On Aug. 7, 1782, Gen. George Washington, the commander in chief of the Continental Army, created by order the Badge of Military Merit. His actual order read:

“Let it be known that he who wears the Military Order of the Purple Heart has given of his blood in the defense of his homeland and shall forever be revered by his fellow countrymen.”

In creating the predecessor to the Purple Heart, Gen. Washington wished “to honor those who performed ‘singularly meritorious action’ with ‘the figure of a heart in purple cloth.’ Those who demonstrated ‘unusual gallantry, . . . . extraordinary fidelity, and essential service in any way, [would] meet with a due reward.”

At the same time, Gen. Washington ordered that:

“Should any who are not entitled to the honors have the insolence to assume the badges of them, they shall be severely punished.’

So who could seriously question the validity of such a command? Well, believe it or not, the Ninth Circuit Court of Appeals did in United States v. Alvarez. In the words of the court, here is what happened.

Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, . .. newly-seated Director Alvarez arose and 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.” Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a Marine or in the service of any other branch of the United States Armed Forces. In short, with the exception of ‘I’m still around,’ his self-introduction was nothing but a series of bizarre lies.”

Alvarez was then indicted under the Stolen Valor Act for “falsely representing verbally that he had been awarded the Congressional Medal of Honor when, in truth, and as [he] knew, he had not received the Congressional Medal of Honor.”

Alvarez pled guilty on the condition that he could challenge the constitutionality of the Stolen Valor Act which he then did.

Of course, the Stolen Valor Act is not the first law to make lying illegal. There are crimes for lying under oath (perjury), lying on tax returns (tax fraud), lying in making claims (false claims acts), and lying to get a ballot (election fraud). It is against the law to impersonate a law enforcement officer. But, according to the court, these ‘noncontroversial criminal laws’ “raise no constitutional concerns even though they can be violated by means of speech.”

According to the court, “many lies may be made the subject of a criminal law without creating a constitutional problem,” just not the Stolen Valor Act which happens to protect the reputation and meaning of military decorations and medals. Indeed, in a 2-1 decision, the court struck down the Stolen Valor Act as unconstitutional because, in the words of the court, “it is not narrowly tailored to achieve a compelling governmental interest.”

How could the court reach such a conclusion? Well, according to this court, “there is no readily apparent reason for assuming, without specific proof, that the reputation and meaning of military decorations is harmed every time someone lies about having received one.” These are words clearly spoken by people who have no clue.

In his dissent, Judge Jay Bybee injected a jolt of reality. In addition to the description of the background of Gen. Washington’s order, here is what he said:

“The hubris of Alvarez’s claim to have received the Congressional Medal of Honor in 1987 may not be apparent to ordinary Americans, and it may not have been obvious at the joint meeting of the water districts, but it would not have been lost on the men and women who are serving or have served in our armed services. By his statement, Alvarez claimed status in a most select group: American servicemen who lived to receive the Congressional Medal of Honor. No living soldier has received the Congressional Medal of Honor since the Vietnam War.

Alvarez’s statements dishonor every Congressional Medal of Honor winner, every service member who has been decorated in any way, and every American now serving. Such ‘insolence . . . .[may] be . . . punished.”

As Judge Bybee put it, “false representations not only dishonor the decorations and medals themselves, but dilute the select group of those who have earned the nation’s gratitude for their valor. Every nation needs to honor heroes, to thank them for their selflessness, and to hold them out as an example worthy of emulation. The harm flowing from those who have crowned themselves unworthily is surely self-evident.”

Randy Evans is an Atlanta attorney with McKenna Long & Aldrige LLP. He is the former General Counsel of the Georgia Republican Party and remains active in the party on both the state and national level. He can be reached at www.mckennalong.com or McKenna Long & Aldrige LLP, Suite 5300, 303 Peachtree St., Atlanta, GA 30308.