Stolen Valor Laws Unconstitutional

The 9th Circuit yesterday ruled that Stolen Valor laws violate the 1st Amendment and that there is a limited right to lie.

The 9th Circuit yesterday ruled that Stolen Valor laws violate the 1st Amendment and that there is a limited right to lie.    Josh Gernstein:

In a 2-1 ruling, the appeals court panel found that the poetically named Stolen Valor Act is unconstitutional. The majority threw out the prosecution of an elected member of a California water district board, Xavier Alvarez, who claimed at a meeting in 2007 and on previous occasions that he was the recipient of a Congressional Medal of Honor.

Judge Milan Smith, writing for colleague Thomas Nelson, said the law went too far, even though many legal experts view deliberately false speech as unprotected by the Constitution.

We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.

While asserting that they were not endorsing “an unbridled right to lie,” Smith and Nelson said regulations of false speech that have been upheld by the courts were limited to narrow categories in which a direct and significant harm was caused. But, they said, the harm caused by people making false statements about military decorations was not evident. The judges also said it wasn’t clear that prosecution was necessary to discourage fraudsters, who are generally humiliated by public revelation of their lies.

Smith wrote:

When valueless false speech, even proscribable speech, can best be checked with more speech, a law criminalizing the speech is inconsistent with the principles underlying the First Amendment.

In a somewhat incredulous dissenting opinion, Judge Jay Bybee (best known for his work on so-called torture memos at the Office of Legal Counsel) contends his colleagues are deliberately ignoring a series of statements from the Supreme Court declaring false speech to be unworthy of protection in most instances.

Lying about valor in combat is a particularly despicable act, worthy of contempt.   But it shouldn’t be a crime.

The decision could also become a political football, much like the court’s famous/infamous Pledge of Allegiance ruling. But there is this wrinkle facing new efforts to blast the far-out liberal 9th Circuit: all three judges involved in Tuesday’s decision were Republican appointees. Smith and Bybee were named to the bench by President George W. Bush. Nelson was appointed by President George H.W. Bush.

Another note: Both the majority and the dissent refer to Chief Justice John Roberts’s decision earlier this year in U.S. v. Stevens. Roberts slammed the position taken by the Justice Department in the person of Solicitor General Elena Kagan in that dog-fighting videos case as a danger to free speech. The majority wields Roberts’s opinion in what appears to be an effort to buttress the appeals court’s opinion if it is ultimately reviewed by the Supreme Court. Bybee also ups the ante a bit by throwing in a couple of citations to one of new Justice Elena Kagan’s law review articles on speech regulation.

If the Supreme Court takes this case, it could be a fascinating test of where Kagan stands on free speech issues — a subject that went largely unexplored at her confirmation hearings.

I have no opinion on whether SCOTUS will take this case, much less how they’ll rule.   Justices have a tendency to give strong deference to precedent, so if there’s a lot of groundwork on the protected status of lies, they may uphold the law on that basis rather than taking a de novo look at the free speech issue.

Obviously, lies have less protection than truth.  For example, we broke with British tradition on defamation law very early in our history, with the notion that “truth is an absolute defense.”    Similarly, the Clear and Present Danger test cites the example of shouting “Fire!” in a crowded theater.   If there’s reason to believe there’s a fire, this speech is not only protected but encouraged. Otherwise, it’s actionable.  And, of course, there are all manner of laws against fraud and false testimony.

But, 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 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.

For a melancholy but humorous look at the subject, see the David Allan Coe classic “Love is a Never Ending War.”  I’d call your attention in particular to this passage

I never fought in those two wars
but Lord my throat was dry
so I showed them scars and stitches
inflicted by Maria
but I didn’t think that would get me a drink
so I blamed it on Korea

The video is sadly but unsurprisingly unavailable on YouTube.

FILED UNDER: Law and the Courts, Military Affairs, US Politics, ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Brummagem Joe says:

    Most people who claim military credentials or academic credentials have a screw loose athough there are a few cases where pecuniary advantage is sought (which essentially is what Alvarez was doing). Either way it hardly rises to the standard of a crime, but I put it down to an American obsession with criminalizing or at least inventing laws to cover everything in the mistaken belief that all aspects of human behavior can codified and legislated upon. Perhaps that’s why we have half the world’s lawyers.

  2. Michael Reynolds says:

    I hate it when people do this. I earned my medals from the War of 1812 the hard way.

  3. floyd says:

    Micheal;
    Now that you’ve proven yourself “worthy of contempt”, just keep in mind that they were not endorsing “an unbridled right to lie”! [lol]

  4. PD Shaw says:

    As mentioned in the Blago thread, I don’t think lying should be a crime absent some additional circumstances. I don’t know that the Constitution necessarily mandates my point of view. If the guy received some government benefit (a job or entitlement) due to his lie, then I think it’s simply criminal fraud, regardless of the subject.

  5. James Joyner says:

    As mentioned in the Blago thread, I don’t think lying should be a crime absent some additional circumstances.

    I tend to agree with you, even including lying to police to cover your own ass. But what about perjury in court, for example? Surely, that should be punishable?

  6. Rock says:

    It’s fraud. Presenting yourself as something you aren’t is fraudulent on the face of it. It’s akin to practicing medicine without a license or presenting false credentials. If Stolen Valor wasn’t a problem, why then do politicians get burned every time they get caught lying about their military service records and awards and decorations? Massachusetts’s attorney general Richard Blumenthal comes to mind. Although he didn’t claim unearned medals, he lied about serving in Vietnam. And he is a freaking lawyer. I guess he was laying claim to the hairiest pair of gonads in the room. But wearing or claiming to have unearned medals in public is a crime. Military people can be prosecuted for doing so. I’m almost certain that if you are a veteran, you are prohibited by law from claiming awards and decorations, and service you never earned. Maybe a good lawyer can look up that information for us. If I recall correctly, not too long ago a Navy Admiral committed suicide after he got caught wearing one medal he was not authorized. However, if one is a lawyer or judge and can not tell the difference between a lie and fraud, maybe it’s time to take down the shingle or start chasing ambulances.

  7. James Joyner says:

    It’s fraud.

    Lying isn’t necessarily fraud, at least in a criminal sense.

    It’s akin to practicing medicine without a license or presenting false credentials.

    No, it isn’t. Waving my (earned) Bronze Star around doesn’t get me into an operating room or allow me to arrest anybody.

    If Stolen Valor wasn’t a problem, why then do politicians get burned every time they get caught lying about their military service records and awards and decorations?

    That pretty much makes my point: Social scorn is the remedy.

    If I recall correctly, not too long ago a Navy Admiral committed suicide after he got caught wearing one medal he was not authorized.

    14 years ago, actually, but yes: Mike Boorda, the CNO, killed himself. I don’t think the medals themselves were the only issue, although we’ll never know. A very sad case, in that it was almost certainly sloppiness on his part — at worst — rather than an attempt to gain prestige from wearing “V” devices on low level medals.

  8. JKB says:

    If I remember my fraud correctly, the scenario in the song is fraud since the lie is used to receive something of value that the other person wouldn’t have provided without the lie. Lying politicians hide behind the difficulty of proving the lie got them enough votes to impact the outcome of the election.

    It occurs to me, that one way to fight those who steal valor is to provide funds to say a veterans’ organization so that they can bestow a gift upon the liar, in excess of the felony fraud amounts, solely to reward their claimed valor before revealing the lie. Then sue the fraudster for fraud. Thus revealing their lie and getting them identified officially as a fraudster. Of course, the law just overturned was an attempt to make that easier on the prosecutors.

  9. It’s only fraud, legally, if someone is damaged as a result of the lie.

  10. Rock says:

    Oops! I made a mistake in my first post. Richard Blumenthal is Attorney General of Connecticut and not Massachusetts. Sorry about that. Perhaps I was thinking of Senator John Kerry of Massachusetts.

  11. PD Shaw says:

    ” But what about perjury in court, for example? Surely, that should be punishable?”

    Yes, but there are also other ways to deal with that. An interested party caught lying in court is unlikely to be believed and will gain no advantage from the lie. A judge also has contempt powers. Attorneys can be disciplined. I wouldn’t say never, but I don’t think it is useful most of the time.

  12. Brummagem Joe says:

    “Sorry about that. Perhaps I was thinking of Senator John Kerry of Massachusetts.”

    I can see you know as much about Richard Blumenthal as you do about John Kerry.

  13. Brummagem Joe says:

    PD Shaw says:
    Wednesday, August 18, 2010 at 13:49

    “An interested party caught lying in court is unlikely to be believed and will gain no advantage from the lie.”

    I can see you’ve been involved in a lot of legal proceedings. And perjury is minor problem. Yeah right.

  14. Rock says:

    “I can see you know as much about Richard Blumenthal as you do about John Kerry.”

    I admit that I didn’t know much about Richard Blumenthal until his “misspoken” claim about having served in Vietnam. I know what I know about him from the news media and bloggers, both trustworthy sources. Maybe that’s why I was confused about what state he is from.

    Is the John Kerry you mention the same John Kerry who accused me of war crimes and compared me to Genghis Khan while I was still in Vietnam having just fought during Operations Lam Son 719 and Dewey Canyon II – somewhere north of Khe Sanh? Is he the same John Kerry who threw away his medals in 1971 thus disowning any claim to them in later years? Is he the same John Kerry who reported for duty in 2004 and tried to ride his misplaced valor into the White House? Is he the same John Kerry who recently purchased a 7 million-dollar swift boat yacht and temporarily forgot to pay taxes on the thing? If not, then I’m confused about John Kerry too.

    “… and the soldier is slighted.”

  15. Ole Sarge says:

    “The 9th Circuit yesterday ruled that Stolen Valor laws violate the 1st Amendment and that there is a limited right to lie. ”

    Is this not the SAME Circuit Court that routinely has it’s rulings overturned by the Supreme Court – when they choose to take a case that is on appeal?

    Any wonder WHY exactly those that dishonor this country and its veterans chose that particular court. Or chose to fight a Federal Law within its jurisdiction?

    The Circuit Courts on the East Coast, while sometimes very “liberal” are also at times “very literal” and perhaps this would have gone the other way.

    “Stolen Honor” is more than the embellishment of military decorations. There have been and there still are frauds receiving entitlements (VA services from Federal and State Agencies) and rewards (local community recognitions and private support) for out and out lies about whether of not they ever served in uniform, let alone, where ever where they claim to have been, when they claim to have been there.

    There are people hurt by these liars