Officially before the Supreme Court as United States vs. Alvarez, the court ruled today that the Stolen Valor Act, as passed and signed into law, is unconstitutional.
The Stolen Valor Act made it a criminal offense and fined and/or imprisoned anyone who “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof.”
Almost exactly two years ago, I wrote that I thought the act was unconstitutional. I noted that I felt like the act violated the First Amendment in the way it was written. Today, the Supreme Court verified my assertion in a 6-3 ruling:
Content-based restrictions on speech have been permitted only for a few historic categories of speech, including incitement, obscenity, defamation, speech integral to criminal conduct, so-called “fightingwords,” child pornography, fraud, true threats, and speech presentingsome grave and imminent threat the Government has the power to prevent.
During the hearing before the Court, the government listed several examples that support their claim the law is constitutional. I’m only going to focus on one argument since it’s the argument that most of my friends and supporters of the SVA have used: impersonating a government official. Someone claiming veteran status does not constitute impersonating a government official. It would be no different than claiming to have once been a millionaire. The Court ruled that “to the extent that they implicate fraud orspeech integral to criminal conduct, are inapplicable here” while also noting that “there are statutes that prohibit falsely representing that one is speaking on behalf of the Government, or prohibit impersonating a Government officer.” Therefore, SVA in that context is redundant.
I have always argued that people have the right to lie about their exploits, talents, or other areas of their personality. However, when those lies are used to commit fraud, we already have laws on the books dealing with that. As written, the SVA sets a dangerous precedent if allowed to remain on the books. The Court recognized this and noted:
The Act seeks to control and suppress all false statements on this one subject in almost limitless times and settings without regard to whether the lie was made for the purpose of material gain. Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.
If allowed to stand, the government could feasibly make laws against other types of speech, like lying about penis size.
There is an argument that supports this law that states those lying about earning particular medals dishonor those that legitimately earned them or the medals themselves. I disagree with this argument. The only people that are dishonored are those low-lifes that try to pass themselves off as truly honorable people. In reality, no one is hurt by the simple act of claiming to own a particular military award or decoration. When those lies result in someone – like SGT Tim Poe – receiving benefits that he isn’t entitled to, I believe it falls within the realm of fraud and should be prosecuted along those lines. The court agrees:
While the Government’s interest in protecting the integrity of the Medal of Honor is beyond question, the First Amendment requires that there be a direct causal link between the restriction imposed and the injury to be prevented. Here, that link has not been shown. The Government points to no evidence supporting its claim that the public’s general perception of military awards is diluted byfalse claims such as those made by respondent. And it has not shown, and cannot show, why counterspeech, such as the ridicule respondent received online and in the press, would not suffice to achieve its interest.
I love that last line because that’s exactly what I’ve been saying all along. While lying shouldn’t be against the law, those perpetrating a fraud by claiming to be something they are not should be ridiculed in the public square. Their names should be passed around to employers, clubs, and government offices to prevent these people from seeking respectable employment – at least for a certain period of time.
As a matter of fact, the same free speech that posers use to lie about their valor is the same free speech we can use to out them – counterspeech. It’s because of free speech that not only should liars (not under oath) be protected but those of us that expose them. Because of our great first amendment, we can follow these guys around with large signs with a large arrow and the word fraud on it! Justice Kennedy mentioned this in his opinion:
“The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony.” Once the lie was made public, he was ridiculed online…his actions were reported in the press…and a fellow board member called for his resignation…There is good reason to believe that a similar fate would befall other false claimants.“
As long as there are blogs like This Ain’t Hell, Mudville Gazette, Blackfive and others, these idiots WILL suffer a similar fate. This is great joy of liberty and free speech in this country. Drunks who boast about owning a yacht in a seedy bar are instantly outed by his sober friends instead of being charged with a crime.
One of the problems we currently face is that it isn’t easy to verify the authenticity of claims currently. There should be an easy way to out frauds. The Court noted in its opinion that if the government feels as if the integrity of the awards system is being jeopardized by these frauds, they should create a system or database that is available to the general public. In doing so, groups like the VFW, smalltown town halls, and individuals with an interest in protecting the honor of these awards and their awardees (like my friends at This Ain’t Hell).
It’s difficult to take the stance I do as a Soldier. As I noted in my post two years ago, “I love the intent of the SVA, but I don’t want laws passed on what people think is or is not a good idea.” I still believe it and I’m glad the Court does too.
What Congress needs to do is strengthen its fraud laws to make it a more serious offense to commit fraud through the perpetration of false claims to valorous medals or military service. THAT is a “stolen valor law” I could get behind.
I am surprised that Justice Roberts didnt rewrite the case to fit his interpretation. After all if he can do it for one case he can do it for any others he wishes.
If our rights to lie were not protected by the first ammendment, we would not have any politicians!
Concur, but I do feel that those who “pose” and recieve gain from it should come under some penalty….Say that I’m fishing for funds for my “business”, you visit my establishment, based on seeing items on the “love me wall”, you invest in my company…Mind you, I haven’t pushed you to invest solely based on the fake awards…I’ll throw in that yes, I should do a bit more looking into your “awards”, but not everyone does that…Anyhow, you end up loosing a substantial amount of money on the deal and can’t use the stance that you gave me the money based on my inflated stories and awards…I know this may be an exception example but it was off the cuff….I’m glad there are those dedicated to ensuring that these individuals are outed though..
par excellence, as is usual for you, CJ. Was reading this decision just yesterday, trying to catch up on the end of the month SCOTUS doc dump, and I also was glad to see the decision. Were this deemed constitutional, it would steal more than valor for our genuine warriors… it would have rendered their work and sacrifice completely worthless when the 1st Amendment was gutted. So many don’t understand… the 1st is not there to protect speech with which we concur… but to protect that with which we disagree.
Everything our dear leader says would have become illegal!!!
@Sua Sponte:
Good point SS! I’m just now finishing up my second book, a fiction crime story in Texas, and my protagonist, a retired career AF Chief Master Sgt Security Cop, keeps his ‘grip & grins with the higher ups’ in an album on a side cabinet and hangs pictures of 3 and 4 stripers on his wall. Invariably, when a ranking visitor, military or civilian, come into his office – they are moved to ask why.
When he explains that they are his heroes, some of whom actually saved his life over in Sandland — it takes a while for some of the pointy toed shoe crowd a while to understand…..
BTW, as a retired career Air Force guy — I agree 100% with the court’s finding in this instance. If we let politicians chip away at the First Amendment with ‘feel good’ legislation — who decides where it ends…….?
Meh, let the military self police this; with the understanding that no jury in America would convict a U.S. Service-person of any crime related to a justifiable ass-kicking. Problem solved.