Attorney Rees Lloyd
March 29, 2011
The Ninth Circuit Court of Appeals, the most liberal and most reversed circuit in the country, has further fueled the fire and ire of Americans claiming a modern “judicial tyranny,” by the 9th Circuit’s recent refusal to grant a rehearing of its prior decision declaring the Stolen Valor Act an unconstitutional violation of "freedom of speech" under the First Amendment, thus effectively creating a "right to lie" about military service and receipt of the Medal of Honor and other medals of valor. (US v. Alvarez, No. 08-50345, Order Denying Petition For Panel Rehearing and Rehearing En Banc. March 21, 2011, accessible on the Ninth Circuit Court of Appeals website.).
That refusal, and the manner in which was made by the participation of Chief Judge Alex Kozinski, a proven imprudent porno pervert (see below), provides further evidence of the need for Americans to carefully examine the ever-expanding usurpation of power by the judiciary, and to examine just who are the lawyers sitting as judges who are effectively amending the Constitution by judicial fiat and thereby transforming America in their own vision and image rather than the Founding Fathers’ vision and image
Congress since 1948 has found that it is in the public interest to protect the reputation and meaning of the Medal of Honor – and to protect the public from being deceived – by imposing criminal penalties against unscrupulous imposters who falsely represent that they have received the Medal of Honor or other medals of valor. The Stolen Valor Act of 2006 (18 U.S. Code Section 704) is the latest enactment providing those protections.
However, the 9th Circuit declared the Stolen Valor Act to be an unenforceable, unconstitutional violation of First Amendment “freedom of speech,” last August. That is, two judges on the 9th Circuit -- the third dissented -- effectively created a constitutional “right to lie” as a general rule of First Amendment jurisprudence. (See, my NewsWithViews.com column at that time for more details on the initial decision.)
That Stolen Valor Act decision overturned the conviction of Xavier Alvarez. He is a Democrat Party politician who was elected to the Three Valley Water District Board in San Bernardino County, CA. There he claimed to be a “retired marine” who served 25 years; had been “wounded” in combat multiple times; and had been awarded the “Medal of Honor.” Alavarez, backed by the ACLU, pleaded guilty to the violation of the Stolen Valor Act on the condition that he could appeal the conviction on the ground the Stolen Valor Act was unconstitutional. He has not been around to celebrate his victories over the American people in the 9th Circuit as he remains incarcerated in prison on a separate conviction for defrauding the public in his elected position. True to form, Alvarez, former Democrat office holder, is represented now by the public defender at public expense.
The 2-to-1 decision in the Alvarez case striking down the Stolen Valor Act and creating a constitutional “right to lie,” was written by Judge Milan Dale Smith, Jr. (a lawyer who is a native of Pendleton, OR, but practiced law in Los Angeles), joined by Judge Thomas G. Nelson (an Idaho lawyer, the only one with military service, i.e., Army Reserve, 1965-1968).
Concisely stated, their majority decision holds that the Stolen Valor Act is unconstitutional because it punishes “speech,” i.e., lies about receipt of the Medal of Honor and other medals of valor, but does not require evidence that someone suffered actual “harm” as a result.
Judge Jay S. Bybee dissented in a detailed opinion. In it, he traced Supreme Court precedent establishing a general rule that false statements of fact i.e., “lies,” are not constitutionally protected speech unless they fall into exceptions to that general rule. He argued that the majority decision reverses that rule, and creates a general rule that false statements, i.e., “lies,” are constitutionally protected speech unless they fall into exceptions rendering them unprotected.
Further, Judge Bybee warned that the new rule, an effective constitutional right to lie, has an impact far beyond the Stolen Valor Act. This includes possibly nullifying statutory prohibitions against illegal aliens making false statements of facts pertaining to their status in the country.
That is, Judge Bybee warned in dissent: “Numerous statutes are called into question by the majority’s opinion…statutes that punish false statements and do not appear to require proof of harm,” he wrote, citing, among others: “18 U.S.C. [Section] 1015(a) (punishing ‘any false statement under oath, in any case, proceeding, or matter relating to…naturalization, citizenship, or registry of aliens’)….”
A petition for rehearing by the three-member panel, or for an en banc hearing was filed. It has now been denied. Judge Smith, who wrote the original opinion declaring the Stolen Valor Act unconstitutional, wrote an extensive opinion, joined by Chief Judge Alex Kozinski, concurring in the denial rehearing en banc. Very interestingly, Chief Kozinski elected to write a separate opinion of his own concurring in the denial en banc (discussed below).
An interesting aspect of Smith’s argument that he was right in the first place and no rehearing should be granted (which is essentially his argument), is his awkward choice to buttress his argument by citing, of all people in a case involving the military and military culture and values, Ms. Elena Kagan, Supreme Court appointee of President Barack Hussein Obama. It apparently did not strike Smith as odd that he would point to Kagan for support that the Stolen Valor Act is an unconstitutional infringement of free speech, notwithstanding that it was she who infamously kicked the Reserve Officer Training Corps (ROTC) off of the Harvard Campus (demonstrating her progressive liberal tolerance), and it was she who pursued her wrongful act all the way to the Supreme Court, which ruled she was wrong the entire time. (A qualification, apparently, to serve on the Obama Court.)
Notwithstanding, Smith writes: “Although the [Supreme] Court has stated that false statements of fact are unworthy of First Amendment protection, the Court has never held that false speech is per se, or even presumptively, unprotected by the First Amendement [emphasis in original]. Indeed, one of the current members of the Court, while working as a law professor, recognized ‘[t]he near absolute protection given to false but nondefamatory statements of fact outside the commercial realm.” Elena Kagan [law revew citation omitted]”
While I am not at all surprised that a member of the Supreme Court appointed by Obama would want to provide “near absolute protection” to “false but not nondefamatory statements of fact,” I would be surprised, indeed, if the American people would agree that Founding Fathers believed that “false…statements of fact,” i.e., lies, were what they intended to protect in the First Amendment. It will also be interesting to see if Kagan will disqualify herself if the Stolen Valor Act reaches the Supreme Court for review.
strong dissent was filed urging that rehearing should be granted. The
dissenting judges rejected the First Amendment analysis, including the
resulting consequences of a “right to lie.” The dissenting
opinion of Judge O’Scannlain, was joined by Circuit Judges Gould,
Bybee (dissenter in the orginal three-member decision), Callahan, Bea,
Ikuta, and N.R. Smith, all dissenting from the denial of rehearing en
banc. Judge Gould filed a separate concurring opinion.
The dissenting judges urged rehearing the Stolen Valor Act decision was wrongfully decided, and the resulting "right to lie" doctrine of the 9th Circuit imperils other laws criminalizing false speech. The dissenters point out, among other things, that the decision to declare the Stolen Valor Act unconstitutional “on its face” because it does not require a showing of “harm” to someone else, itself flies in the fact of many statutes penalizing pure speech which do not require proof that someone was harmed thereby. Included among the many examples cited, are false statements by illegal aliens regarding their right to be in the country which lies are presently punishable as crimes under federal statutes. (18 U.S. Code §1015(a), as Judge Bybee pointed out in his original dissent. Think of the 19 Saudi Islamist terrorists who lied their way into America and attacked us on 9-11-2001; or the 12-20 million illegal alien Mexicans and others in America right now living lies to remain. Will there lies which do not harm any particular individual now be a matter of “freedom of speech” and thus uttered with impunity?
VALOR STOLEN BY CHIEF JUDGE ALEX KOZINSKI
Perhaps the most telling aspect of the 9th Circuit decision to deny rehearing in the Stolen Valor Case is how valor was stolen by 9th Circuit Chief Judge Alex Kozinski. He used the opportunity to insert himself by way of a long, smug, snobby, condescending, supercilious, show-off concurring opinion trivializing the issue of imposters lying about receipt of the Medal of Honor. (If you don’t believe this description, read it at the Ninth Circuit Website, U.S. vs. Alvarez.)
Kozinski, often celebrated as possessing a "great legal mind," and as a "great champion of First Amendment speech rights," is a favorite of those with a Libertarian not to say Libertine view on the Right as well as of the ACLU on the Left. He is also a proven porno pervert. Kozinski, another Harvard spawned "great legal mind," has made himself, in my opinion, a dancing bear clown of the Federal Judiciary, using the 9th Circuit court as a personal stage to celebrate himself, show-off, and shape American culture in his own moral (or immoral) image.
Kozinski brought great scandal to himself, to the judiciary generally, and to the 9th Circuit in particular, when he was exposed as having maintained pornographic matter on his publicly accessible computer in an L.A. Times exposé in 2008, while Kozinski, ironically enough, was presiding over a pornography trial in L.A.
Ninth Circuit Chief Judge Kozinski’s pornographic delights included such things as naked women on all fours painted as cows, as noted above; female crotch shots, including a woman barbering her pubic hair ("His Honor" the judge perhaps considering a post-retirement second career); and, among other things, a video of "a half-dressed man cavorting with a sexually aroused farm animal.” I am not making this up.
In his concurring opinion, Kozinski pontificates on how there is not only a constitutionally protected right to lie, but it is a fundamental right tied up with “self-expression” and “personal autonomy.” Thus, he writes, absurdly as it may be, that:
“Alvarez’ conviction is especially troubling because he is being punished for speaking about himself, the kind of speech that is intimately bound up with a particularly important First Amendment purpose: self-expression.”
Got that? Alaverez is a victim. Claiming USMC service and receiving the Medal of Honor is a matter of “self-expression” protected by the First Amendment. Chief Judge Kozinsky of Harvard explains for the unwashed his legal doctrine of a right to lie:
“It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive.”
Got that? Are you ready to teach that to your children? Remember: These are the words of the Chief Judge of the 9th Circuit Court of Appeals, one of the most prestigious government offices any American could hold. And he, in a published opinion, writes that the Constitution created by George Washington and the Founding Fathers created a “right to lie” as “[a]n important aspect of personal autonomy,” a “right to shape one’s public and private persona by choosing when to tell the truth, when to conceal and when to deceive,” i.e., to lie.
This is astounding legal doctrine and appalling public policy, a standard of conduct that is on its face abhorrent. A “right to lie”? Geoege Washington, “who would not tell a lie,” is now interpreted by Chief Judge Alex Kosinski, to have intended in the First Amendment a “right to lie.” The Constitution is thus modernly amended by lawyers sitting as judges to include rights that would appall Gen. Washington and the Founders
It would be beyond belief that an American judge would articulate such ethical dross in his official capacity, but for the fact that Judge Alex Kozinski has now writ it in stone in this published opinion.
Further, Kozinski, “great legal mind” notwithstanding, concludes this astounding judicial articulation of a constitutionally protected right to lie with an utterly disgusting sophistic emission of intellectual flatulence: “How can you develop a reputation as a straight shooter,” Judge Alex Kozinski writes, “if lying is not an option?”
“Lying is…an option”? This judicial teaching from the bench perhaps explains how “His Honor Judge Kozinski” – an oxymoron if there ever was one – can don his judicial gown, ascend to the judicial bench, and look down from his high perch upon the American citizens before him to dispense such wisdom as described above, like a feudal lord instructing peasants, and then descend from the bench to lasciviously gape at porno featuring naked women posed on all fours and painted like cows, a fact which the good judge then feels free to conceal until publicly exposed.
Further, Kozinski, in the audacity of his conceits and the arrogance of his judicial godlikeness, trivializes the Stolen Valor Act, demeans the integrity of the Medal of Honor and other medals of valor, and demeans all those who have earned those medals by military service to the nation. Kozinski does so by equating lying about receipt of the Medal of Honor to lies told for petty purposes. He has a long series of examples, e.g., to please a boss, or to excuse an absence, or to avoid a contact, or to deceive a woman, or, among other things, a lie to excuse not using a condom in sex ("I'm allergic to latex"). Very funny. Very judicial. Very Kozinski. Very consistent with the moral content of a porno pervert.
But, this Harvard-lawyer "great legal mind," this porno pervert in robes who never deigned to serve a day in defense of this his adopted country, who has the power, as a Judge, to decide for the American people that the Stolen Valor Act must be struck down and rendered unenforceable as a violation of "freedom of speech." It was also Kozinski who wrote the manifestly snobby, snotty, demeaning to veterans 9th Circuit decision that the Mojave Desert Veterans Memorial must be destroyed because of a cross established there in 1934 by veterans to honor WWII veterans.(Buono vs. Norton) – a Kozinski decision which the U.S. Supreme Court reversed on April 28, 2010. (Salazar vs. Buono). It is the 9th Circuit, led by Kozinski, which has also declared the Mt. Soledad National Veterans Memorial must be destroyed because of the cross honoring veterans there.
It is Kozinki's 9th Circuit which will decide whether for the first time in the history of the country that the Founding Fathers intended to include in the Constitution that marriage should be by and between men and men, or women and women, rather than a union of a man and woman (both human, ACLU objections notwithstanding).
Kozinski, when caught by the L.A. Times eposé, himself described his porno material as "gross" and "degrading to women." Significantly, Kozinaki testified before the resulting investigating judicial tribunal that he “really didn't know why” he kept such pornographic filth, degrading to women, and didn’t know why he didn’t act sufficiently to ensure it wasn’t publicly accessible from his computer,even after he was informed it was being accessed.
Thus, it has to be asked: If Alex Kozinski, he of the Harvard-trained “great legal mind,” doesn't know why he gaped at porno and was so delighted by the sight of women painted as cows and posed on all fours, or of a half-clothed man "cavorting with a sexually aroused from animal" that he saved it on his home computer which was publicly accessible, how can he be intellectually and morally qualified to interpret the Constitution of George Washington and the Founding Fathers and thereby determine the culture of the United States under that Constitution?
Kozinski called for the judicial investigation after the Los Angeles Times exposed his porno predilections in 2008, which caused a public scandal. The investigation was carried out by the Third Circuit. Kozinski admitted in that investigation that he had brought the judiciary into disrepute with potential damage to the "confidence" of the public in the judiciary. However, while he groveled before his lawyer-judge colleagues in that investigation, Kozinski did not do the right thing and simply resign. Instead, American taxpayers bore the costs of an investigation and hearing. His fellow lawyer-judges found Kozinski guilty of imprudent conduct which brought the judiciary into disrepute. Then Kozinski’s lawyer-judge colleagues imposed a very gentle slap on the wrist, i.e., a public admonishment , about which few of the public actually are aware.
Kozinski was the Chief Judge of the 9th Circuit at the time he was exposed in 2008, and still is after being found guilty in 2009. Thus, he obviously still has the support of his fellow federal judges in the 9th Circuit, not one of whom who has publicly criticized Kozinski’s guilty conduct nor moved to remove him, as far as is known.
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Now, Kozinski, proven imprudent porno pervert, exercises the judicial power to decide for the American nation that the American people cannot through their elected representatives in Congress protect Medal of Honor and other medals of valor from exploitation by lying imposters.
Americans should examine the Stolen Valor Case closely, for all that it means in regard to the nation protecting the integrity of its medals of military valor, and all that it eveals about the modern American judiciary. The American people should render their own verdict: The Stolen Valor Act should not be stricken down by Judge Alex Kozinski. Instead, Judge Alex Kozinski should be stricken down from the federal judiciary, to go in peace to his pornography and not purport to transform America in his own image.
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REES LLOYD is a longtime civil rights attorney and veterans activist whose work has been honored by, among others, the California Senate and Assembly, and numerous civil rights, workers rights, and veterans rights organizations. He has testified as a constitutional expert at hearings before the U.S. House and Senate representing The American Legion.
He has been profiled, and his work featured, by such varied print media as the Los Angeles Times and American Legion Magazine, and such broadcast media as ABC's Nightline and 20/20, Fox News In The Morning, and, among others, by Hannity. His writings have appeared in a variety of national, regional, and local newspaper, magazine, and other publications. He is a frequent radio commentator, and a sought after speaker.*
[*For identification only. The views expressed here are solely Rees Lloyd's and not necessarily any person, entity or organization he may otherwise represent. ]