The Revamped Stolen Valor Act

By Jillian Mallon

On Jan. 3, 2006, the 109th Congress of the United States enacted the Stolen Valor Act of 2005 (S. 1998 (109th): Stolen Valor Act of 2005). This act was designed to protect  the reputation and significance of medals or decorations awarded by the president or the Armed Forces of the United States such as the Medal of Honor, the Navy cross, the Purple Heart, and so forth. The act dictated that if a person claimed that he or she won a medal that he or she did not win, that person would have to pay a fine and serve up to six months or one year in jail.

Not one person was convicted under the Stolen Valor act until Xavier Alvarez in 2007. Alvarez was an elected water district board member in California who made claims at a public meeting that he was a retired U.S. Marine who had been awarded the Congressional Medal of Honor. The FBI obtained a taped recording of the meeting and charged Alvarez with two counts of violation of the Stolen Valor Act (United States Courts , “U.S. v. Alvarez: Stolen Valor or Stolen Freedom of Speech?”, 2013). Alvarez’s lawyer claimed that the Stolen Valor Act was invalid under the First Amendment right to freedom of speech. The case was eventually appealed by the government to the Supreme Court which heard oral arguments concerning the case on February 22, 2012.

The Supreme Court decided that the Stolen Valor Act was unconstitutional. The court opinion stated that content-based regulations of the First Amendment right to free speech have only been permitted in cases of defamation, libel, slander and fraud, among other rare occurrences. Though these cases usually involve misleading the public with false speech, the Supreme Court argued that in the case of United States v. Alvarez there was only false speech involved and no “legally cognizable harm”. The opinion went on to explain:

“Even when considering some instances of defamation or fraud, the court has instructed that falsity alone may not suffice to bring the speech outside the First Amendment; the statement must be a knowing and reckless falsehood” (United States v. Alvarez, 2012 WL 2427808 [June 28, 2012][No. 11-210]).

Misleading the public with false information is in fact a knowing and reckless falsehood. Xavier Alvarez knew that he hadn’t won the Congressional Medal of Honor when he announced it at a public meeting. The First Amendment should not protect untrue speech even if it exhibits no harmful threat. Lying about having a medal may not be such a serious crime that it can be justly punished with three years of probation and a $5,000 fine the way it was in Alvarez’s case. However, lying should not be protected by the First Amendment because it is knowingly false speech.

This year, 2013, a new version of the Stolen Valor Act is being drafted. NevadaCongressman Joe Heck has said that this Stolen Valor Act of 2013 will be more effectivebecause it will punish those who lie about receiving medals or rewards in order to benefitfrom these false claims instead of just the lie itself (Congressman Joe Heck Press Releases, “Heck Introduces Stolen Valor Act to Protect Integrity of Military Awards”,January 15, 2013). This act should be in place to protect the public from false statements. The new act will limits the punishment that a person who violates the act recieves. While the old act recommends an unspecified amount of fines and imprisonment, the new actsuggests a fine or no more than a year in prison (The American Legion, “SenateIntroduces Stolen Valor Act of 2013”, February 5, 2013).


Stolen Glory

By Gennie DePass

Former President George W. Bush signed into law the Stolen Valor Act of 2005 on December 20, 2006 with the intention of “enhancing protections relating to the reputation and meaning of the Medal of Honor and other military decorations and awards”.  In simpler terms, the act made it illegal to lie about serving in the military and receiving military honors. At a time when many people were out serving their country the act seemed to make sense, however just six years later the legality of the act was tested in the United States Supreme Court case United States v. Alvarez

In the case, Xavier Alvarez was arrested for violating the Stolen Valor Act of 2005 after introducing himself at a meeting by stating that he was “a retired marine of 25 years and retired in 2001”.  He then went on to state that he “was awarded the Congressional Medal of Honor.”  After cycling through the ninth circuit, certiorari was granted.

After reviewing the case the Supreme Court decided that the Stolen Valor Act of 2005 was a violation of free speech rights and the decision made against Alvarez in the lower court was reversed.

The decision made in United States v. Alvarez was no doubt a win for Alvarez and free speech rights, however it left many Americans with questions.  What about those brave Americans that actually serve in the military and risk their lives to keep others safe?  Is It fair that people can impersonate them after all that they do to keep Americans safe, especially during times of war?

Since the Alvarez ruling, many legislators have searched to find ways to amend the Stolen Valor Act in order to answer the thoughts of questioning American citizens.  Most recently, Congressman Joe Heck introduced theStolen Valor Act of 2013.  Heck’s previous bill was overturned due to similar worries of violating free speech rights.

Undiscouraged from his previous failed attempt Heck stated, “as long as people are willing to benefit from making false claims about receiving our nation’s highest military honors, I will stand up to defend the honor of the soldiers who have earned the awards and the sanctity of the awards themselves.”

Heck’s new bill is much more narrowly tailored then previous bills.  The new bill states that “whoever, with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself our to be a recipient of a decoration or medal shall be fined under this title, imprisoned not more than one year or both,”making it illegal to lie about being a veteran for ones own personal gains.

Heck is extremely confident about his reforms to the bill, however it has been said that there is only a 15% chance that the bill will actually be passed.

When contemplating this issue it is important to remember that an individual’s free speech rights end where another individual’s begin.  Until a balance can be decided upon between how best to honor the members of the armed forces and protect the free speech rights of the average American there is little that can be done.

DODA – Gays in the Military

Enacted in 1993 by the Clinton administration, the American military policy commonly known as “Don’t Ask, Don’t Tell,” has effectively been responsible for the dismissal of more than 12,000 service members based solely on their homosexual sexual orientation. By policy, the military is not to inquire directly about service members’ sexual orientation, while service members are simultaneously expected not to disclose their orientation and “refrain from homosexual acts.” (NYTIMES) As a result, ‘don’t ask’ was found to have violated these individuals’ First Amendment right to free speech by a federal judge this past September.
A case brought by [plaintiffs] the Log Cabin Republicans (a LGBT Republican organization) against the [defendant] United States was argued in a California District Court [LOG CABIN REPUBLICANS vs. UNITED STATES OF AMERICA and ROBERT M. GATES, SECRETARY OF DEFENSE – CV 04-08425-VAP], which found the policy unconstitutional and later ordered the U.S. military to immediately stop enforcing the policy. The defendant had to prove to Judge Virginia Phillips that the policy, which threatened dismissal as punishment for any admission of homosexuality, represented a government interest in maintaining “military readiness and unit cohesion” so great that it justified a violation of the First Amendment.
Phillips found that not only did the defendant not prove a significant government interest, but that the continued use of the policy would have a “direct and deleterious effect.” Numerous service members dismissed under the ‘don’t ask’ policy were named in the suit, citing emotional and physical trauma suffered during their time in the military for being gay. Several additional military personnel dismissed under the same policy held sensitive, high-level positions within the services and (hypothetically) were quite the loss.
Judge Phillips ruled that the law was unconstitutional, and on October 12, 2010, she ordered that the military immediately cease the application of this policy. The ruling, particularly the order to immediately cease using the policy, was met with resistance and threats of appeal. Within a few short months however, both the House and the Senate passed a bill that President Obama signed into law that will effectively repeal the policy altogether, once the U.S. military is finished reviewing the affects such a repeal will have.
What started as a First Amendment case in California court (by mainly Republicans, who have been generally opposed to providing rights and benefits to homosexual Americans) has now moved throughall branches of government and will (most likely) be repealed in a few short weeks.
-R. Chase Grier
New York Times Topics
Log Cabin Republicans vs. United States of America