Believe it or not, we are still living in a time of war. While the White House has declared an end to the war in Iraq, and the war in Afghanistan is “winding down,” the truth is that we still have American soldiers deployed in hostile areas. Many of our service members return from deployment with experiences the rest of us at home will never see. To recognize these unusual experiences, the United States has a system of military honors to recognize those service members who conduct themselves with extreme heroism, showing bravery above and beyond the call of duty while under fire. The Congressional Medal of Honor is one of those awards given to service members for acts of valor when engaged with an enemy. But not everyone who claims to have received one of these medals is necessarily cloaked in honor; there are some who claim to be recipients of military awards they have not earned. For some, it’s a way to claim other benefits reserved for medal recipients. For others, it’s a way of gaining attention and respect.
The Stolen Valor Act of 2005, 18 U.S.C. 704, provides in part that “[w]hoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.” There are also enhanced penalties for certain medals and awards, like the Navy Cross or the Purple Heart. In the hubbub surrounding the Supreme Court’s decision regarding the Affordable Care Act (released the same day), the opinion in U.S. v. Alvarez got a little lost in the shuffle.
The respondent in the case, Alvarez, introduced himself at a water district board meeting as a retired Marine and a holder of the Congressional Medal of Honor. His claims were untruthful, and he was prosecuted under the Stolen Valor Act. Alvarez ultimately pled guilty, but reserved the right to appeal under a First Amendment claim.
Justice Kennedy delivered the opinion of a divided Court, beginning by acknowledging precedent that content-based restrictions on speech are presumed invalid. The Court continued to discuss categories of speech where content-based restrictions have been permitted, such as defamation, child pornography, fraud, and perjury: “As our law and tradition show, then, there are instances in which the falsity of speech bears upon whether it is protected. Some false speech may be prohibited even if analogous true speech could not be. . . .[this opinion] rejects the notion that false speech should be in a general category that is presumptively unprotected.”
The Stolen Valor Act of 2005 does not address speech that falls into any of the recognized categories. “This statute seeks to control and suppress all false statements on this one subject [military medals] in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain.” Essentially, the issue with the Stolen Valor Act relates to governmental policing of truth—the statute as written does not take into account whether the misrepresentation was made to gain benefits or any material advantage. To criminalize falsehood solely on the basis of falsehood would be to give the government broad power to censor speech.
This is not to say that lying about military honors is acceptable or tasteful. The Court does note that the Congressional Medal of Honor is the highest honor a service member may receive for valor in the face of the enemy, and that “[f]rom one perspective it insults their bravery and high principles when falsehood puts them in the unworthy company of a pretender.” However, the First Amendment still applies and even the “pretenders” have Constitutional rights: “Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so.”
In addition to noting that the remedy for false speech is more speech, not restricted speech, the Court also suggests that a database of medal recipients would be a less restrictive means of verifying claims and protecting the military awards system. The Department of Defense has previously noted problems with this proposal, including incomplete or missing service records. The point of the matter, though, is that the Act as it stands is overbroad and has the capacity to chill speech – even if the speech happens to be a bald-faced lie.
All this might be old news, since the Court released its opinion in June 2012. However, we have not seen the last of the Stolen Valor Act. There is no honor among thieves, and Congress has taken measures to narrow the scope and prevent theft through false honor. In January 2013, Representative Joe Heck (NY-3) reintroduced the Stolen Valor Act of 2013 (H.R.258), which would criminalize lying about receiving certain medals to gain veterans benefits. Senator Dean Heller (R-NV) introduced a similar bill in the Senate (S.210) in February. As of March 9, 2013, both bills are still in committee. The added measure of the material gain through false speech may solve the issue with the current Stolen Valor Act, appearing to draw directly on the Court’s opinion. It will likely be a while before we discover the fate of these bills, but the fact that lawmakers are still considering the issue indicates the importance of the issue. Many of our service members are still serving in hostile areas, and their sacrifice is deserving of honor.
There is more to the legacy of U.S. v. Alvarez. Perhaps as a response to the Court’s suggestion, the Department of Defense attempted to create a database for medal recipients. Launched in July 2012, the new website initially only covered awards of the Medal of Honor since September 11, 2001. Since that time, the listings have expanded to include other awards, some branch specific, and honorees (in some categories) reaching back to Civil War records. While compiling the older records has been difficult, it apparently is not impossible. And while the Court has protected a First Amendment right to lie about military honors, both Congress and the Department of Defense, in raising awareness for our military heroes, are making those particular lies just a little more difficult to believe.
To learn more about military valor awards, and see lists of recipients, visit http://valor.defense.gov.
Justine is a third-year student and Senior Staff Writer for the Campbell Law Observer. Justine can be contacted at email@example.com.