Stolen Valor Act and the Supreme Court
Why should lying about having served in combat or been awarded a medal for valor should be legally different from lying about athletic prowess in high school, the number of sexual partners you've had, or the size of one's sex organs?
Earlier this week, the Supreme Court held its oral arguments in the case of United States v. Alvarez, the hapless liar who told numerous whoppers about his biography, including that he had been awarded the Medal of Honor. UCLA lawprof Eugene Volokh examines the questions asked by the justices and gleans the basis on which they might decide the case: “When should knowing lies be restrictable on the ground that they cause emotional distress?”
He provides a useful backgrounder on two areas of Constitutional jurisprudence with which I was almost completely unfamiliar, despite having several semesters worth of law classes (in a political science department, not a law school) under my belt: the “intentional infliction of emotional distress tort” and the “false light tort.” The example I found most fascinating was a lawsuit brought and won by the great Braves pitcher Warren Spahn.
[O]ne leading false light case — cited by the Court in Time, Inc. v. Hill — involved, among other things, a knowing lie about a military decoration. Julian Messner, Inc. published a supposed biography of baseball great Warren Spahn, written by one Milton Shapiro; the biography was aimed at children. The biography was largely fictionalized, but, in keeping with its genre and target audience, didn’t say things that made Spahn look bad (and thus wasn’t libelous). Rather, it made him look more heroic than he was, including by falsely claiming that he had earned a Bronze Star:
Two chapters of the book are devoted to Spahn’s experiences in World War II. The book mistakenly states that Warren Spahn had been decorated with the Bronze Star. In truth, Spahn had not been the recipient of this award, customarily bestowed for outstanding valor in war. Yet the whole tenor of the description of Spahn’s war experiences reflects this basic error. Plaintiff thus clearly established that the heroics attributed to him constituted a gross nonfactual and embarrassing distortion as did the description of the circumstances surrounding his being wounded. Sergeant Spahn was not in charge of “supervision of the repairs” (p. 10) of the Bridge at Remagen; Spahn did not go “from man to man, urging them on” (p. 9); Sergeant Spahn did not go “into the town of Remagen to check with his company commander on his orders for the day” (p. 11) and, consequently, the whole description thereof is imaginary; Spahn had not “raced out into the teeth of the enemy barrage” (p. 13); and in addition to other untruthful statements surrounding his being wounded, Spahn was not “rolled * * * onto a stretcher” (p. 14); but remained ambulatory at all times after treatment in the first-aid station.
The New York courts held that such speech was constitutionally unprotected, and therefore could give rise to a tort recovery, simply because of the emotional distress that the falsehoods caused Spahn. To this day, this is a classic and often-cited example of speech actionable under the false light tort. The Court’s decisions in Cantrell v. Forest City Publishing Co. and Time, Inc. v. Hill would allow such speech to give rise to liability — again, even without a showing of injury to reputation, financial fraud, or even the sort of severe emotional distress involved in the “A falsely tells B that her husband has been badly injured in an accident” intentional infliction of emotional distress scenario.
Here, Spahn was worried about the damage to his reputation caused by people getting the impression that he was falsely claiming unearned military honors! (Amusingly, Spahn’s Wikipedia entry falsely credits him with the Bronze Star.)
Still, I’m not sure how any of the cases Volokh cites sheds any light on the matter of the Stolen Valor Act. Who is it that suffered emotional harm from Alvarez’ lies?
I’ve written a lot about this subject over the years and won’t repeat myself at length here. See, in particular “Criminalizing Lying About Heroism” (March 2008) and “Stolen Valor Laws Unconstitutional” (August 2010). As I observe in the latter, “while it touches some raw nerves for obvious reasons, it’s not immediately clear how lying about having served in combat or been awarded a medal for valor should belegally different from lying about athletic prowess in high school, the number of sexual partners you’ve had, or the size of one’s sex organs.”
via Ryan Caldwell
Agree entirely JJ, the Walter Mitty’s who make these claims are by and large rather pathetic losers. As for the holders of decorations, I don’t see the holder of a silver star or the medal of honor losing much sleep because some used car salesman in Orange County claims to be a war hero. This is another of those areas where Americans feel some relentless imperative to pass feel good laws that seldom do much good and often have unintended consequences.
I’ve seen some descriptions of the oral arguments earlier this week that seemed to suggest that the Justices might be looking for a way to uphold the law. Of course it isn’t always a good idea to try to guess the outcome of a case by the questions asked during oral argument (I can attest to that one personally).
To me, the biggest hurdle for the law is precisely the one that James points out above — what, really, is the harm caused by someone who falsely claims to have received a military honor? If they did so with the intent of receiving some kind of benefit like money or a job, then you’ve got a cause of fraud. Beyond that, though, merely making the false claim doesn’t seem to me to rise to the level of a crime, although I think we can all agree that someone who falsely claims to have received the Medal Of Honor like Alvarez did is kind of a jerk.
I heard that the defenders of the act were claiming that lies hurt morale. Simply not true. An active duty servicemember cares not one whit about someone claiming a Bronze Star or not. “Gee, I could possibly get recognized with a tiny piece of metal if I charge in and save my buddy, but that medal would be meaningless because someone in Alabama might lie about getting one a few years from now. Guess I’ll just move on”. I hate to paint such an obvious model, but…
I believe society has held the military to a higher standard regarding laws that focus on them. For example, there was a huge outcry with Westboro Church protesting at military funerals (or near them, as they kept their distance due to their law). When the courts reviewed the case, the group had every right to protest a military funeral as long as they keep their distance and respect the legal requirements, yet people were outraged that a group would protest against the military.
Same thing here since lying about being a badass in war is an unspeakable crime to many people. As long as they don’t commit fraud, it’s not illegal to be a huge jerk and claim to have huge balls.
I agree James, the “false lights tort” is about PERSON A’s right to privacy being injured by PERSON B’s wrongful representations about PERSON A. Here, PERSON A is wrongfully representing PERSON A.
If the military “devalues” a bronze star by issuing them more liberally, has it injured earlier awardees?
What a waste of time and energy and money.
Shame on the Democrats for raising this bill, and shame on Bush43 for signing it.
After the Giants and the Dodgers deserted New York City, and our family being a National League family in spite of living in the Bronx, I switched my baseball affinities to the then Milwaukee Braves for whom Warren Spahn then pitched. If I remember correctly, he had 13 twenty or more wins seasons in a 20 year or so career. Truly one of baseball greatest pitchers.
On or about 5/17/11, a Rick Santorum said that John McCain who was permanently disabled by torture at the hands of the North Vietnamese, “…doesn’t understand how enhansed interrogation works”. Can Mr Santorum be charged with the crime of ‘stolen valor’? If not, why not? If so, how do I begin the prosecution?