Robin: Could someone tell me if the entire SVA is unconstitutional or just the section cited in the case?

Thanks.

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.

Thanks.

Pamla Sterner: 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.

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.

Pamla Sterner: 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.

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.

http://www.denverpost.com/commented/ci_12537680

Strandlof, 32, spared no detail in his alleged resume: Annapolis graduate. Marine captain. Survivor of the Sept. 11, 2001, attack on the Pentagon. Wounded three-tour veteran of the Iraq war.

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?

He backed mostly Democratic candidates sympathetic to his anti-war views in the run-up to the 2008 election.

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).

Beyond politics, he worked on behalf of homeless veterans…

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.

GRIM: 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.

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:
+1I don’t even know what our Soldiers are fighting for if not for the free speech of American citizens at home.

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.

Makes perfect sense.

Emsl: 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.

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.

sookie:
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.

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.

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.)?

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.

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.

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.

CatCube: 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.)?

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.

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: 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?

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.)?

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.

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?

Bama 1L: A presumption like that in criminal law would probably violate Due Process.

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).

Elliot: 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…

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.”

whit: we generally don’t punish attempts to “hold oneself out falsely” as a ANYTHING, why should recipient of honors get special treatment?

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.

whit: you are using the term “fraud” which kind of begs the question…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?”

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.]

Stephen Lathrop: 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.

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

Michael Ejercito: 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?

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.

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?