Editor’s note: This is part two of a two-part series on stolen valor.
The United States v. Alvarez. Initially the U.S. Court of Appeals for the Ninth Circuit decided Alvarez on Aug.17, 2010, ruling the Stolen Valor Act unconstitutional. Specifically, in the 2-1 decision, Judge Milan Smith stated for the court that lies not within traditionally unprotected subsets of false facts are subject to First Amendment protection, the Stolen Valor Act is not subject to defamation law precedent, and there’s no compelling reason for government interest in banning such lies.
“The right to speak and write whatever one chooses – including, to some degree, worthless, offensive and demonstrable untruths – without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment,” Judge Smith wrote. If lying about a medal can be classified as a crime, Smith said, so many everyday lies could become criminal acts, such as lying about one’s age, misrepresenting one’s financial status on Facebook, or telling one’s mother falsehoods about drinking, smoking or sex.
On March 21, 2011, a majority of judges in the U.S. Court of Appeals for the Ninth Circuit refused to rehear the Alvarez case en banc. In the order refusing to hear the case en banc, Judge Alex Kozinski issued a lengthy concurrence, responding to critics of the decision and asserting that the First Amendment covers most varieties of lying and misrepresentation, where not otherwise unprotected by the First Amendment under the traditional view. The traditional view holds that only certain varieties of speech are exempt from standard constitutional scrutiny such as fraud, fighting words, defamation, incitement (including to a “clear and present danger”), and speech attendant to the commission of a crime. Judge Diarmuid O’Scannlain dissented from the denial of rehearing, arguing that false representations are not per se entitled to First Amendment protection.
On Oct. 17, 2011, the U.S. Supreme Court agreed to consider the validity of the law. On June 28, 2012, the Supreme Court found the law unconstitutional in a 6-3 decision, with Justices Scalia, Thomas and Alito dissenting. In United States v. Alvarez, the majority held that the Stolen Valor Act was an unconstitutional abridgment of the freedom of speech under the First Amendment.
Following the Supreme Court decision, the U.S. Department of Defense announced they would unveil a new website, valor.defense.gov, which would provide a public record of medal recipients. That site was unveiled on July 25, 2012. Additionally, in response Rep. Joe Heck sponsored the Stolen Valor Act of 2012 to criminalize profiting by falsely claiming to have received a military medal for serving in combat, which passed with a vote of 410 to 3; a companion bill was sponsored by Sen. Jim Webb, which passed as an amendment of the defense authorization bill. In the 113th Congress, Rep. Heck reintroduced the modified act, receiving 65 cosponsors.
Procedural history of the Stolen Valor Act
House: The Stolen Valor Act of 2013 H.R. 258 was introduced by Rep. Joe Heck (R-NV) on Jan. 15, 2013. It was referred to the United States House Committee on the Judiciary and the United States House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations. On May 20, 2013, the House voted to pass the Stolen Valor Act of 2013 by 390–3 in Roll Call Vote 161.
Senate: The Stolen Valor Act of 2013 was received in the United States Senate on May 21, 2013. It passed the Senate by unanimous consent on May 22, 2013.
Presidential signature: The Stolen Valor Act of 2013 was signed by President Barack Obama on June 3, 2013. The Act makes it a federal crime to fraudulently claim to be a recipient of certain military decorations or medals in order to obtain money, property, or other tangible benefit
The Stolen Valor Act of 2013 is a United States federal law that was passed by the 113th United States Congress. The law amends the federal criminal code to make it a crime for a person to claim they have served in the military, embellish their rank or fraudulently claim having received a valor award specified in the Act, with the intention of obtaining money, property, or other tangible benefit by convincing another that he or she received the award.
The law is a revised version of a previous statute struck down by the Supreme Court of the United States in United States v. Alvarez. In Alvarez, the Supreme Court ruled the arrest and prosecution of a citizen for wearing unearned military awards, who did so without criminal intent, violates their constitutional right to freedom of speech.
Provisions of the bill
This summary is based largely on the summary provided by the Congressional Research Service, a public domain source.
The Stolen Valor Act of 2013 amends the federal criminal code to rewrite provisions relating to fraudulent claims about military service to subject to a fine, imprisonment for not more than one year, or both for an individual who, with intent to obtain money, property, or other tangible benefit, fraudulently holds himself or herself out to be a recipient of: Medal of Honor; Distinguished Service Cross; Navy Cross; Air Force Cross; Silver Star; Bronze Star; Purple Heart; Combat Action Ribbon; Combat Infantryman’s Badge; Combat Action Badge; Combat Medical Badge; Combat Action Medal; Or any replacement or duplicate medal for such medal as authorized by law.
The Congressional Budget Office report
This article incorporates public domain material from websites or documents of the Congressional Budget Office.
H.R. 258 makes changes to the current federal offenses relating to fraudulent claims about military service. As a result, the government might be able to pursue cases that it otherwise would not be able to prosecute. CBO expects that H.R. 258 would apply to a relatively small number of additional offenders, however, so any increase in costs for law enforcement, court proceedings, or prison operations would not be significant. Any such costs would be subject to the availability of appropriated funds.
Because those prosecuted and convicted under H.R. 258 could be subject to civil and criminal fines, the federal government might collect additional fines if the legislation is enacted. Civil and criminal fines are recorded as revenues. Criminal fines are deposited in the Crime Victims Fund and later spent. CBO expects that any additional revenues and direct spending would not be significant because relatively few cases would likely be affected.
Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.