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Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:

The New York Times covers this in an interesting article (which quotes and links to this post of mine on the subject). I'm inclined to agree with Rod Smolla that the law is likely constitutional; and this argument from Ron Collins doesn't seem to me to work:

"If the government cannot under the First Amendment compel reverence when it comes to our nation's highest symbol [the flag]," asked Ronald K. L. Collins, a scholar at the First Amendment Center in Washington, "why then can it compel reverence when it comes to lesser forms of symbolic expression?"

The law here doesn't bar speech that lacks proper reverence — it bars false statements of fact (and should reasonably be interpreted as barring only knowingly or recklessly false statements of fact), and the Court has held that false statements of fact generally lacks constitutional value. Nonetheless, as I argued in my earlier post, the caselaw is not entirely clear on this.

UPDATE: Surreal typo in title ("medical of honor" instead of "medal of honor") fixed. D'oh! Must have seemed pretty confusing at first glance.

Related Posts (on one page):

  1. Prosecution for Falsely Claiming To Have Gotten a Medal of Honor:
  2. More on the First Amendment and Knowing Falsehood:
Milhouse (www):
Medical of Honor? Is that a sort of portmanteau of "Medical discharge" and "Honorable discharge"?
3.20.2008 1:31am
neurodoc:
There are pathological liars out there, people who spin amazing bogus stories about themselves for no apparent reason other than self-aggrandizement. Sometimes, one wonders if they might not actually believe their own lies. Well, I suppose they will have to limit themselves somewhat in the future, staying away from claims to have received US military awards.
3.20.2008 1:32am
Eli Rabett (www):
You might enjoy this if you are into impersonation cases
3.20.2008 1:40am
BT:
I believe it should be Medal of Honor.
3.20.2008 2:02am
BT:
Your Honor. (:
3.20.2008 2:04am
Elliot Reed (mail):
I'd like to congratulate the U.S. Attorney for the Southern District of California for doing her part to ensure that law-abiding citizens no longer live in fear of this dangerous criminal's campaign of terror.
3.20.2008 2:07am
Gabriel Malor (mail):
Elliot, only "dangerous" criminals should be prosecuted? That's an interesting proposition.
3.20.2008 2:30am
Oren:
Gabriel, I think he's alluding to the fact that this man's conduct has not harmed anyone in a particular way and, while contemptible, ought not to be criminal.
3.20.2008 2:40am
tvk:
Well, he might not have directly harmed a particular person; but that is like saying a currency counterfeiter does not harm a particular person. In fact, counterfeiting medals is rather similar to counterfeiting currency in quite a few respects (also like trademark dilution in others).
3.20.2008 2:55am
cirby (mail):
Fraud is fraud, and someone doesn't pretend to have the Congressional Medal of Honor for no particular reason at all. They're always using it as leverage to get something for free or cheap (political office, business contracts, or drinks at the local bar).
3.20.2008 3:44am
Cornellian (mail):
Medical of Honor? Is that a sort of portmanteau of "Medical discharge" and "Honorable discharge"?

No, it's the award they give you when you finally figure out Congress's prescription drug program.
3.20.2008 4:21am
Bill Poser (mail) (www):
As I read the statute, it criminalizes the claim to have been awarded "a colorable imitation" of a medal or its insignia. That is, it would be illegal to say: "I have been awarded an imitation Congressional Medal of Honor". I suspect that the intention is to forbid wearing insignia to which one is not entitled or close imitations likely to give a false impression, but it seems to me that the statute is defectively written.
3.20.2008 4:51am
Hoosier:
>>>No, it's the award they give you when you finally figure out Congress's prescription drug program.

Well, then CLEARLY this guy is a fraud!
3.20.2008 6:30am
David Schwartz (mail):
tvk: Your counterfeiting analogy would be perfect if he sold the medal.
3.20.2008 8:23am
Ed Snible (mail):
The law doesn't just ban false statements. It also bans 'solicits for purchase'! (as well as purchases, attempts to purchase, mails, ships, imports, exports, produces blank certificates of receipt, manufactures, or sells, attempts to sell, advertises for sale, trades, and barters.)

It doesn't just cover important medals. It covers 'any decoration or medal authorized by Congress for the armed forces of the United States'.

The law has upset medal collectors. An article on their frustrations can be found at maineantiquedigest.com.
3.20.2008 8:59am
Chris 24601 (mail):
A medical of honor would be a red badge of courage, I suppose.
3.20.2008 9:46am
Virginian:
I am pretty sure you can tell when someone is falsely claiming to have been awarded the Medal of Honor when he refers to it as the Congressional Medal of Honor.
3.20.2008 10:02am
Virginian:

There are pathological liars out there, people who spin amazing bogus stories about themselves for no apparent reason other than self-aggrandizement. Sometimes, one wonders if they might not actually believe their own lies.


Like Hillary Clinton saying she was under sniper fire in Bosnia?
3.20.2008 10:04am
Random Commentor:
I fail to see the controversy. To claim to be in a group in order to induce someone else to act in reliance on that claim is fraud. Without having really dug into this issue, it seems like this law just drops or weakens the reliance prong for false claims related to this particular group, which makes sense because it is a group that is created by and whose membership is exclusively controlled by the government. The government has a special interest if policing people that claim the government has declared them to have special merit. There is not a free speech issue here at all that I can see.
3.20.2008 10:45am
neurodoc:
Virginian, I am taken aback by HRC's claim about coming under sniper fire in Bosnia. Was it reported at the time that FLOTUS was ever in danger during the course of that visit or any other one?
3.20.2008 11:48am
Virginian:
neurodoc,

This article from newsbusters.org says that the news articles describing the trip made no mention of sniper fire, and includes photos showing HRC and Chelsea calmly and erectly walking from the plane.

Of course, many will argue that newsbusters.org is a pawn in the vast right wing conspiracy and dismiss this article as VRWC propaganda.
3.20.2008 12:08pm
Virginian:
It is interesting how many politicians think they still live in pre-blog times, where they could make such bold exaggerations or misstatements and count on a friendly and/or lazy press to not fact-check them.
3.20.2008 12:32pm
Charlie (Colorado) (mail):
If I call myself a "medical doctor" with no MD degree, I can be prosecuted, no? At least if I made any use of that as a credential.
3.20.2008 12:48pm
Charlie (Colorado) (mail):

It is interesting how many politicians think they still live in pre-blog times, where they could make such bold exaggerations or misstatements and count on a friendly and/or lazy press to not fact-check them.


Well, to be fair to Hillary, she and Bill have had this notion reinforced pretty strongly over the years.
3.20.2008 12:50pm
Realist Liberal:
neurodoc and Virginian~

In addition, Sinbad (yes I realize not exactly a serious voice) was on the trip with HRC and he said recently that he has no idea what she was talking about. (Sorry, I can't find the link right now.)
3.20.2008 12:51pm
Virginian:
Realist Liberal,

The comment from Sinbad is also mentioned in the newsbusters article.
3.20.2008 1:18pm
wfjag:

Like Hillary Clinton saying she was under sniper fire in Bosnia?


I was deployed to Bosnia at that time. The only people with guns anywhere around the Clintons were Secret Service and US military. (Ergo, she might have been).

ALCON: It is the "Medal of Honor", not the "Congressional Medal of Honor". It is awarded by order of the President. Congress has nothing to do with its award. Including the words "Honor" and "Congressional" in the same phrase would be an oxymoron.
3.20.2008 1:28pm
Skyler (mail) (www):
It's always been against the law to impersonate a police officer, except for the purpose of theater. There is also such a law regarding the wearing of military uniforms. If you aren't authorized to wear it, you can't wear it except for theatrical performances.

I suppose this is just an extension of that law. You can't claim to have the Medal of Honor, or any military award, or claim to be in the military if the claim isn't valid.
3.20.2008 1:34pm
Skyler (mail) (www):
The confusion about the name of the medal most likely is a result of the society created by congress to honor those awarded the medal of honor. The society is called the Congressional Medal of Honor Society. Somehow this seems to have been translated to the public consciousness into misnaming the medal as the Congression Medal of Honor. It's not. And I'm pleased to note that Eugene didn't fall for that common error.
3.20.2008 1:39pm
Pol Mordreth (mail):
Actually, the formal name is the Congressional Medal of Honor, "...established by joint resolution of Congress, 12 July 1862 (amended by Act of 9 July 1918 and Act of 25 July 1963) is awarded in the name of Congress to a person who, while a member of the Armed Services..." emphasis mine.

Linky
3.20.2008 1:50pm
r78:
Gosh, did the US Atty run out of medical marijuana clubs to bust? Is that they are spending our tax dollars to prosecute this douchebag?
3.20.2008 1:59pm
BruceM (mail) (www):
I've always felt this law was unconstitutional, at least insofar as the false statement is unconnected from commercial speech. If I lie about a having a medal of honor to a few guys who are bragging about their awards just to make myself look good (or to look equal) in there eyes, I think that's protected free speech. However, If I'm talking to business investors or potential customers and tell them I have a medal of honor for purposes of making them believe I am a more worthy (brave, honorable, trustworthy, recognized, patriotic) person to give money to or buy products or services from, then I think that can certainly be prosecuted.
3.20.2008 2:05pm
Elliot Reed (mail):
Gabriel and tvk, my choice of hyperbole was a criticism of this prosecutor's priorities. I might be convinced that there's some case where I'd see a prosecution under this law as reasonable, but there's no way this is it. Any prosecutor's office with enough spare resources that they can prosecute someone for inflating their military credentials during the public comments section of a state water board meeting is a prosecutor's office whose budget needs to be so the money can be spent on something with some value to society.

Maybe Eugene is right about the false statements of fact being constitutionally unprotected (Conlaw 2 was not exactly my best subject) but I'm very uncomfortable about the notion of the government selectively banning false statements of fact based on their subject matter. It's hard to put my finger on exactly what it is, but something is rubbing me the wrong way about the government deciding that some credentials are ok to lie about and others get you sent to the slammer for lying about. There's a legitimate antifraud interest here but we already have fraud laws for that.
3.20.2008 2:22pm
Jeffery W Wilson (www):

The law has upset medal collectors. An article on their frustrations can be found at maineantiquedigest.com.


The medal collectors have a simple and effective remedy available: enlist, and volunteer for service in Afghanistan or Iraq. Medal collectors who are ineligible for service in some way are out of luck, but that kind of discrimination isn't actionable (is it?).

Military decorations / medals aren't intended to be "collectibles" like stamps / coins / Beenie Babies(tm) / hat pins; they have intrinsic, symbolic value. They're earned, not purchased.
3.20.2008 2:43pm
Elliot Reed (mail):
Whoops, that should have been:

Any prosecutor's office with enough spare resources that they can prosecute someone for inflating their military credentials during the public comments section of a state water board meeting is a prosecutor's office whose budget needs to be cut
3.20.2008 3:02pm
wfjag:
Pol Mordreth wrote:


Actually, the formal name is the Congressional Medal of Honor, "...established by joint resolution of Congress, 12 July 1862 (amended by Act of 9 July 1918 and Act of 25 July 1963) is awarded in the name of Congress to a person who, while a member of the Armed Services..." emphasis mine.


Sorry Pol, but “actually” the formal name is “Medal of Honor” - instead of looking at a commercial website (ending in “.com” is a give away), look at the laws establishing the Medal:

10 USC §3741. “Medal of honor: award” – authorization for the Army;
10 USC §6241. “Medal of honor” - authorization for the Navy and Marine Corps;
10 USC §8741. “Medal of honor: award” – authorization for the Air Force; and
14 USC §491. “Medal of honor” – authorization for the US Coast Guard.

In addition to other benefits conferred by its award, the children of MOH awardees are eligible for appointment to attend the Military Academies: 10 USC §4342(c) (U.S. Military Academy); 10 USC § 6954(c) (U.S. Naval Academy); and, 10 USC §9342(c) (U.S. Air Force Academy). [An applicant to the U.S. Coast Guard Academy does not have to secure an nomination for appointment, unlike applicants to the Military Academies. As there are typically between 9 and 12 otherwise fully qualified applicants for each slot at each of the Military Academies each year, being eligible for an automatic Presidential nomination for appointment is a significant benefit. As Cadets at the Academies receive pay, benefits and non-taxable cash allowances, in addition to free room and board and a college education at a top college, this can be a significant financial benefit to the child of a HOM awardee].

HOM awardees, and their dependents, are also entitled to free medical and dental care from U.S. Military Medical Treatment facilities and programs administered by the Service Secretaries (which apparently would include TRICARE), without regard to whether they would otherwise be eligible, 10 USC §1074h, and HOM awardees qualify for a “special pension” from the VA, 38 USC §1562. That pension does not reduce “any other pension or other benefit, right, or privilege to which such person is or may hereafter be entitled under any existing or subsequent law. Special pension shall be paid in addition to all other payments under laws of the United States.” §1562(b), and “shall not be subject to any attachment, execution, levy, tax lien, or detention under any process whatever.” §1562(c).

Thus, award of the “Medal of Honor” confers significant financial benefits.

And, it's a quick check to determine who's a veteran or service member, and who's military experience is limited to watching movies. Calling the "Medal of Honor", the "Congressional Medal of Honor" is a give away.
3.20.2008 3:33pm
Hoosier:
>>>they are spending our tax dollars to prosecute this douchebag?

This is the first time I have seen the word "douchebag" on VC. (Just reporting for statistical purposes.)
3.20.2008 3:52pm
Pol Mordreth (mail):
Sorry, wfjag,

And, it's a quick check to determine who's a veteran or service member, and who's military experience is limited to watching movies. Calling the "Medal of Honor", the "Congressional Medal of Honor" is a give away.

really doesn't work that well. im my 7 years in submarines, it was referred to both ways by various commands, as well as the one person I met who wore one. (Michael Thornton, came to speak at my Nuclear Power school graduation.)

FWIW, in 18 USC 704, it is named as the Congressional Medal of Honor. And, although i cannot find the cite at the moment, I believe that CMH was the original name, and had been changed in 10 USC (as you note) in the amendments in 1963. I am not a military historian, however.

Respectfully,
Pol
3.20.2008 4:25pm
Elliot Reed (mail):
ALCON: It is the "Medal of Honor", not the "Congressional Medal of Honor". It is awarded by order of the President. Congress has nothing to do with its award. Including the words "Honor" and "Congressional" in the same phrase would be an oxymoron.
Isn't the medal presented by the President "in the name of Congress"? 10 U.S.C. §§ 3741 (Army), 6241 (Navy and Marine Corps), 8741 (Air Force). The ever-accurate Wikipedia also indicates that the Medal of Honor may be, and sometimes is, approved by special Act of Congress (though the President still presents the medal in that case). Congress's involvement with the medal may explain why the medal is often inaccurately referred to as the "Congressional Medal of Honor." In addition, I think people sometimes incorrectly refer to the Congressional Gold Medal as the "Congressional Gold Medal of Honor", which only exacerbates the confusion.
3.20.2008 4:40pm
Jeffery W Wilson (www):
Pol Mordreth wrote:


really doesn't work that well. im my 7 years in submarines, it was referred to both ways by various commands, as well as the one person I met who wore one. (Michael Thornton, came to speak at my Nuclear Power school graduation.)


Yes, there's frequently a spirited debate on this topic (which is surprising, given the number of "sea lawyers" -- you'd think we'd have this settled by now).


FWIW, in 18 USC 704, it is named as the Congressional Medal of Honor. And, although i cannot find the cite at the moment, I believe that CMH was the original name, and had been changed in 10 USC (as you note) in the amendments in 1963. I am not a military historian, however.


I'm inclined to go with 10 USC as providing the definitive name. I, too, noticed the 18 USC 704 use of the term "Congressional Medal of Honor". I can't explain the inconsistency other than to suppose that DoD (and the six committees that concern themselves will all things DoD) don't spend much time worrying about the text in 18 USC.
3.20.2008 5:11pm
wfjag:
Dear Pol:

I apologize to a fellow veteran for being snarky. 7 years as a submariner deserves a lot of respect -- months at a time totally cut off from friends and family, hot bunking, and being surrounded by enough water pressure to crush you flat should even a small mechanical failure occur, is beyond the comprehension of most people. I happen, however, at the moment to be especially P.O.ed at a couple of folks whose Boot consists of no more than sitting on their duffs and watching DVDs, and mistaking that for real world experience. That, and watching pundits and “experts” pontificate on the military, when it is apparent that the only time they have “served” anything was working as a waiter in college, makes my teeth grind. (But, maybe you’re more like a former submariner I know who looks at the lighter side, and views movies like “Crimson Tide” as a farce comedy.)

As far as I am aware, the HOM has never been officially known as the “Congressional Medal of Honor.” In the Civil War an “Army Medal of Honor” and a “Naval Medal of Honor” were authorized, and in the 1950s legislation for an “Air Force Medal of Honor” was enacted. Those laws were amended and re-enacted to the current provisions in Titles 10 and 14, U.S. Code, for the services.

You make a very interesting point, however. Since 18 USC §704 uses the term “Congressional Medal of Honor”, how can it be a crime to claim to have been awarded a medal that doesn’t exist, and has never existed? That looks like a much better defense than a contention of a First Amendment violation.
3.20.2008 5:18pm
Jeffery W Wilson (www):

I'd like to congratulate the U.S. Attorney for the Southern District of California for doing her part to ensure that law-abiding citizens no longer live in fear of this dangerous criminal's campaign of terror.

It's entirely plausible that Governor Spitzer's legal team is making this exact argument in discussions with the U.S. Attorney for the Southern District of New York.
3.20.2008 5:20pm
Virginian:
Enough arguing about trivial matters. Let's get to something important, since we have an expert on board...

Pol Mordreth -- is the correct pronounciation sub-MAH-rin-er or sub-muh-REEN-er?
3.20.2008 5:26pm
Pol Mordreth (mail):
wfjag,
No apology needed, no offense taken. (and I do tend to look at the lighter side, as I think "Down Periscope" was the most accurate submarine movie ever made... I know I've worked with all those misfits)I definately understand your frustration, and share it on many topics about REMF 'experts'.

I make no claim to expertise on this topic, I just remember it being said both ways while I was in, and that we were instructed that the proper format was CMH. I wouldn't doubt that some of my RDC's were wrong, though.. I sure wanted to tell them they were wrong about other things! (heheh)

Respectfully,
Pol
3.20.2008 5:31pm
crimelord (mail):
My father, William G Harrell, received the MoH in WW II and he didnt care either way.
3.20.2008 5:48pm
Ed Snible (mail):
Jeffery -- I don't own military decorations. I'm curious though. Do most vets frown on civilians collecting war memorabilia? Is collecting current medals much more offensive than collecting civil war and WWI medals?

Allowing collectors to buy and sell military medals gives them recognized value. This gives a tax benefit to the widows of war heroes who donate the medals to museums and local historical societies.

The books that military medal collectors write aid the engravers and designers of new decorations.

I respect the military. I seriously considered a military career (I took the armed services vocational test and talked to a recruiter). I decided (it was 1986) that my country didn't need me. I know that I am not a hero.

This law makes it illegal for a collector or museum curator to truthfully say he wishes to purchase a civil war decoration.
3.20.2008 8:19pm
Pol Mordreth (mail):
Virginian, sorry, i missed your post...

As far as my last skipper said, it was sub-mah-REEN-er, but i personally feel that this is just an attack of acute inferiority complex. Since, as an engineer, first I make the water and then I walk on it, either pronounciation used by lesser mortals is fine with me.

(heheh)

As an aside, you do know that there are only 2 groups on any naval vessel... Engineering department, and passengers.

Respect,
Pol
3.21.2008 12:11am