The case is United States v. Strandlof, which I discussed here, and in which I filed this amicus brief.
I found the opinion to be quite thoughtful and interesting, but I ultimately wasn’t persuaded (despite the recent United States v. Stevens precedent, on which the court heavily relies). The court’s theory seems to suggest that, while fraud is constitutionally unprotected, attempted fraud is protected, at least so long as no-one who relied on the attempted fraud can be identified. And it also seems inconsistent with the Court’s acceptance of false-light invasion of privacy claims — see my brief for more details on those cases — which rest neither on a specific well-rooted false light invasion of privacy exception nor on any plausible judgment that the false light tort passes strict scrutiny. (Note that the Court has treated the imposition of civil liability for speech much the same as the imposition of criminal liability, so I don’t think the false light cases can be distinguished simply on the grounds that they are tort cases and not criminal cases.) Because of the false light cases, and various others, it seems to me (and I so argue in my brief) that the relevant First Amendment exception is a general one for knowingly (or recklessly) false statements of fact, albeit with some narrow exceptions-to-the-exception, and knowingly false factual claims of having received a medal would fall into that.
But in any event, the court took a different view, and it will be interesting to see what the Tenth Circuit does, since I expect that the government will appeal.
UPDATE: Note that my analysis assumes that the Stolen Valor Act would be interpreted as limited to situations where the display of a medal would be understood as a statement of fact, rather than as fiction, hyperbole, humor, or parody. But I think that’s a sensible interpretation, and one that a court could easily apply as a clarifying construction of the statutory element of “falsely represent[ing]” oneself as having gotten a medal.
Houston Lawyer says:
If this act is legal, it should also be legal to prosecute any public official for making a false statement while campaigning or promoting legislation. The idiots who falsify their military valor do so much less harm. Houston Lawyer(Quote)
Darwin says:
Suppose you look around as if you’ve misplaced something and just ask: “Anyone find a Congressional Medal of Honor around the couch?” Does that violate the law? Darwin(Quote)
ruuffles says:
A technical question: why does the prof need an attorney to submit the brief? Is it because the court is in CO?
Does this mean the government can criminalize lying about your age or weight, two easily verifiable facts? Or if you eat three vegetables and two fruits every day? ruuffles(Quote)
epeeist says:
I have to agree with the court and disagree with Prof. Volokh, inasmuch as the law extends even to verbal statements.
The other examples given of false statements of fact seem to be ones where the false statement causes harm/direct harm (as it would in e.g. a fraud situation).
The examples of permissible speech such as Holocaust denial, while they might (arguably) cause indirect harm, are permissible because they don’t cause direct harm.
To use an analogy, lying about one’s grades to get a job is possibly criminal or tortious (akin to misrepresenting one’s medals to get a job or other benefit), and forging a transcript (akin to wearing false medals?) is presumably criminal. But telling an obnoxious family member that you did better than you actually did in college, is (except to the extent one objects to lying generally, which I do but not to the extent of criminalizing it) not a problem. Similarly, pretending to be a lawyer or MD or engineer etc. normally wrong if in the context where harm could be caused (e.g. in a court or hospital or acting for clients); verbally stating you’re such in a friendly argument in a bar (with no reliance or detrimental reliance) to try to “win” your point, what’s the harm?
As much as I don’t like it, so long as there is no direct harm (e.g. lying about medals to get a discount or in running for public office to get votes or the like), I can’t see how lying about having received a medal should or can be criminalized anymore than lying about one’s weight (which could be wrong, if you e.g. lied about weight to become a police officer or firefighter...). Not to mention, I don’t really see a humor/satire/parody exception as much protection if people can be put on trial and forced to prove such (with a reverse onus?). epeeist(Quote)
CheckEnclosed says:
Off topic a bit, I’ve always been a dubious about the way in which various computer hacking schemes are prosecuted as fraud. If you steal someone’s key, or have a copy made, or pick a lock, or learn the combination of their safe and open it, is that fraud? But if the machine you manipulate is a computer it is?
How about hotel locks with magnetic keys — is it fraud to steal one/ create one/otherwise fool the lock? CheckEnclosed(Quote)
Emsl says:
Normally I find Prof. Volokh quite convincing, but here I think he has gone astray. Like the court, I am very troubled by the concept that the government gets to decide truth or falsity and then gets to prosecute merely for making (not under oath, etc.) a statement Congress deems harmful. Society may ostracize such a person, others may denounce them, but I don’t want the government using its prosecutorial power. This may, in part, come from my views that (a) prosecutors always try to broaden the scope of the statutes they have at hand, and (b) there is always some tendency to focus on a person and then try to find a criminal statute that can be used.
As a separate matter, the government attorney who put forward the morale argument should be ashamed. Doesn’t anyone take a step back from the particular dispute to gain perspective? Emsl(Quote)
Ken Arromdee says:
The problem is that lying about getting a medal is likely to cause harm, but this harm is impossible to prove in any specific case. If you lie about a medal to claim that soldiers with medals support your political point, there are probably listeners who believe you and give more credence to your point than they otherwise would. But there’s no way to prove that any specific listener is doing so (especially since it’s difficult to measure “degree of credence”). Ken Arromdee(Quote)
Jack Marshall says:
In 2008, there was a case in which a party in a lawsuit wore a purple heart on the stand to gain favor with jury. It was never mentioned, and the judge later decided that it didn’t warrant a mistrial. Protected speech? I think not. Jack Marshall(Quote)
ruuffles says:
http://www.ca9.uscourts.gov/datastore/opinions/2010/07/14/05–30303.pdf
Kozinski joins liberals in dissenting from denial of rehearing of en banc hearing.
Presumably he swore to tell the truth before testifying. ruuffles(Quote)
epeeist says:
Re Jack Marshall, THAT is the sort of specific direct harm that I think could be criminalized; but it also is wearing a false medal, NOT merely speaking about it.
As for the above, how does your argument distinguish lying about a medal? If someone lies about many other things (Holocaust, presence/absence/extent of global warming, etc.), there may be listeners who believe and give more credence than they otherwise would. But it’s not criminal. For that matter, people can lie about e.g. Washington or Lincoln or any other deceased President with immunity, and there may be listeners who believe and give more credence than they otherwise would (e.g. “George Washington favoured an Imperialist U.S.” might be given more credence by someone unaware of his address upon leaving office!).
Again, if the circumstances are more akin to fraud I agree it can/should be criminalized — lying about medals in a discussion in a bar (should be permissible however morally objectionable) versus lying about (including wearing unearned) medals in court or while running for office or to get a job (principled argument for imposing liability in those cases because the lie is for the purpose of obtaining a direct material advantage through deceit). epeeist(Quote)
Jack Marshall says:
The wearing of the medal in court was speech, arguably, but not material to the case, and not “testimony.” Wearing a medal falsely is only harmful because of what it communicates; if it’s the communication that makes the act wrong, then the same communication without the act should be equally wrong. This isn’t criminalizing speech as content; it is criminalizing a particular kind of lie that has specific consequences—devaluing the acts of valor of genuine recipients. Jack Marshall(Quote)
Ken Arromdee says:
It’s interesting you mention running for office. What if you’re not running for office, but you’re working for a political cause you believe in and lying to support the cause? How would you distinguish those? Yeah, if you achieve the office you’ll draw a salary, and you won’t draw a salary from the political cause, but the main benefit of political office to yourself is not the salary, it’s political influence. Ken Arromdee(Quote)
Ken Arromdee says:
“George Washington favored an imperialist US” is not talking about your personal situation, and therefore is not something that you’re in a unique position to easily verify. Because of this factor it’s less harmful (since if you could have found out it’s false, so could your listeners), and it’s more plausible the error could be a mistake rather than a lie (it’s possible you’d make a mistake about something from a book; making a mistake about your personal experience is harder.) Ken Arromdee(Quote)
Malvolio says:
Hmmm, can the government criminalize false statements like “I am a lawyer” or “I am a doctor” or does it have to wait until some specific person reasonable relies on the statement and suffers some harm?
Can the government criminalize counterfeiting — which after all is merely the printing of a document which falsely but plausibly claims to be government-issued?
All these examples (and Stolen Valor) are false statements about the speaker’s relationship with the government, which (to me) strengthens the government claim to both the responsibility and authority to regulate them. Malvolio(Quote)
RHD says:
Since the issue is what does the Constitution require, it is best to start with its words: “Congress shall make no law ... abridging the freedom of speech ....” Broad and sweeping provisions invite broad and sweeping applications, and thus it is best to keep judicially created exceptions (I think all will agree some are inevitable and essential) to a minimum. In that context, the ‘fraud’ exception should be restricted to the contours of the well-settled definition of fraud: false statements of fact made for the purpose and with the intention of inducing reliance, upon which another reasonably relies to his pecuniary detriment. In other contexts, the SCOTUS has rejected non-pecuniary harms as sufficient to establish fraud, most recently in this Term’s Skilling opinion (rejecting the ‘deprivation of honest services’ addition to the mail fraud statute as too vague).
Whether a claim about, or the display of, a military medal amounts to a false statement, there are few situations in which that falsity is reasonably relied upon by another to her pecuniary harm.
The District Court’a analogy to the flag burning cases is persuasive because both situations involve only harm in the form of hurt feelings. If that were ever accepted as sufficient to criminalize speech deemed (by the Gov’t) too unimportant to merit protection, the First Amendment would be well on its way to becoming a dead letter. The Amendment is almost always invoked to protect speech deemed reprehensible by some (often most) civilized people — Nazi marches, flag burning, etc. But without that, it would be a short step to Canadian-style limitations on free speech, which in practice amounts to the kind of PC-speech codes that occasionally pop up on US campuses. At least until FIRE gets into the act, that is.
Malvolio’s counterfeiting example isn’t helpful. Counterfeiting (like forgery) had an intent element to the crime. For example, an artist who paints a $100 bill in a photo-realistic way and hangs it on a gallery wall, has not commmitted a counterfeiting crime. But it would be a crime if he painted such a bill with the intent of passing it off as currency. Nothing about that situation has much relevance here.
I don’t see any good argument for denying the false medal wearer, and even less, the false medal claimer, from the Amendment’s protection. RHD(Quote)
Mark Horning says:
Bob counterfits US Federal Reserve notes, but does not intend to pass them off as curency. He just wants to, oh I don’t know, sleep on a big pile of money. Regardless, it’s pretty clear that the law presumes that fraud is or will be occuring.
How is this different from the “Stolen Valor” act in presumtively assuming fraud on the part of the actor? Mark Horning(Quote)
Tim says:
+1
I don’t even know what our Soldiers are fighting for if not for the free speech of American citizens at home. Tim(Quote)
JMS says:
@Mark: I think the difference is that a jury is unlikely to believe Bob does not intend to pass off the notes. With the SVA, it’s far less clear that someone is seeking a pecuniary advantage (they may be seeking sympathy, etc.) and therefore there is a stronger case for leaving them outside the exception.
That said, the decision seems a little flawed for 2 reasons:
1. It comes a little too close to saying that attempted fraud is protected under the 1st amendment
2. It is unnecessary to invalidate the provision — the judge could have simply interpreted it so as to require intent to get pecuniary advantage or cause another pecuniary harm. A person who wears fake decorations as a beggar deserves to be punished more than someone who does it in order to get a pat on the back — the latter is a scumbag, but probably not a criminal. JMS(Quote)
Roy says:
One solution is that the Department of Defense, or for the USCG the Department of Homeland Security, could issue a Diploma to all honorably duscharged vets listing the postings and awards from their military service.
This is what the Roman Republic and Empire did:
http://en.wikipedia.org/wiki/Roman_military_diploma
This is one of the oldest, and amazingly enough most effective, ways of of preventing academic fraud. Roy(Quote)
armyboy says:
DOD has been doing this for decades. It’s called a DD-214. It’s slightly different for Guard personnel.
armyboy(Quote)
Roscoe says:
A couple of points.
First, the argument that a knowingly false statement is protected by the First Amendment in the absence of reasonable reliance and concrete harm is just wrong. There are numerous instances where false statements are criminalized in the absence of either reliance or damages. For example, 18 USC 1001 makes it a crime to make a material false statement to a government agent. There is no requirement that the false statement hindered the government investigation, and it is a crime even where the agent never believed the false statement for a second. The “perjury trap” argument argument has also been rejected.
Second, I think the government has compelling reasons to prevent people from wearing unearned decorations. This is not just a matter of “hurt feelings,” the government hands out medals for a reason. Rewarding and recognizing heroic acts of some soldiers inspires other soldiers to perform similar feats. As Napoleon said (and I don’t think it has changed much) “a soldier will fight long and hard for a bit of colored ribbon.” The government’s purpose in awarding decorations is hindered if any damn fool can strap one on. Roscoe(Quote)
Hot Air » Federal court says Stolen Valor Act violates First Amendment says:
CatCube says:
This is one of those times where I honestly do not understand my country. Claiming to have an unearned Medal of Honor or Silver Star is self-evidently fraud. The heroism and status that they proclaim to others are themselves valuable things being stolen, and I’m truly baffled by those who don’t see that. When you have a device that the government uses to certify a hero, it cheapens it when anyone can wear or claim it.
At any rate, I’d like to thank our host for putting forth the effort to fight the good fight on this one. CatCube(Quote)
CDR D says:
»>One solution is that the Department of Defense, or for the USCG the Department of Homeland Security, could issue a Diploma to all honorably duscharged vets listing the postings and awards from their military service.«<
As mentioned above, the DD-214 has been issued for many decades. (The USCG also uses the DD-214... Certificate of Release from Active Duty.)
Block 13 of the form dated 1 July 79 is for decorations, medals, badges, citations and campaign ribbons awarded or authorized.
Anyone can verify the valor claims of anyone else by submitting a FOIA request to the NPRC in St. Louis, MO. That kind of info is releasable to the public. CDR D(Quote)
Laura Victoria says:
The academic analysis here by Professor Volokh may be correct, the problem is the slippery slope. The government rulers won’t be balancing angels on the heads of a pin. They would jump on this as grounds to criminalize any lie. The 1801 statute has been tremendously abused already — look at Martha Stewart.
Weigh all of the slippery slope against this extremely narrow issue. Do I feel safer in America because a false valor claimant is jailed? Please. They can be shamed and shunned and that should give justice to the victims. We don’t need a federal criminal prosecution. Every court ruling that errs on the side of speech should be applauded. Laura Victoria(Quote)
Bama 1L says:
The false statement still has to be made to a government agent in a context where it is material. This law makes it a crime to lie about military decorations to anyone at all regardless of context.
The government’s purpose is also hindered by war protesters calling soldiers “babykillers,” chanting “No Blood for Oil,” etc. I would be very cautious about this sort of “military necessity” argument. Bama 1L(Quote)
FTL_Bob84 says:
Your arguments warrant serious consideration, but the judge got it right for several reasons (though his reliance on Stevens is quite confusing).
As facially stated, the statute was not limited to statements constituting common law fraud. It is certainly true that the scope of civil liability for such statements is wider, such as the false light cases you cite as examples. But criminal liability is NOT indistinguishable from criminal liability for First Amendment purposes, because the “chilling effect” of criminal sanctions, including imprisonment, is presumably much greater to the average citizen than a civil judgment of perhaps greater financial detriment. At any rate, the involvement of a government actor invokes special historical concerns to the First Amendment that are not involved in a garden variety defamation claim. These concerns warrant greater breathing room for the marginal situations which could possibly be prosecuted under this sloppy drafting, like the numerous hypotheticals cited by other commenters.
Technically-speaking, the restriction is content-based, and strict scrutiny was correct. And I don’t agree with your argument that it falls into one of the exceptions noted in RAV (even if I were to agree that these statements otherwise fell into a zone of no protection, as false statements of fact). The prosecution’s asserted “compelling interest” reveals that government favoritism for certain ideals could certainly have been ‘afoot’ in the motivation for this legislation. I think you are correct that most, if not all of the people who violate the statute will not be engaging in political speech of any sort. But the intention of the legislature is also relevant, and it is pretty difficult to come up with a compelling justification for the statute that would not covered by existing law. Or that could not be covered by a second run through Congress. The role of the courts in forcing more narrowly-tailored drafting cannot be overstated. FTL_Bob84(Quote)
Andrew says:
There should always be a very strong presumption of harm in cases like this. Rebuttable, perhaps, but only with a very strong showing that NO ONE ON EARTH will ever be harmed by the lie. Andrew(Quote)
Former Army MP says:
I disagree with all of you, Volokh for sure.
Napoleon said it best, “A soldier will fight long and hard for a bit of colored ribbon”
That ribbon is one of the main factors that motivate our military to defend our nation. Both during service, and long afterwards as their pride raises the next generation of military.
Every one of these scum harms that pride, and harms our national defense.
I know it is cute and fun on college and amoung the professional class to mock our military and its men and their morals. In this case, though, you are simply wrong.
This fraud harms America, and its national defense. Anyone who says otherwise is simply ill informed or is a anti-military bigot like all federal judges (see, eg, all of federal law, starting from civvies with troops are not subject to court martial, to .mil may not sue, to federal common law for everyone in the world except vets). Former Army MP(Quote)
Bama 1L says:
A presumption like that in criminal law would probably violate Due Process. Now if it were a civil action like defamation, you could do that; the law presumes that libel and some categories of slander cause reputational damage.
The more I think about this case, the less I understand Professor Volokh’s decision to write not just a blog post but an amicus brief. He is usually one of the first people to sound the alarm about statutes that criminalize speech, even speech that intentionally harms a particular person. I do not think it is his practice to submit a brief supporting every speech restriction he thinks is constitutional. Maybe he would like to blog about why this is different and what moved him to write. Bama 1L(Quote)
Fury says:
Unless of course, it’s “classified” because of the super secret duty of the military person. I had one loser make that claim when his bluff was called about being a Navy SEAL. Eventually he was outed — he had washed out of Initial Entry Training. Fury(Quote)
Kevin R.C. O'Brien says:
These kinds of fellows very rarely stop at just making the claims. They are generally persistent in their grandiosity. Such fraudsters frequently use their false claims to scam the public of veterans benefits (the VA doesn’t do a good job policing this, particularly with PTSD fraud; the VA is incentivized to produce ever more claimants, even if it must manufacture them). This is itself prosecuted occasionally (as it should be), but more often the small-time four-flusher uses his “heroism” to scam small money off small people (usually, besotten girlfriends). The judge doesn’t care about this kind of thing: not his class of people.
The public generally doesn’t care about this either (consider: Blumenthal in CT, Delahunt in MA, Harkin in IA, all politicians who retained their overall popularity after their service claims were exposed as fraudulent), but veterans do. The academy goes even further than the public, continuing to lionize exposed phonies like Ward Churchill (Vietnam “hero” who turned out to be a legit VN vet, but as a “projector operator.”) Phony vets with heartrending PTSD tales are Stuff White People Like.
I got the impression that he did not invalidate all parts of the law, just the parts that hinge on non-financial fraud. Reading the opinion, I got the further impression that he was willing to overturn that part also but the facts didn’t encourage him to reach that far.
IANAL, but I thought it was interesting that the cases the judge found relevant involved such amusements of his class as animal-cruelty porn and flag-burning, both probably more popular at Harvard and Yale than veterans are — real ones, anyway.
Of course, the judge in question is not an Ivy grad, and was appointed by George W. Bush, so in his case it’s nouveau-gauche social climbing, not innate class identity. Kevin R.C. O’Brien(Quote)
CatCube says:
Dude, Volokh wrote a brief to the court in favor of the SVA, on his own time and his own dime. A lot of people here are arguing against it, but the OP isn’t one of them. We owe him a thank you for that. CatCube(Quote)
Elliot says:
“If you lie about a medal to claim that soldiers with medals support your political point, there are probably listeners who believe you and give more credence to your point than they otherwise would. But there’s no way to prove that any specific listener is doing so (especially since it’s difficult to measure “degree of credence”).”
Do you realize how many things would be illegal under that line of reasoning?
If you lie about XYZ to claim that XYZers support your political point... Elliot(Quote)
Laura Victoria says:
The free speec risks this case presents are not worth twisting oneself in knots to uphold the law — not when a far easier and much less intrusive remedy is available to deal with the problem: a website that contains the names of all medal of valor recipients. People would have less incentive to lie, knowing they’d be caught, and if they did they could be called out publicly as frauds. What’s wrong with that? Why do we need a criminal law? We need a heck of a lot fewer criminal laws, not more. Laura Victoria(Quote)
navymic says:
Smart people, help me out:
If I have a fake government passport, but do not use it for travel, is it illegal? Just possessing it?
Medals are awarded by the government, accompanied by an official government document. The ‘little piece of color’ is, in part, a piece of that government document.
Second: Tomorrow, when I order my MOH license plate from my state, and they ask for for documentation proving my award, can I tell them that they are limiting my freedom of speech? navymic(Quote)
Roscoe says:
You are missing the point I was trying to make in bringing up 1001. Here is what the judge said:
I recognize that 1001 and the Stolen Valor Act criminalize different things. I was trying (succeeding, actually) to point out that the judge is wrong, as 1001, which has been repeatedly held to be constitutional, does not require that anyone be “actually mislead, defrauded, or deceived.” Roscoe(Quote)
Bama 1L says:
Right, but there are well-established instances in which the context makes a false statement criminal, even if no one believes it or is injured. Perjury is another easy example of that. The context is what makes the false statement criminal.
The Stolen Valor Act only looks at the content of the statement and is blind to context. It is a purely content-based restriction. Bama 1L(Quote)
Roscoe says:
Bama 1L — Is there any authority that the “context” of the false statement matters? The Court here didn’t rely on this principle.
Anyway if you are hung up on the false statement having to be with respect to a specific context, criminal mail fraud also doesn’t require either reliance, or that the fraudulent scheme succeed, only that the defendant knowingly participated in a scheme to defraud. And, of course, wire fraud doesn’t require any “context” either (other than that the mail be used, which is only in the statute to provide a jurisdiction hook).
The fact is that regardless whether anyone thinks this is the right result, the judge’s reasoning is at odds with a significant amount of authority. Basically, its a dumb opinion. Roscoe(Quote)
whit says:
lots of “fraud” (which you seem to be using as another definition of “lie” damagesthat miitary etc., like people lying about the miitary. but we don’t CRIMINALIZE that.
we fight BAD speech with GOOD speech. iow, we show that person X wearing the medals is a liar and a piece of human refuse. we shame him. we humiliate him
that keeps the constitution intact. whit(Quote)
whit says:
right. if i can make a parallel to our state law. it is not illegal to impersonate an officer if you merely dress like one, walk around like one, or even claim (like to brag at a bar) that you are one.
it is only illegal if you make some sort of official act. in other words, you stop somebody, demand their id, that type of stuff. whit(Quote)
Michael Ejercito says:
There is a compelling government interest to punish fraud, including fraud by wearing unauthorized medals.
Could the Stolen Valor Act have been more narrowly tailored, or a less restrictive means be used to achieve that interest?
Alternately, would preserving the integrity of medals by only allowing people who had earned those medals to wear them constitute a compelling government interest? Michael Ejercito(Quote)
whit says:
you are using the term “fraud” which kind of begs the question
in general, FRAUD is illegal
in general, lying is not
fraud is, in essence, a crimina form of lying (often lying for monetary gain,etc.)
it seems to me that by calling it fraud, you are placing it within that criminal realm, and asking “why isn’t THIS kind of fraud illegal?”
we can (to some extent) preserve the integrity of the medals by shaming, shunning, ridiculoing, and exposing those who do, or who merely claim to have such medas, when in fact — they do not.
but if all forms of such lies about oneself were criminal, well... we;d have some REALLY busy cops. whit(Quote)
Laura Victoria says:
Whit is correct. I mentioned that a website on all the valid medal holders would solve the problem and allow non-recipients to be called out and proved liars in the marketplace of ideas. Turns out, the judge relies on this point and in fn. 9, cites both a website that outs false medal claimants and also a site that has a registry of actual medal holders. In this information age liars can be found out real quick. No need for more criminal laws, when we need fewer of them on the books. Laura Victoria(Quote)
Stephen Lathrop says:
Focusing on fraud makes this confusing when it shouldn’t be. Military medals are in a separate category. They are honors, carrying values that accrue both to the recipients and to the nation. Those values are importantly related to both the source and scarcity of the honors. Counterfeiting them undermines both. It seems perfectly acceptable, and not at all a threat to rights of any kind, to insist that attempts to counterfeit honors, or indeed to hold oneself out falsely as a recipient of honors, be punishable, and punishable as a separate recognizable offense, unlike any other. Stephen Lathrop(Quote)
whit says:
we generally don’t punish attempts to “hold oneself out falsely” as a ANYTHING, why should recipient of honors get special treatment?
if the lie is done in the furtherance of some fraudulent scheme, then we already have laws on the books for that.
you are talking about criminalizing mere lying, and that’s simply wrongheaded, for reasons already explained, and also (arguably and according to this court) unconstitutional
again, we counter bad speech with good speech, and we are free to scorn , shun, humiliate etc. those who engage in false speech. THAT is the remedy whit(Quote)
CatCube says:
I can’t speak for Michael, but that’s exactly what I’m saying. People who pretend to have our nation’s highest awards are ethically criminals, but for reasons that completely pass my understanding, there’s apparently debate about whether or not they should be legal criminals.
I don’t buy the “well, just saying that you’ve got it doesn’t hurt anyone that we can tell.” Look, let’s make an analogy to counterfeiting: counterfeiting and passing money, by itself and on a very low level, doesn’t hurt any one person. If I pass a good fake $20 to someone else, they’ll probably be able to buy stuff with it, and that person will probably be able to buy something, and so on. There’s no reason to spend time looking for counterfeiting, except that the system is based upon the fact that you trust that the cash you have in your pocket can be used to buy things. When’s the last time that most of you have actually inspected the bills you get to see if they have the security threads, etc.?* I’ll bet that most of you haven’t in a long time. When you have counterfeiting get above a small level, and there’s no visible effort by the government to stop it, people stop having that trust and the system will begin to break down.
Counterfeiters prey on that trust to accrue value to themselves. Similarly, someone who pretends to have the MOH or SS is preying on the trust of others to accrue value to themselves, though honor and reputation in place of money. Now, I realize that there are all kinds of lies that people tell to accrue reputation, but this one is different regarding freedom of speech for two separate but related reasons:
1) The honor that the MOH bestows is like the value of money. It exists only because the government proclaims it to exist, and the general public accepts that proclamation as part of its culture.
2) Like the value of any particular Federal Reserve Note, the truth or falsity of a claim to have the MOH is solely determined by the government. This differentiates it from, say, Holocaust denial or 9/11 truthers, since while both of those are wildly incorrect beliefs, they can be honestly held by someone who misinterprets historical or physical evidence. On the other hand, punishing someone for falsely claiming the MOH isn’t saying “don’t be wrong,” it’s saying “don’t lie.”
Neither of these two things, by themselves, would justify making lying about having medals illegal. However, taken together they virtually eliminate the risk of the government abusing this particular authority to silence any critics, while they help to reduce the incentive for fraudsters to denigrate the value of the medal and the honor given to it’s true holders.
[*I realize that someone who works in a cash-based business, who’ll be taking money directly to the bank will usually be pretty diligent about this, especially with larger denominations. But this is because the bank will often check, and they’ll be out that bill. If they didn’t have to worry about it being checked at the next place down the line, there’d be a lot less worried about it.] CatCube(Quote)
CatCube says:
Wow. Okay, this is obviously where our paths diverge. That’s so far from anything I’d think of I’m not even sure where to start. CatCube(Quote)
Ken Arromdee says:
That reasoning wasn’t meant to be a sufficient reason for something to be illegal, it was a rebuttal to the claim “lying about a medal should not be criminalized because there is no direct harm”. The answer is “there is direct harm, it’s just inherently hard to prove.” Ken Arromdee(Quote)
Andrew says:
Ha. Everyone know that “due process” is no more and no less than what five SCOTUS judges want it to be. Forget about what the people who adopted the Due Process Clause meant.
So, citing “due process” as an argument against presuming harm in cases like this does not persuade me (one whit). Andrew(Quote)
ChrisTS says:
Stephen Lathrop:
Would the same reasoning support criminalizing false claims of other ‘honors,’ such as having a degree in X? Absent any [further] effort to use the claim to defraud others? ChrisTS(Quote)
CatCube says:
Again, I can’t speak for Steven, but no it would not. I think that there’s a major divide in thinking here, and it’s only tangential to the First Amendment. Out of curiosity, I’d like to poll the room (I hope I’m not intruding on the generosity of our host and deviating from the thread) So anybody who’s interested:
Do you think that receiving high military honors are substantially and morally different from other reputation-enhancing things that people have an incentive to lie about (e.g., a degree from an Ivy League school, a high-paying job as a stockbroker, being a doctor, general/admiral, member of Congress, etc.)? CatCube(Quote)
ChrisTS says:
I think the honors — or what earns them — differ, of course.
I’m less sure that the morality of lying about them differs substantially.
I am not comfortable with legally punishing the one kind of lying. ChrisTS(Quote)
Bama 1L says:
Of course they are different. I have a good job and some nice degrees on my wall. I was lucky and worked hard when someone was watching. My late grandfather had a Silver Star, a couple Bronze Stars, and a Purple Heart. He was brave when it mattered. He was a hero. There is no comparing our achievements, except to say he always wanted me to have the life I have and not the life he had.
On the other hand, lies are lies. I (and my late grandfather) come from a moral tradition (Catholicism) that has had a great deal of difficulty justifying a lie that is socially beneficial (“white lie”) or even saves an innocent life. So I do not believe that, in itself, lying about having received a medal differs from lying about having received a medical degree, or for that matter lying about remembering your wife’s birthday. We might look at why you told the lie or what the lie’s effects were, but the content of the lie is really not that important except inasmuch as it might lead to further consequences. There are circumstances in which it might be more culpable to lie about remembering your wife’s birthday than about whether you received the Bronze Star.
But we are not talking about which honors are more significant nor about whether some lies are worse than others. We are talking about imposing criminal liability: using the force commanded uniquely by the state to seize someone, subject him to criminal process, and thrust him into prison. We should be reluctant to do this. The law, in general, does not criminalize certain categories of falsehood based solely on their content. This statute purports to say that any false statement about medals is a crime punishable by imprisonment. That is a bad law and I thought it was the kind of law against which the First Amendment protected us. Bama 1L(Quote)
sookie says:
Isn’t this called a DD214?
I think it’s issued to all, not only honorably discharged. And just because someone is dishonorably discharged, doesn’t mean they don’t have a purple heart or other medals they’ve earned. sookie(Quote)
sookie says:
Sure I do. Do I think it merits infringement on the 1st amendment? No.
The road to hell as they say.
There are other, remedies that have been discussed which don’t trample on the constitution. sookie(Quote)
billo says:
What we need is for it to be a publicly accessible document. This came up once back in the usenet news days where someone was claiming to have been in Vietnam during the evacuation. A number of us tried to find out by looking for public records — including copies of ships logs, etc. The one thing that we could *not* find was a public copy of his DD-214. billo(Quote)
ReaderY says:
Does one have a constitutional right to present a false college degree or work experience on a resume, so long as one wasn’t actually hired (i.e. so long as it’s merely attempted fraud rather than actual fraud)? ReaderY(Quote)
Martinned says:
I’m afraid you’re confusing the question of whether this statute is desirable with whether it is constitutional. AFAIK, outright falsehoods are not protected speech, and have never been held to be protected speech, except in the context of NYT v. Sullivan. That’s what is so strange about this ruling: the court seems to analyse the case as if the government was asking it to create a new exception to the first amendment, like in Stevens. As far as I can see, that precedent is irrelevant here. Martinned(Quote)
Aultimer says:
EV’s argument supports jail time for a false claim that “I was awarded a Purple Heart for injuries sustained in combat in Viet Nam” for someone who received no such medal during their honorable service in Viet Nam, and tickertape for a claim that “I was seriously injured in combat in Viet Nam” for someone who never served in the armed forces, and also for claims that “God Hates Purple Heart F@gs” by “Rev” Phelps.
Makes perfect sense. Aultimer(Quote)
Pamla Sterner says:
This is NOT a First Amendment issue. If it were, Judge Blackburn would still be wrong. The Supreme Court ruled (Garrison v State of Louisiana 379 U.S. 64 1964) that false statements made knowingly and intentionally are NOT PROTECTED under the First Amendment. This is a matter of MISREPRESENTATION. These people are misrepresenting themselves to be a military hero. Do we have to prove that any harm was done? First does anyone lie unless it is to benefit him somehow? Second when someone trusts someone based on their tales of military service and of medals earned that person is held in high esteem. He is asked to be the grand marshal of a parade, speak at a memorial service, speak in schools, newspapers do articles about him. Thus he has GAINED something from misrepresenting himself. Then when he is exposed, the next TRUE veteran that comes along will be met with doubt. BTW-Someone needs to tell Scooter Libby that the Colorado Court has upheld his right to lie...he wasn’t under oath, simply lying to investigators. Noone was hurt by his lies...no harm no foul? Pamla Sterner(Quote)
GRIM says:
So...real soldiers are fighting for free speech of people to lie about serving for personal gain? I don’t know, but I didn’t serve so that Joe Blow could say that he got a silver star, whilst sitting on his couch in his mother’s basement drinking beer.
Of course, we don’t serve so that people can burn our flag or walk on it, either ‚but that happens, too. Though, not usually for “personal gain”, either. GRIM(Quote)
Tim says:
I don’t really see what’s gained by claiming one has medals they haven’t earned.
My military awards aren’t worth the cloth they’re made from. My accomplishments, as a person, must be weighed in their totality. There’s nothing on my DD-214 or anyone else’s that, by itself, is sufficient to create, “personal gain.”
If it’s so important to protect this “valor,” I suspect that another poster’s “less restrictive means,” which involves a publicly accessible database containing a list of persons who are authorized a certain medal would be a far better way of achieving whatever interest is served by “protecting” colored strips of cloth.
I suspect I’d care even less about this had I not worked hard to earn a few of those colored strips of cloth, but my “care meter” is pretty low, nonetheless. Tim(Quote)
Kevin R.C. O'Brien says:
I’d just like to point out that in this particular case, Mr Strandlof not only arrogated a number of awards and decorations for himself, but did it for personal gain, using his phony “heroism”.
http://www.denverpost.com/commented/ci_12537680
Gee... why did a guy with such an easily checked resume — one redolent of bogosity — go for months in the eye of Denver’s (then) two newspapers, without anyone checking him out?
Oh, got it. Like Bellesiles, he was on the “right side of history” and was in line with the narrative. I bet he had a good cause, too...? (Irony abounds: Strandlof was outed by vets, as all these guys are in the end, but also by a Democratic congressman whose staff called the FBI on him. I hope that politicians of all parties continue to decline help from crumbs like this).
Of course. Those poor “homeless vets” — 99% of which, at least, were never vets. (Read Burkett & Whitley to see how guys like this, and their media enablers, created the public perception that Vietnam veterans were homeless nutballs — and are repeating the act with Afghan and Iraq vets).
The money that Strandlof collected for the poor homeless vets seems to have gone to a poor homeless non-vet, singular, namely himself. The various phonies listed in sidebar at the end of the Denver Post article linked above all were getting something — usually something material — out of it, too.
No doubt we taxpayers are paying for this cretin’s lawyers, too. Kevin R.C. O’Brien(Quote)
Kevin R.C. O'Brien says:
Apparently one of Strandlof’s other causes, which he also promoted on the authority of his phony military history, was the repeal of DADT. NTTAWWT. Kevin R.C. O’Brien(Quote)
Pamla Sterner says:
I am obvioulsy not a lawyer. I am someone who went to college as a non-traditional student (considering pursuing my Masters Degree) and saw honor being stolen from people who fought for our country. The First Amendment was primarily designed to protect policitcal speech, not to be able to FALSIFY GOVERNMENT DOCUMENTS like the DD214, put false statements on resumes, be the grand marshal in a veterans parade (when you lied about your military service), be seated at a table of honor at a military banquest (when you never served, but claimed you did), speak to schools and groups of people about the sacrifice you gave to your country (which you didn’t do, and most people who did, can’t speak about them because they are DEAD), etc. What is you guy’s problem here? That a person should be granted a constitutional right to lie? That military medals have no value as “Tim” says, that no one was harmed, (except the true veterans who then come along and a newspaper will not print their story, nor will people give him/her the acclomades he/she deserves because the person may be lying, or that nothing was gained by the individual who lied (except the honor and esteem, free meal, speaking fees, etc. Maybe if I got a Masters Degree I would understand this? NO, I will never understand where you guys are coming from. But then again, I happen to think military medals do have value. Call me stupid. Pamla Sterner(Quote)
Michael Ejercito says:
To the extent that the Stolen Valor Act applies to lying about one’s military service for the purpose of material gain, it remains good law and the court here had not stricken down the application of the Stolen Valor Act to those situations. The court ruled that the application of the statute in Strandlof was unconstitutional. Michael Ejercito(Quote)
Jack Marshall says:
Pamla: you’re not stupid,
You’re right. Jack Marshall(Quote)
Pamla Sterner says:
Thanks Michael and Jack. Michael, it was because of Strandlof’s made up military honors that he was able to found and raise funds for the Colorado Veterans Alliance. Again, I say it isn’t about the right to say whatever you want to say. Although the Supreme Court in 1964 said that knowinly making false statements are not protected by the First Amendment. It is a matter of misrepresentation. You cannot misrepresent yourself as a police officer, why can you misrepresent yourself as a military hero? Pamla Sterner(Quote)
Michael Ejercito says:
Did any of the specific charges against him in this case about him using his fraudulent military honors to raise funds for the Colorado Veterans Alliance?
It would be easy to justify applying the Stolen Valor Act in that situation against the First Amendment challenge. Michael Ejercito(Quote)
Free Speech or Theft? The Law and Ethics of Stolen Valor « Ethics Alarms says:
Free Speech or Theft? The Law and Ethics of Stolen Valor « Ethics Alarms says:
Robin says:
Could someone tell me if the entire SVA is unconstitutional or just the section cited in the case?
Thanks. Robin(Quote)
Michael Ejercito says:
Just the application in this specific case.
If one lied about being a veteran for the purposes of fund raising, applying the Stolen Valor Act would be constitutional. Michael Ejercito(Quote)
CAAFlog » Stolen Valor Act Ruled Unconstitutional says:
Kevin says:
I know of many Serviceman friendly bars where a combat vet cannot buy a drink, also there are many events that admit military for free,ballparks,racetracks,and free meals on veterns day, memorial day, ect. Also many businesses give huge discounts to servicemen, meaning they have to raise prices for everybody else. I don’t see how this can be harmless free speach, but out and out theft, and fraud. Kevin(Quote)