9th Circuit Strikes Down Stolen Valor Act

August 20, 2010

The 9th Circuit recently considered the Stolen Valor Act, and struck it down as a facially invalid intrusion upon the 1st Amendment.  The act (18 USCA 704(b)) criminalizes a person falsely representing themselves as having received an award or medal for the Armed Forces.

The Defendant, Xavier Alvarez, had stated in front of a Water District Board of Directors (of which he was a member) the following:

“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.”


As the court stated, this was all a lie. The defendant never served in the military.  For reasons the 9thCircuit did not go into, the FBI was tasked with investigating Mr. Alvarez’s statements.  Mr. Alvarez subsequently was charged and pled guilty to violating the Stolen Valor Act.  He then appealed to the 9th Circuit. 

The 9th Circuit determined that false statements of fact in most circumstances do enjoy 1st amendment protection.  The court then went on to apply strict scrutiny to 18 USCA 704(b) and (somewhat predictably) found that the provision failed the strict scrutiny test and was facially invalid.

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