RUTHFULLY YOURS

Is wearing fraudulent medals of valor just a harmless pick-up line?

Jonathan Turley, a professor at George Washington University’s law school who is not involved in the two cases, said the Stolen Valor Act raises constitutional questions because it bans bragging or exaggerating about yourself.“Half the pickup lines in bars across the country could be criminalized under that concept,” he said.

The AP reports that defense attorneys in two Stolen Valor prosecutions are challenging the constitutionality of the Stolen Valor Act, passed unanimously in the US Senate and by acclamation in the House in late 2006. They say, the AP reports, “the First Amendment protects almost all speech that doesn’t hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.” In rebuttal, “Craig Missakian, a federal prosecutor in the California case, said deliberate lies are not protected. He said that the Constitution gives Congress the authority to raise and support an army and that this includes, by extension, ‘protecting the worth and value of these medals.’ ”

I asked leading First Amendment lawyer Floyd Abrams to comment, but he is busy in other litigations and only noted that the cases are “interesting.”  Another noted First Amendment defender, law professor Eugene Volokh, however, filed an amicus brief, in which his draft says, although “the [Supreme] Court has never articulated a clear rule for which knowingly false statements of fact are constitutionally protected and which are not,”

… But though the Stolen Valor Act does treat some false statements differently from others, it appears to fit within one of the exceptions to the R.A.V. principle: “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” Id. at 390. False claims of military honors are not limited to any particular viewpoints, or even particular topics of debate. They can equally be raised by people who are anti-war, who are pro-war, or who are just trying to get themselves elected to an office that is entirely unrelated to the military.

CONCLUSION

 For these reasons, the Stolen Valor Act, if read to apply only to knowingly false representations, is likely facially constitutional.

I spoke with BJ Burkett, whose book Stolen Valor led to the 2006 Act.  Burkett says, as does the federal prosecutor above,“The decorations are part and parcel of the Constitution creating the military, and anything that denigrates that weakens the Constitution.”  In an age where strict respect for the Constitution is chancy, that argument may not hold.  But, the fraud statutes are not challenged, at least where fraudulent gain is involved, and specific frauds do have additional prohibitions.  Further, false claims that demonstrably cause harm to others are upheld, from “yelling fire in a crowded theater” to falsely claiming not to carry H.I.V. and infecting a bar pick-up.

So, where does that leave the constitutional issue in the Stolen Valor challenges? Many liberals and conservatives should be in a quandary. Many liberals support “hate crime” and “hate speech” laws when aimed at designated groupings.  Many conservatives oppose restrictions on “freedom of speech.”  On the other hands, veterans in general, and medals of valor recipients in particular, are a grouping that earned elevated respect, and free speech is constitutionally limited when causing demonstrable harm.

So, is there demonstrable harm in falsely claiming medals of valor?

It is clear that almost all veterans and medals of valor recipients, along with a unanimous Congress, believe there is, which should be prosecuted.  It is clear that such frauds gain honors they do not deserve.  Indeed, many also materially gain, in direct benefits and prestige used to further their careers.  For example, there are more claimants at the VA to being POWs, who receive a medal, than were. Taxpayers are harmed, as well as other vets who are placed on lower priority.

This is not a right to burn the flag, our nation’s flag not being specifically mentioned in the Constitution, and not analogous in that burning a symbol may hurt patriots’ feelings but falsely claiming medals of valor directly contravenes the sole lawful authority of the DOD to issue them.

It is important to note here that the reluctance of the DOD to create a comprehensive database of legitimate medals of valor recipients is inexcusable.  (I wrote about it here.)

Burkett hopes that the prominence of this challenge may lead to the DOD getting its act together, and to raising the penalty from a misdemeanor to a felony.  Look at this gay clown claiming unearned medals of valor to support “gay rights.”