Congress Looks To Rewrite Stolen Valor Act

Congress seems to have gotten the message the Supreme Court sent last month about the Stolen Valor Act.

Lost amid all the attention that was paid on the last day of the Supreme Court’s term to the Court’s ruling on the constitutionality of the Affordable Care Act was the equally interesting decision in United States v. Alvarez in which the Court struck down the Stolen Valor Act as unconstitutional in a 6-3 decision. As James Joyner noted in his post on the decision, the Court’s decision essentially ruled that the law as drafted was invalid because it sought to punish speech independent of any harm that may have come from that speech. This strongly hinted that the Court might find a law that punished lying about military honors for the purpose of receiving benefits passes Constitutional muster. Indeed, in his Concurring Opinion in the case, Justice Stephen Breyer said the following

[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.

While Breyer is speaking here and not for the other five members of the majority in Alvarez, it seems like a fairly strong hint on his part that a law that was more narrowly tailored, and specifically one that focused on cases that were more akin to fraud then simply someone who lied about receiving a Medal of Honor out of the blue and received no apparent benefit as happened her, would be viewed very differently by the Court. Indeed, that is the core of the argument that I made in the posts that I wrote about this case while its made its way through the Court system (see here and here) As I said in October 2011, the Alvarez case was troublesome precisely because it attempted to make criminal an act that lacked one of the essential elements of any criminal offense:

Fraud and defamation have never been entitled to First Amendment protection, but there’s no alllegation of either of those in this case for a very simple reason. In order  to sustain such a claim, the false statements had to have been accompanied by real, quantifiable damages suffered by someone. No such damage occurred merely because Alvarez lied about having received a medal at the meeting.

If Alvarez had made this representation to, say, gain political contributions or votes, or obtain benefits from the government or some other organization, then this would have been a very different case. Because he didn’t, and because the law as written was so broad that it applied to situations that clearly didn’t qualify for criminal prosecution, the Court was required to strike it down. That’s why Congress is now working on a way to come up with a new version of the Stolen Valor Act that addresses the Court’s concerns:

Washington (CNN) – Capitol Hill lawmakers made a fresh push Tuesday to gain passage of a law that punishes those who lie about earning high military honors.

The Supreme Court ruled June 28 that the Stolen Valor Act of 2006 was unconstitutional, saying it violated the free speech rights of those making false claims about winning the Medal of Honor and other combat citations.

A revised, more narrow version would make it a federal misdemeanor for anyone to benefit financially from lying about military service, records or awards. That would include receiving federal veterans and health care benefits, government contracts or jobs reserved for veterans. Similar state and federal fraud statutes are already on the books, but this law codifies sanctions for those seeking to profit strictly from false military service.

“We must defend the valor of those who have served our country, especially those men and women who have earned awards for outstanding service, but that we also must protect the very liberties for which our service men and women sacrificed,” said Rep. Joe Heck, R-Nevada. “The Stolen Valor Act of 2011 would achieve both objectives.”

Brown and Heck’s bill would also expand the kind of false representations covered to include things such as seeing combat or being part of a special operations unit. However, as long as punishment is specifically limited to those situations where someone makes these mispresentations for the purpose of benefiting financially then it strikes me that most, if not all, of the First Amendment concerns would be completely satisfied. There is no First Amendment right to defraud someone for the purpose of obtaining a benefit, and there seems to me to be little danger of the law being applied in an over broad manner. The devil, of course, is in the details and there are other Senators talking about coming up with their own version of a revised Stolen Valor Act. However, as long as Congress stays within the boundaries Justice Breyer laid out, they likely will be able to pass a law that will past muster. Furthermore, punishing people who lie as part of a scheme to defraud is a far better use of judicial and prosecutorial resources than trying to punish a guy who was just being a blowhard.

FILED UNDER: Congress, Military Affairs, US Politics,
Doug Mataconis
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. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    A completely unnecessary piece of legislation.

  2. @al-Ameda:

    I do tend to mostly agree. Is there really an epidemic of people lying about military honors to receive benefits? I’m certainly not aware of it.

  3. al-Ameda says:

    @Doug Mataconis:

    Your article wrapped it up nicely, there are already provisions in the law to prosecute people who fraudulently represent themselves in a number of situations. This is just typical grandstanding by legislators who want to keep reminding everyone else of how much they respect veterans.

  4. Andy says:

    The Pentagon is looking to develop a database of valor awards to make it easy to check if someone is claiming an award. I think that is an option one or more of the justices also mentioned.

  5. James Joyner says:

    While I’ve been against the general notion of Stolen Valor laws since they were first being bandied about, I’m not necessarily against a very narrowly tailored law targeting actual fraud. I’d have to see the actual language.

  6. PD Shaw says:

    I would imagine any of these particular financial benefits (“federal veterans and health care benefits, government contracts or jobs reserved for veterans”) would only be available upon signing a form that has fine-print on it that providing false statements on this form is a federal crime.

  7. Tlaloc says:

    The Pentagon is looking to develop a database of valor awards to make it easy to check if someone is claiming an award. I think that is an option one or more of the justices also mentioned.

    rational, easy to do and constitutional. Trifecta.

  8. Andy says:

    @Tlaloc: Agreed, but I have two concerns – first is that the database must be accurate. Secondly, there must be a balance between a public database and the individual privacy of those who receive awards. I think individuals should probably be allowed to “opt-out” of the database.

  9. Jenos Idanian #13 says:

    I’ve lost count of how many phony “veterans” were hailed as leaders of the anti-war/anti-Bush movement. So color me surprised that it’s now being touted as no big deal.

    The primitive in me says that anyone who lies about receiving decorations or in some other way falsely claims military honor (Special Forces service, etc.) are reprehensible human beings. And any real veteran who kicks their ass over it should be fined a maximum of one dollar for doing so.

    OK, here are a few people who need their asses kicked: Jesse MacBeth, Micah Wright, Wes Cooley, Tom Harkin, Paul Lemmen, and Terry Powell.

    Similarly, Scott Thomas Beauchamp for his fabricating atrocities in Iraq.

  10. MM says:

    @Jenos Idanian #13: Nothing proves your tough guy bona fides like asking other people to do it for you.

  11. Jenos Idanian #13 says:

    @MM: Asking? No. “Empowering.” It’s the veterans whose honor is being stolen, not mine. I wouldn’t presume to take on their prerogative.

  12. Bennett says:

    @Jenos Idanian #13: I’ve met plenty of conservative types who have claimed they did all types of valorous things they obviously had not after a 5 minute conversation. Plenty of lefties too. Stupidity and douchbaggery knows no party lines. It would be you who would bring politics into what is a non-partisan issue. You need a new act. And for what it’s worth, as an actual combat veteran with lots of vet friends, I can tell you that meeting a fake servicemember doesn’t make me want to beat anyone up. It just makes me sad for them. Animosity is reserved for those who question my service. A reason why I lost so much respect for John Kerry during the Swiftboating fiasco. He should have torn everyone a new asshole over that thing.

  13. Jenos Idanian #13 says:

    @Bennett: I’ll simplify the matter for you: I never served. Medically unfit, never bothered to even try.

    And yeah, there are plenty of lying scum on both sides of the spectrum. I just cited the most recent prominent examples. I see it as an extension of “identity politics” — people aren’t secure enough in their message that they have to claim personal credibility, to be able to falsely argue from authority (in itself a logical fallacy). See Elizabeth Warren and her claims to be part Indian, for another type.

    I’ve known vets. I have (well, had — they’ve passed on) vets in my family. And it’s my respect for them and their brethren that I get angered at those who falsely claim honors.

  14. Ken says:

    @Jenos Idanian #13:

    Similarly, Scott Thomas Beauchamp for his fabricating atrocities in Iraq.

    Would that be the same Scott Beauchamp who earned an Honorable Discharge while seven of the other men in Delta Company – including the highest ranking NCO, First Sergeant John Hatley – were charged with various war crimes, including premeditated murder? yeah, he’s a really bad guy, that Scott.

  15. al-Ameda says:

    @Jenos Idanian #13:

    I’ve lost count of how many phony “veterans” were hailed as leaders of the anti-war/anti-Bush movement. So color me surprised that it’s now being touted as no big deal.

    So I take it you were a fan of the Swift Boat Veterans for “Truth”?
    You believed those fraudulent grease balls?

  16. Davebo says:

    Seriously guys. To those of us who didn’t fabricate some physical ailment to justify avoiding service like Jenos and Limbaugh do replies to his BS really serve a function?

    The idiot speaks for himself.

  17. al-Ameda says:

    @Davebo:

    Seriously guys. To those of us who didn’t fabricate some physical ailment to justify avoiding service like Jenos and Limbaugh do replies to his BS really serve a function?

    I avoided Vietnam the respectable middle class way – I registered just out of high school, and shortly thereafter a draft lottery was implemented. I got a high numbers in the draft lottery and my number was never called. I worked so hard to get those numbers in the 300’s.

  18. Jenos Idanian #13 says:

    @Davebo: Go screw yourself. I’m of an age where the draft wasn’t even a childhood memory (although I still had to register). I knew from a young age that my medical conditions put limits on my future, including any military service, any kind of piloting, and definitely not an astronaut. That last one was the one that hurt the most.

    So I’m not allowed to respect and admire those I can’t emulate? Again, go screw yourself.

  19. Davebo says:

    So I’m not allowed to respect and admire those I can’t emulate? Again, go screw yourself.

    Says the guy who just blatantly lied about one of those people who actually served.

    And I’m fairly sure it’s physically impossible for me to screw myself. Hence my 23 year marriage, following my 5 years in the military.

  20. MM says:

    @Jenos Idanian #13: What an intensely dishonest frame.

  21. Jenos Idanian #13 says:

    @Davebo: Says the guy who just blatantly lied about one of those people who actually served.

    Every single individual I mentioned lied about their military service, and was caught. So either back up your “blatantly lied” with an example, or STFU.

    If you’re referring to Scott Thomas Beauchamp, he fabricated story after story of atrocities committed by him and his unit in a series of articles for The New Republic. And your citing of other members of his unit is even more damning — apparently there were actual bad things happening within his unit that he did NOT report on. (Apparently he was too busy making stuff up at the time.)

    If you’re referring to Tom Harkin, he claimed to have flown “combat missions” over Viet Nam. He later “clarified” his statement to admit that no, he hadn’t flown combat missions.

    So, just who exactly did I “blatantly lie” about? Or are you pulling a Beauchamp here?

  22. Al says:

    As a veteran this legislation makes me very happy. Clearly if congress is taking on this issue then other, much more pressing problems that vets face today such as long term effects from traumatic injuries, PTSD related mental heath issues and higher than average unemployment rates after they leave the service must have all been taken care of.

    I must have missed it in the news, though. What’d they end up doing to fix all of that?

  23. Jenos Idanian #13 says:

    @Al: When you put it that way, you remind me of the stupid anti-flag-burning laws.

    The difference there is, there’s just a general insult being offered, and it’s honest. In this case, we have a very, very rare case where the title of the law actually is quite accurate — it seeks to punish ‘stolen valor.”

    I still think any real vet should be entitled to kick the ass of the phonies without too much worry of legal ramifications… but you’re right. This is definitely not a top priority. Especially for a Congress that hasn’t passed a budget in… what, three years?

  24. al-Ameda says:

    @Jenos Idanian #13:

    Especially for a Congress that hasn’t passed a budget in… what, three years?

    It kind of begs the question, does Congress even have to pass a budget? All they really need to do is pass an Omnibus Spending Bill for the government to continue operations.

  25. Jenos Idanian #13 says:

    @al-Ameda: Well, they did pass budgets for a couple of centuries. So obviously a lot of Congresses thought it necessary.