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Stolen Valor Act Dead After Supreme Court Decision?

Supreme Court kills Stolen Valor Act, but will another proposed bill become law?

On June 28, 2012, the Supreme Court struck down a provision of the Stolen Valor Act of 2005 that made it a federal misdemeanor to lie about being the recipient of a military award for valor. The decision was overshadowed by the media’s focus on the court’s upholding of the Obama administration’s health care program that day.

The “stolen valor” ruling by the justices says that the free speech provision in the First Amendment to the Constitution protects the right to lie, even about being a war hero. Free speech advocates agreed with a June 30 Washington Post editorial calling the decision “a commendable reinforcement of the First Amendment and its sanctity.”

Veterans’ groups mostly condemned the decision. Some in Congress said they would introduce new legislation to penalize fakers who pretend to have earned decorations like the Medal of Honor, the nation’s highest award for heroism. One reporter wrote that veterans were “seething.” Veterans of Foreign Wars Commander-in-Chief Richard L. Denoyer said in a press release, “Despite the ruling, the VFW will continue to challenge far-fetched stories, and to publicize these false heroes to the broadest extent possible as a deterrent to others.”

In its narrowest sense, the court decision was about Xavier Alvarez, a Los Angeles man who acknowledges that he lied when he claimed to have been a Marine for 25 years and to have received the Medal of Honor. Alvarez made the claim in July 2007, speaking at a podium as an elected official at a water board meeting. He repeated the claim in conversations with co-workers. In fact, Alvarez never served in the armed forces.

Supreme Court of the U.S., 2010

The United States Supreme Court in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. Photo by Steve Petteway, Collection of the Supreme Court of the United States

Prosecutors went after Alvarez. He was convicted and sentenced to a $10,000 fine and a prison term of up to one year, but freed on bail. An appeals court overturned the conviction and the highest court in the land upheld the appeals court. Alvarez and his lawyers argued all along that the free speech clause in the First Amendment to the Constitution protects the right to lie, even when the lie is “inconvenient,” as the court described it, or “reprehensible” as one real-life Marine called it.

The justices seemed to believe that if it can be made a crime to lie about one thing, it can become a crime to lie about anything. What if you claim to have been the star quarterback on your high school’s varsity football team when you were really the nerd who sulked in a corner in the library? What if you put Robert Redford‘s portrait, instead of your own, on your Facebook page in the hope of impressing others?

 

Emotional Issue

Many Americans have strong views about the stolen-valor phenomenon. “It ticks me off that anybody would claim awards and decorations they haven’t earned,” said retired Lt. Gen. E. G. “Buck” Shuler, a former commander of the Eighth Air Force. “I suspect this started happening in a big way during the Vietnam era. What’s amazing to me is that someone can make an outlandish claim and nobody bothers to check.” But Shuler also said in a June 30 telephone interview that he “can see both sides” of this emotional issue.

“If it were up to me some of these fakers would have to go to prison,” said former Army Sgt. 1st Class Ronald Ogden, who served in an armor unit, also in a June 30 telephone interview. “The way I see it, lying about a military award is not free speech. If the Stolen Valor Act isn’t going to apply, Congress should pass a law that will.”

According to former Army Sgt. C. Douglas Sterner of Alexandria, Virginia, who maintains a web site about military valor  (www.homeofheroes.com), Congress is planning to do exactly that. “We’re not finished yet,” Sterner said in a June 28 telephone interview. He referred to a proposed new law, the Stolen Valor Act of 2011, also called H.R.1775, sponsored by Rep. Joe Heck (R-Nev.) and introduced in May 2011.

“I believe the [Supreme Court] justices said, ‘Come back to us with a bill that is constitutional,'” said Sterner. But the proposed legislation is actually tougher than the 2005 version; it would call for a fine of an unspecified amount or a six-month jail term “if the misrepresentation is that such individual served in a combat zone, served in a special operations force, or was awarded the Congressional Medal of Honor.” (The word “Congressional” is not part of the name of the award but appears in the statutory language).

Others, including many observers in Washington, say that the stolen-valor debate has now ended. A Capitol Hill aide who did not want to be named said, “There just isn’t the remotest chance” that both houses of Congress will enact new stolen-valor legislation any time soon. “It’s the summer of an election year, we have unprecedented budget challenges facing us in the fall, and it’s just not in the cards.”

No one fully understands why so many Americans pretend to have earned something they didn’t.

The Stolen Valor Act of 2005 may be dead, but phony war heroes may very well be with us to stay.

By

Robert F. Dorr is an author, U.S. Air Force veteran, and retired American diplomat who...