First Amendment

April 4, 2011 by  
Filed under Blogs, Hot Button / Lynn Ashby


Xavier Alvarez appeared at a public meeting of the Three Valleys Municipal Water District in California in 2007 wearing a Medal of Honor. Alvarez said he received it while serving as a U.S. Marine. No doubt he was praised for his heroism, maybe somebody bought him a drink afterwards. There was just one problem, as you may suspect by now, Alvarez was a total phony. This obviously makes us think of Gregory Lee Johnson and Texas.

Let’s start with Xavier Alvarez. For wearing an unauthorized medal, he was prosecuted under a 2005 federal law, the Stolen Valor Act, which is pretty self-explanatory. (His case was the first one prosecuted.) He entered a guilty plea in federal court in Los Angeles and was sentenced to three years’ probation, 416 hours of community service and fines of $5,100. But he challenged the constitutionality of the law.

A three-judge panel of the Ninth U.S. Circuit Court of Appeals in San Francisco ruled 2-1 that the law was unconstitutional because it abridged the wannabe hero’s First Amendment protection of freedom of speech. The case went to the full 26-judge federal appeals court which upheld the lower court’s decision, although seven conservative justices disagreed, saying that “the right to lie is not a fundamental right under the Constitution.”

Why are we not surprised? You see, the Ninth Circuit Court is considered in judicial circles to be the Loony Tunes by the Bay. This is the same court where judges ruled in 2002 the “under God” part of the Pledge of Allegiance was unconstitutional. That was overturned.

In the Stolen Valor case, writing for the majority, Chief Judge Alex Kozinski decreed that if the government can go after someone who lies about an award, it can prosecute “the dentist who assures you it won’t hurt a bit.” Hiz Honor also wrote, “Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes.” He compared Alvarez’ fib with perpetuating a child’s belief in Santa Claus.

A brief side note: The medal is not the “Congressional Medal of Honor.” Leave out the Congressional. It is awarded in the name of Congress. Also, we recipients never say we “won” the honor. It’s not a lottery. It is “awarded” or “received.” Finally, isn’t the endearing term, “Honey,” not “hunny”?

Anyway, freedom of speech is a slippery slope. A few weeks ago SCOTUS (that’s journalese for the Supreme Court Of The United States) ruled that those jerks who harass funerals of fallen troops have that First Amendment right. They show up a 1,000 feet from the gravesite singing songs and waving signs that read, “You’re Going to Hell” and “Thank God for Dead Soldiers” as part of their protest of the government’s policy on don’t-ask, don’t-tell.
Albert Snyder, the father of a U.S. Marine killed in Iraq in 2006, whose funeral was protested by the group, sued its leader, Rev. Fred Phelps, and members of his Westboro Baptist Church. A jury awarded Snyder $5 million, but the case ended up in front of SCOTUS which ruled the flock of the Westboro Baptist Church can protest. Even so, Rev. Phelps and his followers are lucky the pallbearers at young Snyder’s funeral weren’t members of his Marine rifle platoon, otherwise the cemetery might have needed more tombstones.

The First Amendment was cited again when some bozo preacher (what is it about our hate-filled Christian leaders?) wanted to burn a Koran. Rev. Terry Jones of the Dove World Outreach Center said he would burn copies of the Koran to protest the religion of Islam. He backed off after he got enough TV exposure. In Amarillo, copycat David Grisham, director of Repent Amarillo, also planned to burn a Koran in public. But just as he was ready, Jacob Isom, a 23-year-old skateboarder, snatched the book from Grisham’s clutches and ran. Later, Isom told a TV crew: “I was like, ‘Dude, you have no Koran!’ ”

As all of us constitutional scholars know, the Bill of Rights was an add-on to the Constitution, and has been in dispute ever since. The Sedition Act of 1798, signed by President John Adams, allowed the prosecution of anyone suspected of plotting against the federal government. The act also made it a crime to speak or write maliciously about the president or Congress. The Sedition Act expired two years later and was never renewed. It’s just as well, otherwise the entire Fox News staff would be behind bars.

Freedom of speech has come under fire especially during wartime. For example, during World War I, Congress passed several laws, including the Espionage Act of 1917, limiting language that could encourage disloyalty to the U.S. Also during that time, a Federal Censorship Board regulated taking “subversive” books off the shelves of stores and libraries. There goes Barnes & Noble.
There have been umpteen legal fights over crosses and the Ten Commandants in public places — Houston had a long-running battle about a Bible in a glass case in front of the county courthouse – all swirling around the First Amendment. Then there was the recent Citizens United case. Judges have generally upheld the freedom issue, but it has long been the rule that you can’t yell, “Fire!” in a crowded theater, unless it is preceded by, “Ready, aim” as I was telling John Wilkes Booth.

All of which brings us to Gregory Lee Johnson. During the 1984 Republican National Convention in Dallas, Johnson set an American flag on fire. He was arrested and charged with violating a Texas law criminalizing vandalism of venerated objects. Johnson was convicted and sentenced to one year in prison and fined $2,000. His case went to SCOTUS and, again, the Supremes ruled that the law was unconstitutional because it limited freedom of speech. Today no one knows what happened to Johnson, and no one cares. As for Xavier Alvarez, he was imprisoned on an unrelated fraud matter. Good.

Ashby judges at

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