unprotected. In support of this assertion, the dissent cited various cases, particularly focusing on Gertz v. Robert Welch, Inc.,1* where the Court held that,

false statements of fact . . . belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. …

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