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Does The New Stolen Valor Act Pass Constitutional Muster?

I wholeheartedly agree with James Joyner’s arguments against The Stolen Valor Act of 2012. After reading his post, though, decided to click over and check out exactly what the new proposed law said to see if it adequately addressed the Supreme Court’s concerns, expressed in June’s decision in United States v. Alvarez, that the law as originally written was unconstitutionally overly broad in that it purported to criminalize speech that is protected by the First Amendment.

As you may recall, that case involved a man named Xavier Alvarez who, shortly after winning election to a Water District Board of Directors position claimed at a public meeting of the board to have been a 25 year veteran of the Marine Corps who won the Congressional Medal Of Honor back in 1987. None of these facts were true, and Alvarez was prosecuted under the Stolen Valor Act, a law passed in 2005 and signed into law by President Bush. Under the law, Alvarez faced as much as a year in prison. Rather than go to trial, Alvarez pleaded guilty to the charge while reserving the right to challenge the laws Constitutionality on appeal. In August 2010, a panel of the 9th Circuit Court of Appeals found the law to be unconstitutional, and that decision was affirmed by the entire 9th Circuit in March 2011. Last June, of course, the Supreme Court agreed with the 9th Circuit and found the law unconstitutional.

The probable, and adverse, effect of the Act on freedom of expression illustrates, in a fundamental way, the reasons for the Law’s distrust of content-based speech prohibitions. The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It can be assumed that it would not apply to, say, a theatrical performance. See Milkovich v. Lorain Journal Co., 497 U. S. 1, 20 (1990) (recognizing that some statements nominally purporting to contain false facts in reality “cannot reasonably be interpreted as stating actual facts about an individual” (internal quotation marks and brackets omitted)). Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 539-540 (1987) (prohibiting a nonprofit corporation from exploiting the “commercial magnetism” of the word “Olympic” when organizing an athletic competition (internal quotation marks omitted)).

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment,it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

In his concurring opinion, Justice Breyer suggested that a more narrowly tailored law may indeed have passed Constitutional scrutiny:

[A] more finely tailored statute might, as other kinds of statutes prohibiting false factual statements have done, insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to beharmful or on contexts where such lies are most likely tocause harm.

(…)

The Government has provided no convincing explanation as to why a more finely tailored statute would notwork. In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective. That being so, I find the statute as presently drafted works disproportionate constitutional harm. It consequently fails intermediate scrutiny, and so violates the First Amendment.

So, the question is whether what is now before Congress addresses those concerns. Well, here’s what the new statute says:

Whoever, with the intent of securing a tangible benefit or personal gain, knowingly, falsely, and materially represents himself or herself through any written or oral communication (including a resume) to have served in the Armed Forces of  the United States or to have been awarded any decoration, medal, ribbon, or other device authorized by Congress or pursuant to Federal law for the Armed Forces of the United States, shall be fined under this title, imprisoned for not more than 6 months, or
both.

”(2) TANGIBLE BENEFIT OR PERSONAL GAIN.— For purposes of this subsection, the term ‘tangible benefit or personal gain’ includes—

”(A) a benefit relating to military service provided by the Federal Government or a State or local government;

”(B) public or private employment;

”(C) financial remuneration;

”(D) an effect on the outcome of a criminal or civil court proceeding;

”(E) election of the speaker to paying office; and

”(F) appointment to a board or leadership position of a non-profit organization.

In essence the law limits punishment to those cases where a misrepresentation is made for the purpose of obtaining some type of personal gain. In other words, fraud. As I’ve noted before, fraud has never never been entitled to First Amendment protection, and that seems to be what the new law is aimed at. Specifically, the law seeks to punish people who misrepresent the receipt of military honors for the purpose of receiving some kind of gain, whether from the state or from private entities. While we will have to wait until the law is actually enforced, assuming it is passed which seems likely, to see exactly how it will be applied, it seems clear that most of this new law would likely survive the Constitutional challenge that doomed its predecessor.

One possible problem I see with the the law is Subsection (E) which makes it a crime to make such a representation during the course of a political campaign. This potentially crosses a line that, should the issue ever get before it, the Supreme Court likely won’t be willing to cross. If there’s one area of speech where the “marketplace of ideas” argument applies, it’s politics. The idea that politicians and their opponents should be free to say nearly anything and that the public can base its decision based on what they hear is pretty much what politics is about. Furthermore, if we’re going to start punishing candidates for misrepresentations during the course of our campaign, we are  going to be spending a lot of time policing speech that ought to be allowed to flourish as much as possible.

FinallyI have to wonder what the purpose of this law actually is. To the extent that a person who is making a misrepresentation about a military honor is defrauding someone, there are already laws at the Federal and State level that would punish them, as long as there was a monetary loss. In addition, someone defrauded by such a person would have a right to sue them in civil court and obtain a judgment that, depending on the facts of the case, would not even be dischargeble in Bankruptcy. Do we really need to add a new Federal criminal statute to the books and devote FBI resources to something like this? I just don’t see the justification.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Geek, Esq. says:

    I could see a court striking section E and letting the rest stand.

    In terms of resources, there would still be a pretty effective resources/deterrent ratio–these cases would almost all plead out and even if going to trial would be straightforward affairs with simple evidentiary questions, and it would make fraudsters think twice about glibly lying about their service records.

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  2. @Geek, Esq.

    In 2009 alone, the FBI investigated 200 of these cases. That strikes me as a waste of resources. It strikes me that those agents would have been better deployed investigating violent crimes, terrorism, child pornography, and the like.

    Like or Dislike: Thumb up 8 Thumb down 0

  3. Ben says:

    Again I ask: if this only applies to cases where the liar is trying to defraud someone, why not just prosecute them for fraud? Why does this law have to exist?

    Like or Dislike: Thumb up 6 Thumb down 0

  4. grumpy realist says:

    The only roundabout way I can think of getting to these guys is a) having the military trademark the medals, then b) get the liars on trademark infringement. Won’t work if they actually have purchased the old-but-genuine medals, of course….

    Like or Dislike: Thumb up 0 Thumb down 0

  5. Geek, Esq. says:

    @Doug Mataconis:

    That does seem like too many. On the one hand, maybe there should be a federal version of a slap on the wrist, but then again that would just get abused too.

    Like or Dislike: Thumb up 0 Thumb down 2

  6. Geek, Esq. says:

    @Ben:

    Definitional issues and also jurisdictional. The feds can’t prosecute all kinds of fraud–if you simply swindle someone based on in person communications, they won’t tag you as it doesn’t touch commerce power jurisdiction, hence the wire and mail fraud categories.

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  7. Ben says:

    @Geek, Esq.:

    Why does the federal government need to get involved here? If some guy defrauds someone by lying about having medals and honors that he doesn’t have, why can’t a state court prosecute him for fraud based on that? Surely you don’t need a federal court to determine whether someone has a medal or not.

    Like or Dislike: Thumb up 1 Thumb down 0

  8. Geek, Esq. says:

    @Ben:

    Federal interest being protected–the medals are federal honors, and the harm from such fraud includes degrading the meaning of such medals. If everyone is allowed to lie about having them, then they start to lose meaning. Much like if everyone were allowed to make knock-off Louis Vuitton bags, the real thing would lose value.

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  9. Ben says:

    @Geek, Esq.:

    Again, “degrading the meaning of such medals” is not a legally recognized harm, and the Supreme Court has already ruled that this alleged “harm” is sufficient to overcome the First Amendment. Only harms that are monetary or “tangible” are in discussion here.

    And in the case of those harms, the Feds need not be involved, unless it occurs in such a manner as to invoke federal jurisdiction.

    Like or Dislike: Thumb up 1 Thumb down 0

  10. Geek, Esq. says:

    @Ben:

    If there’s a federal interest being protected, then the federal government has jurisdiction to protect them via legislation.

    The question is the limiting principle on exercises of that jurisdiction.

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  11. James Joyner says:

    IANAL but it strikes me that ”(A) a benefit relating to military service provided by the Federal Government or a State or local government” is a black letter case of fraud. Although I don’t know how one perpetrates it absent a DD214. If one forges one of those, then it’s REALLY fraud.

    The rest of these, though, strike me as possibly something less than fraud:

    ”(B) public or private employment;

    Why is claiming to be a war hero different from claiming to have a college degree or a previous job?

    ”(C) financial remuneration;

    So, a guy panhanding claiming to be a homeless vet?

    ”(D) an effect on the outcome of a criminal or civil court proceeding;

    Why different from any other reputational puffery? Is it punishable to claim to be an expert if you’re not? And, if it’s a material fact, isn’t it already perjury?

    ”(E) election of the speaker to paying office;

    So, ordinary political lying?

    ”(F) appointment to a board or leadership position of a non-profit organization.

    Again, as noted in the original post, how is this different from any other sort of lie? It’s easy for a board to verify veteran claims.

    Like or Dislike: Thumb up 2 Thumb down 0

  12. Rafer Janders says:

    @Geek, Esq.:

    On the one hand, maybe there should be a federal version of a slap on the wrist, but then again that would just get abused too.

    Why should there be? If the liar is found out, he will face shame and opprobrium — why isn’t that enough?

    Suppose I cheat on my spouse — should there be a federal version of a slap on the wrist for that, too? After all, a sound marriage is one of the foundations of our society….

    Like or Dislike: Thumb up 5 Thumb down 0

  13. Rafer Janders says:

    @Geek, Esq.:

    If everyone is allowed to lie about having them, then they start to lose meaning.

    OK, fine. If everyone is allowed to lie about them, then they’ll start to lose meaning — which will be fine, because the fact that everybody has chosen to lie about them will indicate that no-one really thoughty they had meaning in the first place, which will also indicate there was no real meaning to protect. Or, as Joseph Heller put it:

    Yossarian: Those bastards are trying to kill me.
    1st Lt. Milo Minderbinder: No one is trying to kill you sweetheart. Now eat your dessert like a good boy.
    Yossarian: Oh yeah? Then why are they shooting at me Milo?
    Dobbs: They’re shooting at everyone Yossarian.
    Yossarian: And what difference does that make?
    Dobbs: Look Yossarian, suppose, I mean just suppose everyone thought the same way you do.
    Yossarian: Then I’d be a damn fool to think any different.

    Like or Dislike: Thumb up 4 Thumb down 0

  14. Rafer Janders says:

    @Geek, Esq.:

    Much like if everyone were allowed to make knock-off Louis Vuitton bags, the real thing would lose value.

    Well, not much like. For one thing, the Louis Vuitton case falls clearly under trademark law. For another, a Louis Vuitton bag is a physical object, and if enough people buy the knock-offs, Louis Vuitton will face direct and quantifiable economic harm because people will stop buying the real bags.

    But can we really argue with a straight face that there’s a finite market for courage in the armed forces the same way that there’s a finite market for high-end handbags? Will soldiers and sailors stop being brave? Men and women in combat don’t perform boldly because they want to earn medals – they do it for their buddies, to save themselves or others, or because they’re overcome by adrenaline and the heat of combat. A medal is the last thing on anyone’s mind.

    Like or Dislike: Thumb up 3 Thumb down 0

  15. grumpy realist says:

    Remember that the elements of fraud are a) knowingly misrepresenting a b) material fact, c) on which someone relied, d) causing damages.

    We don’t allow people to run around claiming to be doctors when they aren’t; why do we allow people to run around claiming that they’re medal recipients when they aren’t?

    Like or Dislike: Thumb up 1 Thumb down 0

  16. @Ben:

    Again I ask: if this only applies to cases where the liar is trying to defraud someone, why not just prosecute them for fraud? Why does this law have to exist?

    Passing laws against things that are already illegal anyways is a favorite way for politicians to pander to voters.

    Like or Dislike: Thumb up 2 Thumb down 0

  17. Tsar Nicholas says:

    That really is a cool “Catch-22″ reference up there in the thread.

    In any event, we need yet another redundantly redundant federal criminal statute about as much as Octomom needs another kid or Joan Rivers needs another round under the knife. Regular criminal fraud under state law more than covers all the necessary bases. And the Feds have much bigger fish to fry.

    Like or Dislike: Thumb up 2 Thumb down 0

  18. Rafer Janders says:

    @grumpy realist:

    We don’t allow people to run around claiming to be doctors when they aren’t; why do we allow people to run around claiming that they’re medal recipients when they aren’t?

    Because if people run around claiming to be doctors when they aren’t, then other people may allow them to operate on or otherwise treat them, resulting in grave physical harm or even death. If someone runs around claiming to be a medal recipient when they aren’t, what am I going to ask them to do for me — fall onto a grenade? Storm my neighbor’s machine gun nest?

    And while we don’t allow people to run around claiming to be doctors when they aren’t, we do run around letting people claim to be businessmen, actors, musicians, surfers, housewives, writers, political experts, election prognosticators, flower arrangers, priests, prophets and even God when they aren’t.

    Like or Dislike: Thumb up 4 Thumb down 0

  19. HarvardLaw92 says:

    Not to seem nitpicky, but where is the injury here? I agree that these people are reprehensible, but this seems like an attempt to invent an end-run around the statute of frauds. There is no material injury that I can see, and in the unlikely event that one did occur, well, that’s why we have a statute of frauds in the first place.

    Like or Dislike: Thumb up 2 Thumb down 0

  20. HarvardLaw92 says:

    @grumpy realist:

    We have no problem at all with people asserting that they are doctors. We take issue with them actually trying to practice medicine without a license & causing harm. A lie, reprehensible as it may be, does not in and of itself constitute a federal issue. When someone actually perpetrates a fraud, well like I said, that’s why we have the concept of a statute of frauds.

    Like or Dislike: Thumb up 1 Thumb down 0

  21. Rafer Janders says:

    @HarvardLaw92:

    We have no problem at all with people asserting that they are doctors. We take issue with them actually trying to practice medicine without a license & causing harm.

    Good point, and one I should have caught. Our mutual alma mater should be ashamed of me.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. Rafer Janders says:

    @grumpy realist:

    remember that the elements of fraud are a) knowingly misrepresenting a b) material fact, c) on which someone relied, d) causing damages.

    So we’ve got (a) and, perhaps (b), if you consider this a “material” fact, but in most cases I don’t see how you’d ever get to (c) and (d). How exactly would you rely on someone’s claim (absent other qualifications, that is) and for what purposes, and how exactly could you be damaged? And if all four elements were met, well then, as others have pointed out, then you already have a straight up fraud claim so what do you need this law for?

    Like or Dislike: Thumb up 2 Thumb down 1

  23. HarvardLaw92 says:

    @Geek, Esq.:

    So you are in essence trying to tell me that a Navy Cross winner, for example will view his medal as meaningless if someone lies about having been awarded one?

    That’s a serious stretch. It’s an even bigger stretch to attempt to assert that the valid holder has been injured.

    I agree that these liars are reprehensible people, but something simply being offensive isn’t really a basis for criminalizing it.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. John Burgess says:

    @James Joyner: While I generally agree, I can readily see someone claiming Veteran status to get a leg up in child custody cases. Either gender could do it, but it would still be a display of supposed merit.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. John Burgess says:

    Oh… BTW, isn’t a six-month jail sentence at the misdemeanor (i.e., slap on the wrist) level?

    Like or Dislike: Thumb up 0 Thumb down 0

  26. HarvardLaw92 says:

    @Rafer Janders:

    Again, not to be nitpicky, but there are 5 necessary elements to a fraud:

    False statement of a material fact

    Knowledge on the part of the utterer that the statement is false

    Intent on the part of the utterer to deceive

    Reliance by the ostensible victim on the statement

    Injury in fact to the ostensible victim as a result of said reliance

    Like or Dislike: Thumb up 0 Thumb down 0

  27. HarvardLaw92 says:

    @John Burgess:

    And that would constitute perjury. We already have statutes for that.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. HarvardLaw92 says:

    Note that if we want to get seriously technical and microscopic, under the common law there are NINE elements to a fraud. The five elements delineated above consolidate some of those nine elements.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Rafer Janders says:

    @John Burgess:

    While I generally agree, I can readily see someone claiming Veteran status to get a leg up in child custody cases.

    But if they did that, that’s straight up perjury. Again, lying to the court is already a state criminal offense, so why the need to federalize it with an additional charge? And why punish this lie more than others?

    Like or Dislike: Thumb up 2 Thumb down 0

  30. Rafer Janders says:

    @HarvardLaw92:

    Yeah, I was quoting grumpy realist’s post.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. Tsar Nicholas says:

    @HarvardLaw92: Dude, FYI the “statute of frauds” is a contract topic. It relates to verbal contracts, not to “fraud” in the intentional misrepresentation context. I stayed at a Holiday Inn last night, so that’s how I know that.

    In any case, I’ve thought about how absurd this law is, and most importantly how unnecessary it is, and the related issue of how much of an affront to federalism it is, and in so doing I’ve come up with a ranking of the 5 dumbest federal criminal laws over the past 20 years:

    5. Sarbanes-Oxley.
    4. Dodd-Frank.
    3. The Violence Against Women Act.
    2. The Stolen Valor Act.
    1. The Can Spam Act.

    Like or Dislike: Thumb up 0 Thumb down 1

  32. HarvardLaw92 says:

    @Tsar Nicholas:

    The term “statute of frauds” flows from an act of the English Parliament, titled ” An Act for Prevention of Frauds and Perjuries”. In that context, it constitutes the basis for the common law concept of frauds as understood in the US and from which we obtain the common law elements of a fraud. This is the context in which I was speaking.

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  33. mantis says:

    @HarvardLaw92:

    Obviously you didn’t stay at a Holiday Inn.

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  34. bill says:

    so it’s up to whoever is running against one of these frauds, or the media to figure it out!? well it should be by then, that anyone can get elected on bogus achievements is just a “shame on us” for not vetting them. there’s a special place in hell for these people hopefully.

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  35. Brummagem Joe says:

    This is one of those feel good laws much beloved of Americans.

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  36. 11B40 says:

    Greetings:

    Is there a reason why the Silver Star and Purple Heart medals are shown face down ??? Not that I’d want to interfere with anyone’s free speech or worse yet artistic expression.

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  37. Andy says:

    @HarvardLaw92: So what you are saying is if he gets a barwench to sleep with him solely on account of his stolen valor lie, that’s fraud?

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  38. HarvardLaw92 says:

    @Andy:

    1) The burden of proof would be on the barwench, and she’d never meet it

    2) I’m still having a difficult time seeing the material injury.

    Like or Dislike: Thumb up 0 Thumb down 0