Water Boarding

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Drip by excruciating drip, this story drags on.

Our friend, Three Valleys Municipal Water District director Xavier Alvarez, is back in the news. No, he hasn't managed to get himself convicted of that federal misdemeanor charge of lying about being a Medal of Honor winner. Alvarez is the subject of a New York Times column today by Adam Liptak.

Alvarez finds himself in the pages of America's paper of record because of the strategy being employed in his defense by Alvarez's public defender, Brianna J. Fuller.

In a motion to dismiss the case filed on 12/21/07 with the federal court hearing the matter, Alvarez's attorney argued that the federal law under which Alvarez was charged is unconstitutional because it abridges Alvarez's First Amendment rights. Alvarez's counsel is arguing that Alvarez has a constitutionally-guaranteed right to lie.

In the filing's introduction, Alvarez's attorney lays out her arguments:

The law is unconstitutional, both facially and specifically as applied to Mr. Alvarez. Falsehoods are not outside the realm of First Amendment protection, and therefore restrictions on false statements must be supported by a strong government interest and must be directly related to that interest. The Court's scrutiny of the law should be especially demanding here, where the statement was made by an elected official, during a public meeting, on an issue of public concern: his qualifications for office. The Government's stated interest in this law, protecting the reputation of military decorations, is insufficient to survive this exacting scrutiny. For this reason, the statute is unconstitutional as applied to Mr. Alvarez and the indictment should be dismissed.

A politician's right to lie? Sort of defies commonsense, though it might make great grist for the late-night TV mills. However, UCLA Law School scholar and blogger Eugene Volokh also examined the Alvarez case and found that the issue isn't necessary as black-and-white as it might appear on first glance, though Volokh seems inclined to believe that Alvarez's arguments would probably not prevail.

Volokh notes that although there are certain exceptions protecting false statements as free speech, those exceptions don't necessarily apply here. For instance, in the Alvarez case, Alvarez's lies were knowing falsehoods, not innocent errors that might be considered protected speech.

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Volokh has a good summary of what he considers the relevant case law for the Alvarez matter. He also has a link to the Alvarez's actual motion to dismiss (pictured at left), and he has a link to the government's response to the Alvarez motion as well.

Meanwhile, back here in the Inland Empire, the Three Valleys water board has to contend with Alvarez and all the bad attention that the case has attracted, as the NYT's Adam Liptak noted:

In California, where Mr. Alvarez continues to sit on the board of the Three Valleys Municipal Water District, an elected position, patience is wearing thin.

“There’s no question he’s pathological,” said Bob G. Kuhn, the board’s president, recounting some of what has come out of Mr. Alvarez’s mouth. “He’s had three helicopter accidents. He’s been shot 16 times. These are all fabrications.”

But Mr. Kuhn said the board was powerless to expel Mr. Alvarez, who continues to receive $200 per meeting and health insurance. The board has censured him, though, for putting a woman he falsely claimed was his wife on the board’s health plan.

At first, Mr. Kuhn said, he took no position on the wisdom of the criminal prosecution of his colleague.

“But we’ve had 40 or 50 veterans parade before our board, asking him to publicly apologize,” Mr. Kuhn said. “He has refused to do that. With that said, I have no problem with the prosecution.”

Of course, we Insiders have to tread lightly when it comes to criticizing free speech arguments; after all, last September we had our 15 Warholian minutes in the blogosphere after Claremont City Attorney Sonia Carvalho tried to have us shut down. Unlike the Alvarez case, however, we were attacked for telling the truth, as was later proven.

Like you, we'll just have to wait until the trial, which is scheduled for next month, to find out what happens. Unless, that is, the case is dismissed.