The U.S. District Court in Colorado ruling in the case of  US v. Strandloff, has found the “Stolen Valor Act,” 18 U.S.C. § 704(b) & (d), to be an unconstitutional infringement of free speech.  Rick Strandloff represented himself as a wounded decorated Iraq War veteran in order to rally support for veterans and opposition to the war. The original Stolen Valor Act of 2005 criminalized the wearing of military medals an individual was never awarded; later, it was expanded to included the crime of falsely saying or writing that one has been given military honors for valor. The Act says, in part, that it is a crime to…

…falsely represent [oneself], 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 …

Deciding an issue like this inevitably comes down to both law and ethics. Not all speech is protected by the First Amendment, and deciding how many kinds of speech we can sensibly and reasonably prohibit requires a court and a culture to think about just how bad—how wrong–certain kinds of speech may be, based on their actual and potential harm. In Germany, it is a crime to question the Holocaust. Some climate change zealots have argued that it should be illegal to argue against man-caused global warming. Obviously prohibiting any kind of speech is a slippery slope. Clarence Darrow wrote, “In order to have enough freedom, you must  have too much,” and I agree: it’s good that the Courts are reluctant to let the government punish speech. What Strandloff did, however, comes perilously close to fraud. How much protection should be accorded to intentionally false speech? Do we have a Constitutional right to lie?

Again we must ask, “What’s going on here?” Deciding how bad “stolen valor” is, we have to think about what is really being stolen. Does falsely claiming to be a war hero harm genuine war heroes, by making them less credible, cheapening their honors, or stealing benefits—like being a Grand Marshal in a Fourth of July parade—that rightful belong to a true war hero? Or are there sufficient statutes against actual fraud to make another exception to free speech unnecessary?

The legal question is almost certainly headed to a Federal Court of Appeals, if not the U.S. Supreme Court, but the ethical question is photo-finish close. I am pre-disposed toward the argument that falsely claiming to be a war hero can be legitimately banned by Congress as in the interest of national security. My late father had been awarded a Bronze Star, a Silver Star and a Purple Heart for his actions in the Second World War, and he was very proud of his service as well as grateful for the kind and respectful treatment he received from strangers and new acquaintances in recognition of heroism. This was part, an important part, of his compensation for his sacrifices in defense of his country, and for him to lose the value of any of it because phony “heroes” like Strandloff seems to me to be true theft, and worthy of punishment. On the other hand, my Dad may have said, “Oh, hell—they’re just medals. Why should I care about some other guy’s lies?” I wish I could ask him.

Prof. Eugene Volokh on his eclectic and defiantly erudite blog (with others) The Volokh Conspiracy, has announced his disagreement with the Strandloff case, for which he wrote an amicus curiae brief stating his reasons for believing that the Stolen Valor Act was constitutional. The debate among commenters has raged on for days, with each side being well represented. After reading them all, I am still on the fence. Below is a sampling; you can (and should) read the whole thread here:

Houston Lawyer says: If this act is legal, it should also be legal to prosecute any public official for making a false statement while campaigning or promoting legislation. The idiots who falsify their military valor do so much less harm.

epeeist says: I have to agree with the court and disagree with Prof. Volokh, inasmuch as the law extends even to verbal statements. The other examples given of false statements of fact seem to be ones where the false statement causes harm/direct harm (as it would in e.g. a fraud situation). The examples of permissible speech such as Holocaust denial, while they might (arguably) cause indirect harm, are permissible because they don’t cause direct harm.

To use an analogy, lying about one’s grades to get a job is possibly criminal or tortious (akin to misrepresenting one’s medals to get a job or other benefit), and forging a transcript (akin to wearing false medals?) is presumably criminal. But telling an obnoxious family member that you did better than you actually did in college, is (except to the extent one objects to lying generally, which I do but not to the extent of criminalizing it) not a problem. Similarly, pretending to be a lawyer or MD or engineer etc. normally wrong if in the context where harm could be caused (e.g. in a court or hospital or acting for clients); verbally stating you’re such in a friendly argument in a bar (with no reliance or detrimental reliance) to try to “win” your point, what’s the harm?

As much as I don’t like it, so long as there is no direct harm (e.g. lying about medals to get a discount or in running for public office to get votes or the like), I can’t see how lying about having received a medal should or can be criminalized anymore than lying about one’s weight (which could be wrong, if you e.g. lied about weight to become a police officer or firefighter…). Not to mention, I don’t really see a humor/satire/parody exception as much protection if people can be put on trial and forced to prove such (with a reverse onus?).

Malvolio says: Hmmm, can the government criminalize false statements like “I am a lawyer” or “I am a doctor” or does it have to wait until some specific person reasonable relies on the statement and suffers some harm? Can the government criminalize counterfeiting — which after all is merely the printing of a document which falsely but plausibly claims to be government-issued?

All these examples (and Stolen Valor) are false statements about the speaker’s relationship with the government, which (to me) strengthens the government claim to both the responsibility and authority to regulate them.

Mark Horning says: Bob counterfeits US Federal Reserve notes, but does not intend to pass them off as currency. He just wants to, oh I don’t know, sleep on a big pile of money. Regardless, it’s pretty clear that the law presumes that fraud is or will be occurring. How is this different from the “Stolen Valor” act in presumptively assuming fraud on the part of the actor?

Roscoe says: A couple of points.First, the argument that a knowingly false statement is protected by the First Amendment in the absence of reasonable reliance and concrete harm is just wrong. There are numerous instances where false statements are criminalized in the absence of either reliance or damages. For example, 18 USC 1001 makes it a crime to make a material false statement to a government agent. There is no requirement that the false statement hindered the government investigation, and it is a crime even where the agent never believed the false statement for a second. The “perjury trap” argument argument has also been rejected.

Second, I think the government has compelling reasons to prevent people from wearing unearned decorations. This is not just a matter of “hurt feelings,” the government hands out medals for a reason. Rewarding and recognizing heroic acts of some soldiers inspires other soldiers to perform similar feats. As Napoleon said (and I don’t think it has changed much) “a soldier will fight long and hard for a bit of colored ribbon.” The government’s purpose in awarding decorations is hindered if any damn fool can strap one on.

CatCube says: This is one of those times where I honestly do not understand my country. Claiming to have an unearned Medal of Honor or Silver Star is self-evidently fraud. The heroism and status that they proclaim to others are themselves valuable things being stolen, and I’m truly baffled by those who don’t see that. When you have a device that the government uses to certify a hero, it cheapens it when anyone can wear or claim it.

Laura Victoria says: The academic analysis here by Professor Volokh may be correct, the problem is the slippery slope. The government rulers won’t be balancing angels on the heads of a pin. They would jump on this as grounds to criminalize any lie. The 1801 statute has been tremendously abused already — look at Martha Stewart.
Weigh all of the slippery slope against this extremely narrow issue. Do I feel safer in America because a false valor claimant is jailed? Please. They can be shamed and shunned and that should give justice to the victims. We don’t need a federal criminal prosecution. Every court ruling that errs on the side of speech should be applauded.

CatCube says:…People who pretend to have our nation’s highest awards are ethically criminals, but for reasons that completely pass my understanding, there’s apparently debate about whether or not they should be legal criminals. I don’t buy the “well, just saying that you’ve got it doesn’t hurt anyone that we can tell.” Look, let’s make an analogy to counterfeiting: counterfeiting and passing money, by itself and on a very low level, doesn’t hurt any one person. If I pass a good fake $20 to someone else, they’ll probably be able to buy stuff with it, and that person will probably be able to buy something, and so on. There’s no reason to spend time looking for counterfeiting, except that the system is based upon the fact that you trust that the cash you have in your pocket can be used to buy things. When’s the last time that most of you have actually inspected the bills you get to see if they have the security threads, etc.?* I’ll bet that most of you haven’t in a long time. When you have counterfeiting get above a small level, and there’s no visible effort by the government to stop it, people stop having that trust and the system will begin to break down.

Counterfeiters prey on that trust to accrue value to themselves. Similarly, someone who pretends to have the MOH or SS is preying on the trust of others to accrue value to themselves, though honor and reputation in place of money. Now, I realize that there are all kinds of lies that people tell to accrue reputation, but this one is different regarding freedom of speech for two separate but related reasons:

1) The honor that the MOH bestows is like the value of money. It exists only because the government proclaims it to exist, and the general public accepts that proclamation as part of its culture.

2) Like the value of any particular Federal Reserve Note, the truth or falsity of a claim to have the MOH is solely determined by the government. This differentiates it from, say, Holocaust denial or 9/11 truthers, since while both of those are wildly incorrect beliefs, they can be honestly held by someone who misinterprets historical or physical evidence. On the other hand, punishing someone for falsely claiming the MOH isn’t saying “don’t be wrong,” it’s saying “don’t lie.”

Neither of these two things, by themselves, would justify making lying about having medals illegal. However, taken together they virtually eliminate the risk of the government abusing this particular authority to silence any critics, while they help to reduce the incentive for fraudsters to denigrate the value of the medal and the honor given to it’s true holders…

Bama 1L says: ... I have a good job and some nice degrees on my wall. I was lucky and worked hard when someone was watching. My late grandfather had a Silver Star, a couple Bronze Stars, and a Purple Heart. He was brave when it mattered. He was a hero. There is no comparing our achievements, except to say he always wanted me to have the life I have and not the life he had.  On the other hand, lies are lies. I (and my late grandfather) come from a moral tradition (Catholicism) that has had a great deal of difficulty justifying a lie that is socially beneficial (“white lie”) or even saves an innocent life. So I do not believe that, in itself, lying about having received a medal differs from lying about having received a medical degree, or for that matter lying about remembering your wife’s birthday. We might look at why you told the lie or what the lie’s effects were, but the content of the lie is really not that important except inasmuch as it might lead to further consequences. There are circumstances in which it might be more culpable to lie about remembering your wife’s birthday than about whether you received the Bronze Star.

But we are not talking about which honors are more significant nor about whether some lies are worse than others. We are talking about imposing criminal liability: using the force commanded uniquely by the state to seize someone, subject him to criminal process, and thrust him into prison. We should be reluctant to do this. The law, in general, does not criminalize certain categories of falsehood based solely on their content. This statute purports to say that any false statement about medals is a crime punishable by imprisonment. That is a bad law and I thought it was the kind of law against which the First Amendment protected us.