HEROISM, VALOR, AND DECEIT: FALSE CLAIMS
OF MILITARY AWARDS AND THE
FIRST AMENDMENT
Robert J. Juge, III*
268
INTRODUCTION ..............................................
I.
FREEDOM OF SPEECH: THE FIRST AMENDMENT ....... .271
A. Politicaland Commercial Speech: Valued and
Protected ...................................
B. Exceptions: Unprotected Categories of Speech .........
C. New, Previously Unidentified but UnprotectedAreas:
United States v. Stevens........................
11.
THE STOLEN VALOR ACT:
A TOOL
III.
IV.
275
FOR PROTECTING
AwARDs
..............................
A. The Stolen Valor Act
..........................
B. False Claims of Military Awards ....................
i. Rambo of the Water Board: United States v.
Alvarez
................................
MILITARY
ii.
272
273
Far From an Isolated Incident: Rick Strandlof
and Others
...........................
276
277
279
279
FREE SPEECH: JUSTIFICATIONS AND STOLEN VALOR ....
281
282
A. The Marketplace of Ideas: A Search for Truth ........
B. Self-Government: Civic Duty
....................
C. The Intrinsic Approach: PersonalAutonomy ..........
D. The Chilling Effect: Protecting False Facts ..........
283
284
285
286
CLAIMS OF MILITARY AwARDS SHOULD BE SUBJECT TO
REASONABLE REGULATION
A.
B.
............................
False Claims of Military Awards Should be
Unprotected................................
Claims of Military Awards Should be Subject to
Regulation Against Deception .
...................
CONCLUSION.................................................
287
288
290
295
* Robert J. Juge, III is a Captain in the United States Army, detailed to the Judge Advocate
General's Corps for the Funded Legal Education Program; J.D./D.C.L. Candidate, May 2012,
Paul M. Hebert Law Center, Louisiana State University; and Issue Editor of the Louisiana Law
Review. The author would like to thank Ken Murchison, John Devlin, and C. Austin Holliday
for their help developing and reviewing this Article.
267
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Rick Duncan always wanted to serve his country. His military career
started at the United States Naval Academy at Annapolis. As a Marine
Corps Captain, he served with distinction as a Nuclear Missile Launch
Officer. Serving at the Pentagon during the 9/11 attacks, he quickly
volunteered for a combat tour in Iraq. While commanding a Marine
Battalion in Fallujah, he was struck by a roadside bomb, which resulted in
permanent brain trauma and cost him his finger, forcing him to return
home. After receiving a Silver Star and a PurpleHeartfor his gallantry, he
refused to give up. If he couldn'tfight overseas, he would continue to fight
for veterans back home.
Upon his return stateside, he fought hardstartinga non-profitgroup to
help homeless vets. Not only was he a champion for veterans' rights, he was
an active politicalspeakerfor over two years, campaigningagainst the wars
in Iraq and Afghanistan and getting several politicians elected. Captain
Rick Duncan was a true American hero who should be a role model for us
all.
Unfortunately none ofhis backgroundis true, not even his name. Rick
"Strandlof'has never served a day in any branch of the military, he never
attended Annapolis, and he never won the Silver Star or the Purple Heart.
The only time he has ever served has been behind bars. Although he may
not have a Silver Star or a Purple Heart, he may have a constitutionalright
to claim that he does.1
INTRODUCTION
The United States is faced with a growing epidemic of military
impostors. 2 Individuals deceive the public by falsely claiming military
awards that are given to recognize extraordinary acts of valor and heroism. 3 Some make these claims to boost their reputations and self-esteem, while others do so to fraudulently gain access to money and other
benefits reserved for veterans.' The issue has become more prevalent
I See Mothax, Why Won't the US Attorney for CO Prosecute Stolen Valor Act Cases?, Am.
LEGION'S BURNPIr (Sept. 23, 2009), http://burnpit.us/2009/09/why-wonE2%80%99t-usattorney-co-prosecute-stolen-valor-act-cases.
2 See Steve Robinson, An Epidemic ofMilitary Imposters, P.O.W. NETWORK, http://www.
pownetwork.org/pownet.securel/An%20Epidemic%20of/o20Military/o20Impostersl.pdf.
3 For a display of recent occurrences of stolen valor, see Hall of Stolen Valor, MILITARY
TiMEs, http://militarytimes.com/projects/hallofstolenvalor/ (last visited Feb. 12, 2012).
4 Robinson, supra note 2, at 1.
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STOLEN VALOR OR FREE SPEECH?
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with American military volunteers constantly returning home after almost a decade of fighting on two fronts.'
"Americans love [heroes] and are eager to honor men and women
in uniform." 6 Regardless of political or ideological interests, most
Americans desire to respect and honor military veterans. However, only
about one percent of the population has ever served in active military
duty.7 This fact makes it difficult for the average citizen to distinguish
between who is a fraud and who is telling the truth regarding their
military service.8 The rest of the population, simply put, is "illequipped to determine where reality ends and fantasy begins."' Receiving roughly fifty tips on the subject per month, the FBI investigated
about 200 stolen valor cases in 2009.0 Most cases are reported by veterans, veterans' groups, or actual recipients of military awards, who are
more capable than the general population of knowing when they encounter an impostor."
Although it has long been a crime to wear, manufacture, or sell our
nation's badges of military honor, a sizeable loophole failed to punish
those who falsely claimed to have been awarded their medals. 12 Until
2006, if someone lied and falsely proclaimed himself a war hero, absent
actually wearing a medal, he would be immune from prosecution.' 3
Congress addressed this issue in 2006 by passing the Stolen Valor
Act, which criminalizes false claims of military service. 1 4 However, recent court decisions make it unclear whether false claims such as these
5 This Article refers to the Global War on Terror encompassing Operation New Dawn and
Operation Enduring Freedom; the former and current military conflicts in Iraq and Afghanistan,
respectively.
6 See Christian Davenport, One Man's Database Helps Uncover Cases of Falsified Valor,
POST. (May 10, 2010), http://www.lb9.uscourts.gov/webcites/10documents/Alvarez
falseValor.pdf.
7 Id.
8 Id.
9 Robinson, supra note 2, at 2.
50 Davenport, supra note 6.
11 See, e.g, id.
12 See 18 U.S.C. § 704(a) (2006); See also Stolen Valor Act of 2005, Pub. L. No. 109-437,
WASH.
§ 2,
120 Stat. 3266.
13 See Robinson, supra note 2, at 2.
14 See 18 U.S.C. § 704. Although the popular name of the statute is "The Stolen Valor Act
of 2005" it was not passed until 2006. Id. Additionally, in this Article, "false claims of valor"
will be used as shorthand to represent false claims of military awards and decorations as proscribed under 18 U.S.C. § 704(b) that are made "with knowledge that the statement was false or
with reckless disregard as to whether or not it was true." See Hustler Magazine v. Falwell, 485
U.S. 46, 56 (1988) (providing the definition of "actual malice").
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are protected by the First Amendment.15 The Supreme Court has never
fully addressed the issue of whether knowingly making false statements
is protected free speech. 16 While the First Amendment offers no protection to most types of deliberate false statements, it does offer protection
in a few limited situations.' 7
The issue invites the following question-is there a constitutional
right to lie? Is there a difference when this lie is about receiving a military award rather than a general claim about one's height, weight, or
physical appearance?'" Does it make a difference that in stolen valor
cases, the government, authorizes the awards untruthfully claimed, and
as such, the government is particularly well suited to determine the
truth of such claims?1 9 Although only a few courts have had the opportunity to evaluate the issue, it is one of growing visibility and importance.20 Recently, the Supreme Court granted a writ of certiorari in one
of the cases and could resolve the issue as early as February 2012.21
This Article analyzes the Stolen Valor Act in light of the constitutional protection of free speech and argues that false claims of valor
should not be protected by the First Amendment. Part I briefly introduces free speech doctrine, the different tiers of protected speech, and
the unprotected categories of speech. Part II discusses the Stolen Valor
Act, the military awards system, and the cases that first questioned the
constitutionality of the Act. Part III introduces the historical purpose
and justifications for free speech and explains why they do not support
protecting this type of expression. Part IV then provides two reasons
why false claims of valor should not be protected by the First Amendment. First, the government should be able to criminalize false claims of
valor to prevent harm to the military and protect individuals from fraud.
See discussion infra Part II.B.
See discussion infra Part I.B.
17 See discussion infra Part I.C.
is Recently, the Ninth Circuit Court of Appeals found there to be no difference between a
lie concerning a military award and misrepresenting one's physical characteristics on a social
networking website such as Facebook.com or March.com for First Amendment purposes. See
United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cit. 2010). See discussion infra Part II.B.i.
19 The federal government authorizes and grants such awards. There is no issue of judging
two or more competing subjective views here-there can be no ambiguity as to receiving such
an honor; it was either awarded or it was not.
20 See Alvarez, 617 F.3d 1198; see also United States v. Strandlof, 746 F. Supp. 2d 1183 (D.
Colo. 2010), rev'd, 2012 WL 247995 (10th Cit. Jan. 27, 2012).
21 In United States v. Alvarez, the Court is set to hear arguments on February 22, 2012.
United States v. Alvarez, SCOTUSBLOG (Feb. 10, 2012, 3:36 PM), http://www.scotusblog.com/
case-files/united-states-v-alvarez/.
15
16
STOLEN VALOR OR FREE SPEECH?
2012]
271
Second, the justifications that warrant recognizing limited First Amendment protections for commercial speech are equally applicable to false
claims of valor. Finally, this Article concludes that the Stolen Valor Act
is a constitutional restriction on speech.
I.
FREEDOM OF SPEECH: THE FIRST AMENDMENT
It is important to grasp a few basic principles of free speech in
order to understand its interplay with the Stolen Valor Act. The First
Amendment states, "Congress shall make no law . .. abridging the freedom of speech." 2 2 Although the meaning of this phrase seems fairly
straightforward, plain textual readings are not very helpful for guidance
on the application of the First Amendment.2 3 Throughout American
history, First Amendment jurisprudence has evolved into a complex system that limits both the state and federal governments from restricting
speech in all but a few historically unprotected areas.2 4 The United
States was envisioned as a society in which people possess absolute sovereignty and government officials function as their servants and agents.25
The First Amendment was crucial to this form of government. For a
democracy to function, sovereign individuals must be free to criticize
their government and its workings free from the fear of reprisal. 26 With
this in mind, it is important to distinguish between the different levels
of protection afforded to different types of speech.
While a literal reading of the First Amendment would seem to
prohibit the government from infringing upon any speech, it "cannot
have been, and obviously was not, intended to give immunity for every
possible use of language." 2 7 Thus, freedom of speech is not an absolute
22 U.S. CONST. amend. I.
Congress has made, and the Supreme Court has upheld, numerous restrictions on speech.
Additionally, the First Amendment only addresses Congress in its text. It was later made applicable to state governments in addition to the federal government. See Gitlow v. New York, 268
U.S. 652 (1925).
24 See discussion infra Part I.B.
25 See JEROME A. BARRON & C. THOMAS DIENES, FIRST AMENDMENT LAW IN A NUTSHELL 10 (West 3d. ed. 2004). The extent to which this system is effective in the United States
is far beyond the scope of this Article.
26 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964). Although this development
may seem marred by the Alien and Sedition Acts, that miscarriage of justice was short-lived. Id.
at 276 ("Although the Sedition Act was never tested in this Court, the attack upon its validity
has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of
Congress on the ground that it was unconstitutional.").
27 Frohwerk v. United States, 249 U.S. 204, 206 (1919) (citing Robertson v. Baldwin, 165
U.S. 275, 281 (1897)).
23
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right, and some types of speech are subject to reasonable regulation.2 8
There appears to be a "rough hierarchy" of various types of speech, with
different categories of speech afforded different levels of protection.2 9
Core political speech is at the zenith and receives absolute protection,
commercial speech is somewhere in the middle. Unprotected speech,
such as obscenity and fighting words, is at the bottom.3 0
A. Politicaland Commercial Speech: Valued and Protected
The most important type of speech for First Amendment purposes
is core political speech.3 This involves communication about political
ideas or political issues and enjoys the highest form of constitutional
protection.3 2 Speech of this type includes circulating petitions, posting
signs, and making speeches about society, politics, or the government. 3 3
The individual "freedom to discuss public affairs and officials is unquestionably . . . the kind of speech the FirstAmendment was primarily designed to [protect.]" 34 Because the people are sovereign in a democracy,
this form of speech is vital to a functional democratic government.35
Regulations concerning core political speech, therefore, are subject to
the strictest judicial scrutiny.3 6 To pass strict scrutiny, the regulation
must be narrowly tailored to a compelling governmental interest.37 Although this is not an insurmountable hurdle, "strict scrutiny leaves few
survivors."3
The second type of speech that receives First Amendment protection is commercial speech. This type of speech, which is motivated by
profit, receives a level of intermediate scrutiny.39 Although the Supreme
Court has retreated from the view that the government has complete
28 See
id.
29
See R.A.V. v. St. Paul, 505 U.S. 377, 422 (1992) (Stevens,
30
Id
Id
Id
31
32
J.,
concurring).
33 See, e.g., Meyer v. Grant, 486 U.S. 1414, 421-22 (1988) ("[The circulation of a petition
involves the type of interactive communication concerning political change that is appropriately
described as 'core political speech.'").
34 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 296-97 (1964) (Black, J., concurring) (empha-
sis in original).
35 Id. at 273 (majority opinion).
36 Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 186 (1999).
37
Id
38
Los Angeles v. Alameda Books, 535 U.S. 425, 455 (2002) (Souter, J., dissenting).
See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748 (1976).
39
STOLEN VALOR OR FREE SPEECH?
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273
control to suppress commercial speech, it has placed significant limitations on such speech because it presents an inherent risk of fraud. 40
Allowing some constitutional protection, however, supports both the economic interests of the commercial speaker and the interests of the consumer in the free flow of market information.4 1 Our free enterprise
system depends upon a reliable and accurate flow so that consumers can
make informed economic decisions.42 The most important characteristic of commercial speech is the government's ability to ban deceptive or
misleading speech entirely.
There are two main reasons why commercial speech is subject to
governmental regulation. First, commercial speakers have extensive
knowledge of their products and are better situated than anyone else to
determine the accuracy of their message.44 Second, commercial speech
is less susceptible to the chilling effect that would result from governmental regulation of some other types of speech.4 5 When these justifications are combined with the government's substantial interest in
protecting individuals from fraud, it is apparent why commercial speech
receives more limited constitutional protection.
B.
Exceptions: Unprotected Categories of Speech
While political speech and commercial speech are protected, other
types fall entirely outside First Amendment protection. The Supreme
Court recognizes certain "well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem." 6 Historically unprotected areas include: obscenity, libel, defamation, fraud, incitement, and
speech integral to criminal conduct.4 7 The Supreme Court has described such speech as having "no essential part of any exposition of
40 See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 562-564
(1980) (There "can be no constitutional objection to the suppression of commercial messages
that do not accurately inform the public about lawful activity.").
41 See, e.g., Va. State Bd., 425 U.S. 748.
42 Id. at 781 (Burger, J., concurring).
does not prohibit the State
43 Id. at 772 (majority opinion) ("The First Amendment ...
from insuring that the stream of commercial information flow cleanly as well as freely.").
4 Cent. Hudson Gas, 447 U.S. at 564.
Va. State Bd., 425 U.S. at 772 n.2 4 ("Since advertising is the sine qua non of commercial
profits, there is little likelihood of its being chilled by proper regulation and forgone entirely.").
6 United States v. Stevens, 130 S. Ct. 1577, 1584 (2010) (quoting Chaplinsky v. New
45
Hampshire, 315 U.S. 568, 571-572 (1942)).
47 Id.
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ideas."" This unprotected speech is of "such slight social value as a step
to truth" that any benefits of protecting it are far outweighed by the
consequences. 9 Occupying a First Amendment free-zone, such speech
does not qualify for the heightened protection given to other more valuable types of speech. 0
Within these unprotected categories, the government is free to regulate and even prohibit speech. 5 ' Although there are only a few categories of speech that fit into this historical First Amendment free-zone, the
Supreme Court has been occasionally willing to expand these areas. For
example, fighting words, child pornography, and true threats are now
unprotected.5 2 The Court has also ruled that false light invasion of privacy,53 intentional infliction of emotional distress,5 4 perjury,5 5 and false
statements to federal officials are unprotected. ' While fairly small, the
list above is not exhaustive and certain types of speech, though presently
unidentified, may still be found outside First Amendment protection.57
49
See Beauharnais v. Illinois, 343 U.S. 250, 256-257 (1952).
Stevens, 130 S.Ct. at 1585.
50
Id
48
The government can prohibit unprotected speech as long as it does not prohibit it because
it is based on unpopular ideas. See R.A.V. v. St. Paul, 505 U.S. 377 (1992) (holding that a
prohibition on all fighting words would be legitimate, though a prohibition on fighting words
based only upon a certain characteristic such as race, gender, or religion was unconstitutional).
52 See Charles W. Rhodes, The HistoricalApproach to Unprotected Speech and the Quantitative Analysis of Overbreadth in United States v. Stevens, 2010 EMERGING ISSUES 5227 (2010).
53 See Time, Inc. v. Hill, 385 U.S. 374, 388 (1967). Additionally:
False light invasion of privacy occurs when information is published about a person
that is false or places the person in afalse light, is highly offensive to a reasonable person,
and is published with knowledge or in reckless disregardof whether the information was
false or would place the person in a false light.
False light-Misappropriation-Rightof publicity, REPORTERS COMM. FOR FREEDOM OF THE
PREss, http://www.rcfp.org/first-amendment-handbook/false-light-misappropriation-right-publicity (last visited Feb. 10, 2012) (emphasis added).
54 See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988).
55 See Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961).
56 See Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, 690 F.2d 1240 (9th Cit.
1982), overruled on other grounds by Mayle v. Felix, 545 U.S. 644 (2005).
57 See United States v. Stevens, 130 S. Ct. 1577, 1586 (2010) ("Maybe there are some
categories of speech that have been historically unprotected, but have not yet been specifically
identified or discussed as such in our case law.").
51
STOLEN VALOR OR FREE SPEECH?
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C.
275
New, Previously Unidentified but UnprotectedAreas: United
States v. Stevens
In United States v. Stevens, the Supreme Court explained the process whereby new categories of unprotected speech could be recognized.5 ' The Court scrutinized a statute that criminalized depictions of
animal cruelty.59 Although the statute criminalized a wide array of conduct, it was intended to prevent the interstate sale of "crush videos"
depicting animal cruelty.6 0 In Stevens, however, the films in question
involved depictions of dog fighting and were not technically crush
videos.6 ' The government claimed that depictions of animal cruelty
should be treated as unprotected speech.6 2 It cited a long line of Supreme Court jurisprudence indicating the Court should use a "balancing test" and argued that the value of such speech was clearly
outweighed by its societal cost.63
While acknowledging that the government's view did not "emerge
from a vacuum," the Court rejected the government's argument. New
categories of unprotected speech could not be created on the basis of an
"ad hoc balancing of relative costs and benefits."65 Instead, the Court
held that a previously unidentified category of speech may only be unprotected if it can be shown that the speech at issue constitutes a "previously recognized, long-established category of unprotected speech." 6 6 In
Stevens, the Court declined to carve out a new unprotected category for
animal cruelty.67 Even though there was a historical prohibition of actual animal cruelty, there was no historical prohibition of depictions of
animal cruelty.6 8
58
Id. at 1580.
59 Id. at 1583.
6o Id. "[Sluch videos feature the intentional torture and killing of helpless animals . . . .
Crush videos often depict women slowly crushing animals to death . . . . [to] appeal to persons
with a very specific sexual fetish . . . ." Id. (internal citations omitted).
61 Id. This is an excellent example of just how broad the statute actually was-while intended to criminalize the "crush videos," depictions of animal fighting were swept into the
statute. Id
62 Id. at 1585.
65
Id
Id
Id
66
Id
67
Ida
68
Id at 1585.
63
64
at 1586.
CARDOZO PUB. LAW POLICY & ETHICS J
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The Court further found that the statute was not narrowly-tailored. 69 Although it targeted depictions of animal cruelty such as crush
videos, it could also apply to videos of hunting and slaughterhouse activities that were lawful in many states. 7 0 Regulations of these types of
activities, as well as the definition of "animal cruelty," varied from state
to state, making the legislation overly broad and presenting serious questions as to what conduct was actually illegal.71 The Court, therefore,
held the statute was an unconstitutional restriction of speech. 7 2
Similarly, although there has been a longstanding history of punishing those who falsely wear military awards, the prohibition against
claiming to have been honored with such an award is rather new.74 It is
presently unclear if the Supreme Court will recognize a First Amendment exception for false claims of valor.
II.
ACT: A TOOL
MILITARY AWARDS
THE STOLEN VALOR
FOR PROTECTING
Why does the United States military grant awards and decorations
in the first place? Napoleon once noted that "[a] soldier will fight long
and hard for a bit of colored ribbon." 75 Awarding military medals and
decorations has been customary since time immemorial. Military
awards are given in recognition of "heroism, meritorious achievement,
or meritorious service."' These decorations allow military members or
veterans to display the achievements and highlights of their careers to
others. According to the United States Army, the purpose of granting
these awards is to recognize excellence, to motivate soldiers and civilians
to perform, and to "foster mission accomplishment."7 8
69 Id. at 1588.
70 Id. at 1589-90.
71 Id
72 Id. at 1592.
73 This has been unlawful since 1923 in the United States. See Act of Feb. 24, 1923, Pub. L.
No. 67-438, 42 Stat. 1286.
74 Criminalizing claims was only accomplished with the 2006 amendments to the Stolen
ValorAct. See 18 U.S.C. § 704(b) (2006).
75 Napoleon on War, NAPOLEONIC GUIDE, http://www.napoleonguide.com/maximwar.htm
(last visited Feb. 12, 2012).
76 DEPARTMENT OF THE ARMY, ARMY REGULATION
600-8-22:
MILITARY
AwARDs 36
(2007).
77 See U.S. Army Symbols & Insignia, ARMY.MIL, http://www.army.millsymbols/ (last visited
Feb. 12, 2012).
78 ARMY REGULATION 600-8-22, supra note 76, at 1.
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STOLEN VALOR OR FREE SPEECH?
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The government grants numerous military awards and decorations
in order to recognize individual achievement. For example, the Congressional Medal of Honor is the highest military award our nation offers. 79 The President grants this award, in the name of Congress, to a
military member who "distinguishes himself or herself conspicuously by
gallantry and intrepidity at the risk of his or her life above and beyond
the call of duty while engaged in [combat].""o Requiring uncommon
valor and heroism, it has only been awarded to 3458 recipients-of
whom only eighty-three are still alive."' While the Medal of Honor is
an extraordinarily rare award, the military gives many other awards for
particular achievements or types of service. The Purple Heart, for example, is awarded to those who are wounded by an enemy in combat.8 2 To
recognize those who have made the ultimate sacrifice, the Purple Heart
is also posthumously awarded to those killed in combat. 3 Others, such
as the Parachutist Badge, Ranger Tab, or SEAL Trident, are given in
recognition of completing special military training." Different awards
and decorations are given for a myriad of other reasons-from being an
expert marksman to being a military pilot. 5
A.
The Stolen Valor Act
In order to protect the reputation and meaning of these awards and
decorations, Congress has made it illegal to wear, manufacture, or sell an
7
Id. at 39.
80 Id
81 Archive Statistics, CONG. MEDAL OF HONOR Soc'Y, http://www.cmohs.org/medal-statistics.php (last visited Feb. 12, 2012). Since World War II, more than half of the Medals of
Honor granted have been awarded posthumously. This illustrates how rarely Medals of Honor
are actually awarded. See The Living Recipients ofthe Medal ofHonor, HOME OF HEROES, http://
www.homeofheroes.com/hallofheroes/1stfloor/wall/21iving.html (last visited Feb. 10, 2012).
82 See Purple Heart, INsT. OF HERALDRY, http://www.tioh.hqda.pentagon.mil/Awards/purpleheart.aspx (last visited Feb. 10, 2012).
8 3 Id
84 See Parachutist Badge, INST. OF HERALDRY, http://www.tioh.hqda.pentagon.mil/UniformedServices/Badges/parachutists.aspx (last visited Feb. 10, 2012). See also Ranger Tab, INsT.
OF HERALDRY, http://www.tioh.hqda.pentagon.mil/UniformedServices/Tabs/Ranger Tab.aspx
(last visited Feb. 10, 2012); Special Warfare Insignia, INST. OF HERALDRY, http://www.tioh.
hqda.pentagon.mil/UniformedServices/Tabs/Special-ForcesTab.aspx
(last visited Feb. 10,
2012).
85 See Weapons Qualifications, INST. OF HERALDRY, http://www.tioh.hqda.pentagon.mill
UniformedServices/Badges/weapons.aspx (last visited Feb. 10, 2012). See also United States Aviator Badge, INST. OF HERALDRY, http://www.tioh.hqda.pentagon.mil/UniformedServices/
Badges/aviator.aspx (last visited Feb. 10, 2012).
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unauthorized military award since 1923.86 While earlier versions of the
Act prohibited individuals from wearing military awards when not authorized, there was a sizeable loophole.17 In order to be convicted, a
person claiming to have received an award had to actually wear one to
violate the statute.8 8 A person could legally claim to have earned a military award as long as he did not actually wear it.8 9 Consequently, many
who falsely claimed to have earned such awards but refrained from wearing them went unpunished.9 0
To address this deficiency, Congress enacted the Stolen Valor Act
in 2006.91 In addition to the prohibitions on wearing, selling, and
transferring military awards, the new law extended criminal liability to
false claims about such awards. 2 According to the Act, anyone who
falsely represents himself, in speech or writing, to be the recipient of a
military award or decoration is subject to a fine and six months imprisonment.93 In addition to criminalizing verbal or written claims, the
Stolen Valor Act also raised the penalties to a maximum of one year
imprisonment if the claim involves the Congressional Medal of Honor,
the Distinguished Service Cross, the Air Force Cross, the Navy Cross, or
See Act of Feb. 24, 1923, Pub. L. No. 67-438, 42 Stat. 1286.
The original provisions of the Stolen Valor Act provided:
86
87
In general. Whoever knowingly wears, purchases, attempts to purchase, solicits for
purchase, mails, ships, imports, exports, produces blank certificates of receipt for,
manufactures, sells, attempts to sell, advertises for sale, trades, barters, or exchanges
for anything of value any decoration or medal authorized by Congress for the armed
forces of the United States, or any of the service medals or badges awarded to the
members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more
than six months, or both.
18 U.S.C. § 704(a) (2006).
88 Id
89 See Robinson, supra note 2, at 2.
90 See id
91 See Stolen Valor Act of 2005, Pub. L. No. 109-437, § 2, 120 Stat. 3266.
18 U.S.C. § 704(b).
92
The added provision to the Act provides:
False claims about receipt of military decorations or medals. Whoever falsely represents
himself or herself, verbally or in writing,to have been awardedany 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.
93
Id. (emphasis added).
STOLEN VALOR OR FREE SPEECH?
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the Purple Heart.94 In passing the new law, Congress stated in its findings that fraudulent claims damaged the reputation and meaning of the
awards.95 Further, recognizing the shortcomings of the previous statute,
Congress found that more action was necessary, as law enforcement had
only a "limited ability to prosecute fraudulent claims."96 With the new
law, the government was finally given the tools necessary to combat the
growing number of military impostors.97
B.
False Claims of Military Awards
Why would someone falsely claim to have received a military
award? Is it to gain favor during a job interview, or perhaps to bolster
one's credibility in order to influence a local election? Is it an actual
veteran embellishing a mediocre or substandard military career?" Or is
it simply a barroom braggart trying to impress their friends? Some
make false claims to gain access to unearned respect and recognition.99
Others do it to gain favor and esteem within their community in attempt to perpetrate more serious crimes.10 0 Who would steal the valor
of those who serve the nation in uniform?10 1
i.
Rambo of the Water Board: United States v. Alvarez
The first case to consider the validity of the Stolen Valor Act was
the Court of Appeals for the Ninth Circuit in United States v. Alvarez.10 2
Xavier Alvarez won an election to a Water District Board of Directors in
94 Id. § 704(c)-(d).
95 Stolen Valor Act of 2005, Pub. L. No. 109-437,
96 Id.
§ 2,
120 Stat. 3266.
97 See Robinson, supra note 2, at 2.
98 See id.at 1.
99
See Davenport, supra note 6.
For example, Senator Conrad said during discussions of the bill:
[T]here are some individuals who diminish the accomplishments of [military] award
recipients by using medals they have not earned. These imposters use fake medalsor claim to have medals that they have not earned-to gain credibility in their communities. These fraudulent acts can often lead to the perpetration of very serious
crimes.
151 CONG. REc. S12,684-01, S12,688 (daily ed. Nov. 10, 2005) (statement of Sen. Kent
Conrad).
101 Wayde Minami, BACK TALK Don't Just Slap the Wrists of Bogus War Heroes - Hold
Them Responsible, ARMY TIMES (Oct. 10, 2010), http://www.armytimes.com/legacy/new/0100
ARMYPAPER-436124.php.
102 United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010).
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Claremont, California.1 o3 When he introduced himself after the election, he stated that, "I'm a retired marine of 25 years. I retired back in
the year 2001. Back in 1987, I was awarded the Congressional Medal of
Honor. I got wounded many times by the same guy. I'm still
around.""o By captivating his audience with these stories, he quickly
earned respect and the nickname "Rambo of the water board."' 5 To his
constituents and coworkers' surprise, however, none of his claims were
true.0 6 Not only had he never been awarded the Medal of Honor, but
he had never served in any branch of the military.10 7 After his ploy was
discovered, he pled guilty to violating the Stolen Valor Act while reserving a right to appeal the Act's constitutionality.'
The main issue before the Ninth Circuit was whether section
704(b) of the Stolen Valor Act, which prohibits false claims, was an
unconstitutional infringement on free speech.' 0 9 A divided three-judge
panel held that false claims of military awards did not fit into a previFurther, it found
ously identified unprotected category of speech.'
that Alvarez's speech failed to "pose any immediate and irreparable
harm" and that any harm caused could be "remedied by more
speech.""' Because the Act did not prohibit speech that fit into any of
the previous unprotected categories, the court applied strict scrutiny and
declared the Act unconstitutional."12
Judge Bybee in dissent took an opposite position. He argued "that
'false statements of fact' are generally unprotected and that .
.
. know-
ingly false statements of fact are always unprotected," and concluded the
Act was constitutional.' '3 The key issue for the majority and the dissent
was which test to apply in order to determine whether false statements
of fact are protected. While the majority of the court presumptively saw
a duty to protect all false claims unless historically unprotected, the dis103
Id. at 1200.
104 Id at 1201.
105
See Joe Mozingo, Southland Official's War Story was Fiction, L.A. TIMFS (Oct. 20, 2007),
http://articles.latimes.com/2007/oct/20/local/me-medal2O.
106 Id.
107
Alvarez, 617 F.3d at 1201.
108 Id.
109 Id. at 1200.
110 Id. at 1215.
''
Id.
112 Id. at 1217.
113 Id. at 1224 (Bybee,
J., dissenting) (emphasis in original). According to Judge Bybee,
satirical and theatrical false statements are protected. Id.
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STOLEN VALOR OR FREE SPEECH?
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sent argued false statements of fact are presumptively unprotected unless
there is some historical protection, such as a desire to prevent a chilling
effect on otherwise valuable speech.1 14
ii.
Far From an Isolated Incident: Rick Strandlof and Others
A similar situation arose in United States v. Strandlof where the
United States District Court for Colorado had an opportunity to examine the Stolen Valor Act."I Rick Strandlof posed as a former Marine
Captain while actively supporting an anti-war movement in Colorado.1 1 6 Strandlof claimed he was awarded the Silver Star and the Purple Heart for injuries sustained while deployed in Fallujah, Iraq."' 7 He
used that story to gain credibility while campaigning for candidates in
local elections-elections that the candidates supported by Strandlof ultimately won."' Moreover, he founded the Colorado Veterans Alliance,
a group that solicited funds for supposed veterans' projects.'" However, none of his statements were true-he had actually never served in
any branch of the military, nor had he earned the Silver Star or the
Purple Heart. 2 0 Upon exposure of his lie, he was charged with violating the Stolen Valor Act. 1 2 ' Echoing much of the reasoning in Alvarez,
the district court also found that the Act was an unconstitutional limitation on free speech. 12 2
Through Alvarez and Strandlof the Ninth Circuit and the District
of Colorado, respectively, have found a constitutionally protected right
to lie about the receipt of military awards, though the government has
yet to concede the point.12 3 Although the Ninth Circuit denied the
114
Id
United States v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010), rev'd, 2012 WIL
247995 (10th Cit. Jan. 27, 2012).
116 See Mothax, supra note 1.
117 See Kevin Simpson, MarineImpostor's Deception Began Years Ago, GAZETTE (June 6, 2009,
7:09 PM), http://www.gazette.com/articles/strandlof-55969-story-deception.html.
118 See Anderson Cooper, Veteran Imposter Speaks out on 360: Interview with Rick Strandlof
YouTUBE.COM, http://www.youtube.com/watch?v=ID7a9oj-Go8 (last visited Feb. 10, 2012).
119 Felisa Cardona, Lies from "War Vet"Are ProtectedSpeech, Civil Liberties Group Says, DENVER POST (Jan. 20, 2010, 8:50:18 AM), http://www.denverpost.com/ci_14226551.
120 See David Kravers, Feds Ask Supreme Courtto Validate Stolen Valor Act, WIRED.COM (Aug.
22, 2011, 4:53 PM), http://www.wired.com/threatlevel/2011/08/stolen-valor-act-2/.
121 Id
122 United States v. Strandlof, 746 F. Supp. 2d 1183, 1192 (D. Colo. 2010), rev'd, 2012 WL
247995 (10th Cit. Jan. 27, 2012).
123 See United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010); Strandlof 746 F.
Supp. 2d at 1192.
115
282
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government's request for a rehearing en banc in Alvarez, the Supreme
Court granted a writ of certiorari and will hear arguments in February
2012.124 The government also successfully appealed Strandlof to the
Court of Appeals for the Tenth Circuit.125 In a decision on January 27,
2012, the Tenth Circuit disagreed with the lower court and determined
that the Act was a constitutional restriction of speech.1 26 Similarly, at
least one other district court judge has disagreed with the Alvarez court
and upheld the Act.1 2 7
As the number of those who have fraudulently claimed military
valor continues to grow, certainty is needed regarding the constitutionality of the Stolen Valor Act. Those who have violated the Act range
from convicted criminals to active duty soldiers who have lawfully
earned some military awards, but have claimed others they did not actually receive.128 Historians, a sitting judge, a former congressman, and
even a mafia hit man have all joined the "Hall of Stolen Valor."1 2 9 Although only a few courts have had the opportunity to evaluate the Act's
criminalization of false claims, the circuits are split and the issue is one
of growing importance and visibility.
III.
FREE SPEECH: JUSTIFICATIONS AND STOLEN VALOR
While free speech is generally valuable for both individuals and
society as a whole, the justifications for the protection of speech do not
apply to the misrepresentations addressed by the Stolen Valor Act. The
constitutional freedom of speech serves two very distinct purposes: one
utilitarian and one intrinsic.130 The utilitarian view is based on the benefits and functions that free speech provides to society as a whole, such
as the marketplace of ideas and the self-government function of a demo124 See United States v. Alvarez, SCOTUSBLOG (Jan. 4, 2012, 10:31:00 AM), http://www.
scotusblog.com/case-files/united-states-v-alvarez/.
125 See John Ingold, FederalAppeals Court HearsFake Veteran Case, DENVER POST (May 12,
2011, 11:57:22 AM), http://www.denverpost.com/ci_18048724.
126 United States v. Strandlof, 2012 WL 247995, at *16 (10th Cit. Jan. 27, 2012).
127 United States v. Robbins, 759 F. Supp. 2d 815 (W.D. Va. 2011); see also Daniel Hudson,
Federalfudge in Virginia Upholds Stolen Valor Act, FIRSTAMENDMENTCOALITION.ORG (Jan. 6,
2011), http://www.firstamendmentcoalition.org/2011/01/federal-judge-in-virginia-upholds-stolen-valor-act/.
128 See Minami, supra note 101.
129 See id; see also Hall of Stolen Valor, supra note 3.
130 See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) ("Those
who won our independence . . . valued liberty both as an end and as a means.").
STOLEN VALOR OR FREE SPEECH?
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283
cratic society.' 3 ' The intrinsic view, alternatively, focuses on an individual's rights to personal autonomy and control over his own choices. 1 3 2
A.
The Marketplace of Ideas: A Search for Truth
The most favored utilitarian justification for free speech is commonly referred to as the competitive marketplace of ideas.' 33 Justice
Holmes once said that "the ultimate good desired is better reached by
free trade in ideas [and] the best test of truth is the power of the thought
to get itself accepted in the competition of the market."1 34 Society
needs a free flow of information relating to political ideas to sift through
competing facts and arguments in order to make rational decisions. 3 5
In normative disagreements over issues such as morality, religion,
and politics, ideas can be highly subjective, and in American society, an
extraordinarily rich and diverse community, these conversations and debates could go on endlessly-with no right or wrong answer.' 3 1 Speech,
therefore, is protected for its utility as a truth-finding apparatus.'
The
difficulty of determining the objective truth of certain ideas makes it
preferable for the people, rather than the government, to determine
what is true and what is false.13 ' The marketplace, rather than the government, is viewed as the better sorting ground. 39
While the marketplace provides strong support for protecting
speech in general, it provides little justification for protecting false
claims of valor which do not contribute to the marketplace in any
meaningful way.' 4 0 A claim of a military award is easily verifiable by the
government through the maintenance of records and is not subject to
131 See discussions infra Parts 1ILA-B.
132 See Edwin Baker, Scope of the FirstAmendment Freedom of Speech, 25 U.C.L.A. L. REV.
964, 998 (1978).
133 Hustler Magazine v. Falwell, 485 U.S. 46, 50-51 (1988).
134 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
135 See Hustler Magazine, 485 U.S. at 50-51 (Of "fundamental importance [is] the free flow
of ideas and opinions on matters of public interest and concern.").
136 See Steven G. Gey, Papersfom the FirstAmendment Discussion Group: The First Amendment and the Dissemination of Socially Worthless Untruths, 36 FLA. ST. U. L. REv. 1, 8 (2008).
137
Id.
J., dissenting).
According to the Supreme Court, "debate on public issues should be uninhibited, robust,
and wide-open." N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
140 See Gey, supra note 136, at 8-9.
138 See Abrams, 250 U.S. at 630 (Holmes,
139
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debate."4 ' Because of this, the rationale for protecting speech based on
its contribution to "uninhibited, robust, and wide-open" debate about
public issues is without merit when applied to stolen valor cases. From
this perspective, restrictions on false claims of military valor are not only
permissible but necessary and expedient. Because false claims of valor
are "particularly valueless" and interfere with the truth-seeking function
of the marketplace, they should not be protected by the First
Amendment.142
B. Self-Government: Civic Duty
The second utilitarian model of free speech describes it as an essential component of self-government. 4 3 If citizens in a democratic society
are to perform their duty and exercise sovereignty, they must be able to
criticize the government and be privy to information concerning its
workings.' 4 4 Justice Brennan described the true meaning of the First
Amendment as the people's right to criticize their government without
If a government could punish speakers for seditious
fear of reprisal."
libel, speakers would likely be silenced on issues of political change for
fear of imprisonment.14 6 This concept values two particular kinds of
speech. The first is speech about matters of public concern, such as that
concerning public policies, officials, or both. 47 The second is speech
that contributes to the individual's capacity to engage in meaningful
self-government-enabling the individual to participate in a democratic
society."' Examples of this "enabling speech" would be speech related
to education, philosophy, social sciences, literature, and the arts. These
types of speech often enable individuals to become better participants in
141 Id. at 8 ("The marketplace of ideas justification for free speech provides a much weaker
footing for protecting expression that can be readily disproved [through traditional means] than
it does for normative advocacy.").
142 See Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988) ("False statements of fact are
particularly valueless; they interfere with the truth-seeking function of the marketplace of ideas
143
See ALEXANDER
MEIKLEJOHN, POLITICAL FREEDOM: THE CONSTITUTIONAL POWERS OF
THE PEOPLE 8 (Harper & Brothers ed., 1960).
144
Id
145 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).
146
See, e.g., MEIKLEJOHN, supra note 143.
147 See id. at 79.
148 See id. at 12.
STOLEN VALOR OR FREE SPEECH?
2012]
285
self-government. 149 They also enable citizens to participate in the effective and rational administration of democratic government.o5 1
This justification for free speech also lends little support to false
claims of valor. False claims of valor do not implicate any self-government concerns. First, the government is not acting to suppress any type
of unpopular speech or ideas. Without favoring any particular side of
any public debate, the prohibition evenhandedly limits any party from
falsely claiming military awards."' Second, a false claim of valor has
nothing to do with any type of social or political change-it is simply a
statement made for one's own benefit intended to deceive the general
public about his relationship with the government. False claims of valor
do not contribute to public issues or the individual capacity to engage in
public issues. Because there is "no realistic possibility that the official
suppression of ideas is afoot," the self-government justification for free
speech does not support protecting false claims of valor.152
C.
The Intrinsic Approach: PersonalAutonomy
While the above rationales for free speech are based on social utility, free speech is also a valuable right in and of itself as an intrinsic
component of an individual's autonomy.' 5 3 Each individual should be
left to make his or her own choices free from coercion. 5 4 The Supreme
Court normally prohibits content-based speech regulation because of a
fear of the arbitrary suppression of unpopular ideas.' 55 For most types
of speech, giving the government the power to decide what is fact and
opinion seems repugnant to notions of individual freedom. Although
the ultimate goal may be the separation of what is right from what is
wrong, most distrust the government to do the sorting-they would
rather be allowed to make their own decisions.' 5 1
149 Id. at 127.
150 See Gey, supra note 136, at 10.
151 See R.A.V. v. St. Paul, 505 U.S. 377, 435 (1992) (Stevens, J., concurring).
152 In R.A. V v. St. Paul, the Supreme Court stated that there is a more general exception that
may make speech unprotected if it "does not threaten censorship of ideas." Id. at 393 (majority
opinion).
153 See Baker, supra note 132, at 966.
154 Id.
155 See R.A. V., 505 U.S. at 382 (majority opinion).
156 See Jonathan C. Varat, Melville B. Nimmer Memorial Lecture: Deception and the First
Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. REv. 1107,
1111 (2006).
286
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However, military awards involve no "sorting" of ideas; the government is simply preventing others from muddying the water with false
and deceptive claims. Here, an objective, determinable fact is the subject of the dispute: the government gave you an award, or it did not.
Consequently, a respect for personal autonomy actually bolsters the justification for the Stolen Valor Act. Speech should be protected because
of the way it "fosters individual self-realization and self-determination
without improperly interfering with the legitimate claim of others."15 7
False claims of valor interfere with the autonomy of others by deceiving
the listener-thereby interfering with their capacity for reasoned
judgment.'
This distinction is important when trying to ascertain the type of
harm caused by deceptive false statements of fact, particularly those surrounding military awards.' 59 Those who employ deception interfere
with the personal autonomy of others because they affect a listener's
capacity for informed decision-making free from external controls.'
What is the difference between a government or a third person telling
another what truth to believe? 6 ' If the former is prohibited based on
autonomy, ought not the latter? Here, rather than interjecting its own
will into a particular subject and disrupting individual autonomy, the
government is attempting to protect its citizens from the deceptive practices of others. Because each individual should have the right to make
his or her own choices without outside interference, the Act furthers this
end by preventing deception.
D.
The Chilling Effect: Protecting False Facts
While false statements are particularly valueless and not worthy of
constitutional protection, we have to protect some false speech in order
to safeguard other valuable speech that matters. 1 62 The protection of
otherwise valueless speech avoids what is referred to as the chilling ef157 See Baker, supra note 132, at 966 (emphasis added).
158 See Varat, supra note 156, at 1112.
159 See id. at 1114 ("[T]he First Amendment's protection against government efforts to prevent persuasion rests on respect for people's autonomy. Lies disrespect autonomy so fundamentally that they can lay no claim to that protection.").
160 Id
161 This is also interesting because in stolen valor cases, it is a person claiming to be a former
federal employee and award recipient (in effect, someone "endorsed" by the government).
162 See Gertz v. Welch, 418 U.S. 323, 341 (1974) ("[W]e protect some falsehood in order to
protect speech that matters.").
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STOLEN VALOR OR FREE SPEECH?
287
fect.163 Although a lie is "not worthy of constitutional protection, it is
nevertheless inevitable in free debate."16 4 Chilling is the "intolerable
self-censorship" that would develop from a rule that punishes error.165
A speaker who might otherwise participate in free debate would be induced to cautious silence by the fear that he might misspeak and be
subject to prosecution or liability.
The Stolen Valor Act, however, does not have a chilling effect on
speech. The Supreme Court has recognized that a false statement has
"never been protected for its own sake."1 6 6 While negligent false statements are protected so that we do not deter otherwise valuable speech,
calculated falsehoods do not pose the same threat. Here, the only types
of speech that could be deterred are more intentional false claims of
valor. Affording this type of speech presumptive protection "for its own
sake" fails to recognize the distinction between negligent misstatements
and calculated falsehoods. Negligent misstatements are protected because, quite simply, people make mistakes. Calculated falsehoods on
the other hand do not receive any First Amendment protection. 1 7
Finally, unlike ideas and opinions, the truth of which may be difficult to ascertain, a false claim of military valor is a statement of fact the
truth of which should be known to the speaker.' 6 8 Whether or not an
individual has received a military award as authorized by Congress is a
fact of which that individual can-quite simply-be certain. Even if a
person makes a reasonable mistake and is unsure if he received an award,
no one is better situated than the government to determine the truth for
that person.
IV.
CLAIMS OF MILITARY AwARDs SHOULD BE SUBJECT TO
REASONABLE REGULATION
There is a longstanding tradition of punishing most intentionally
false misrepresentations. This tradition strengthens the position that
false claims of valor should be unprotected speech. In Stevens, the Su163 Id
164 Id.
165 Id at 340.
166 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976).
167 Garrison v. Louisiana, 379 U.S. 64, 75 (1964) ("[T]he knowingly false statement and the
false statement made with reckless disregard of the truth, do not enjoy constitutional
protection.").
168 This assumes that there is no mental infirmity or mistake; in those cases an "actual malice" requirement would sufficiently protect the speaker.
288
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preme Court ruled that new unprotected categories of speech could only
be declared if there was a longstanding historical tradition of not protecting that type of speech.169 While no First Amendment exception
has been recognized for knowingly making false statements of fact, the
Court has been clear that some kinds of speech may be restricted even
though they have not previously been classified as exceptions.o7 0
A. False Claims of Military Awards Should be Unprotected
The proper test for determining if speech is unprotected for purposes of the First Amendment is whether or not that speech has been
historically unprotected.' 7 ' False statements are not protected for their
own sake,1 72 and deliberate falsity only appears to be protected in political debate, the arts, and academia-not in other areas where it tends to
cause the most harm. 7 3 Protected false statements serve the marketplace of ideas by allowing a rich and robust debate on public issues.' 7 1
In contrast, other false statements that cause harm, such as defamation,' 7 1 intentional infliction of emotional distress,' 7 6 false statements
made to a government official,' 7 7 and perjury,7 7 have all been consistently denied First Amendment protection. 7 9
Unprotected false factual statements share one central characteristic: they have the potential to cause harm. Within this category of
harmful speech, two types are readily apparent: speech that causes harm
to individuals and speech that causes harm to the government.
United States v. Stevens, 130 S. Ct. 1577, 1586 (2010).
Id. (There may be "some categories of speech that have been historically unprotected, but
have not yet been specifically identified or discussed as such.").
171 Id
172 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976)
("Untruthful speech, commercial or otherwise, has never been protected for its own sake.").
173 See Eugene Volokh, Amicus Curiae Brief Boundaries of the FirstAmendment's "FalseStatements of Fact"Exception, 6 STAN. J. C.R. & C.L. 343 (20 10).
14
See MEIKLEJOHN, supra note 143, at 79.
'75 See Beauharnais v. Illinois, 343 U.S. 250, 254-55 (1952).
176 See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988).
'77 See 18 U.S.C. § 1001 (2006).
178 See id. § 1621; see also United States v. Norris, 300 U.S. 564, 574 (1937); United States
v. Masters, 484 F.2d 1251, 1254 (10th Cir. 1973) ("[The perjury] stature [is] narrowly drawn
to punish specific conduct that infringes a substantial government interest in protecting the
judicial process.").
179 See Volokh, supra note 173 (explaining the only areas where knowingly false statements
are not protected are statements about the government, and perhaps, about "broad historical,
scientific, or current-event controversies").
169
170
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STOLEN VALOR OR FREE SPEECH?
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Some speech is unprotected because it has the potential to cause
individual harm. Defamation, such as libel and slander, harms the reputation of an individual person.'8 o Intentional infliction of emotional
distress similarly harms the emotional well-being of another.18 1 In these
situations, the harm is easily determined because it is often centered on
an individual. For these instances, we require that an individual suffer
actual harm before we impose liability on the speaker.
Other speech, however, is unprotected because of its potential to
cause harm to the government. Two examples of this speech are perjury
and false statements to government officials. Acts of perjury, which are
"deliberate attempts to defraud the courts," harm the fair and effective
administration of justice.' 8 2 False statements to government officials are
likewise prohibited because they have the potential to defraud the government and frustrate governmental actors in carrying out their basic
duties. 1 3 In cases of this kind of speech, false statements are punished
because of the significant interest in preventing harm to the
government.
Like other types of speech that harm the government, false claims
of military awards should be punishable because of the harm such
claims cause to the military. Unlike defamation and other individual
harm cases, the Stolen Valor Act does not create an individual right of
action for actual award recipients against those who falsely claim military awards. It merely creates a right for the government to protect its
own interests through criminal sanctions. False claims of military valor
damage the reputation and meaning of military awards, thereby reducing the value of those awards."' The intrinsic value of a military award
is in the fact that it distinguishes recipients from those who are nonrecipients. Allowing others free license to claim unearned honors would
devalue not only the military awards system in general, but also the
lawful individual claims to those awards. To this effect, the government
is acting to protect its own interests and the interests of its licensees.
Not only do false claims of valor harm the government and demean its awards system, but false claims are often also used to defraud
180
See, e.g., N.Y. Times Co. v. Sullivan, 376
U.S. 254 (1964).
181 See Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988).
182 See Masters, 484 F.2d at 1254.
183
184
See United States v. Fern, 696 F.2d 1269, 1273 (11th Cir. 1983).
Stolen Valor Act of 2005, Pub. L. No. 109-437, § 2, 120 Stat. 3266.
290
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[Vol.
the government and private individuals of goods and benefits.'
The
government's significant interest both in protecting its awards system
and in protecting the public from fraud should enable it to regulate this
field for truthfulness.
B.
Claims of Military Awards Should be Subject to Regulation
Against Deception
In the alternative, the possibility of fraud and the characteristics of
false claims of valor could allow the government to punish false claims
through another route. The government should be able to regulate
claims of military valor for truthfulness for the same reasons it can regulate commercial speech.
Commercial speech does not receive the same protections as other
forms of speech.'"' The profit-centric nature of commercial speech creates a legitimate concern of fraud.1 7 A key reason why commercial
speech is afforded less protection than most other speech is society's
general interest in having the government guard against this fraud.' 8
Although the main distinction between commercial speech and other
varieties of speech is fairly obvious, the Supreme Court has been careful
to identify two main reasons it is treated differently by the courts.' 8 9
First, the truth of commercial speech is more objective and verifiable by
the speaker than many other types of speech.' 9 0 Second, commercial
speech is not as susceptible to the chilling effect as other more fragile
185 See Jim Vines, Appeal Plannedfor Stolen Valor Act Opinion, LAKE COUNTRY SUN (Aug.
13, 2010), http://www.nvo.org/phpbb3/viewtopic.php?p=3550.
186 See R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992).
187 See id. This "profit-driven" desire to take advantage of the consumer is the same type of
motivation behind most false claims of valor: to take unfair advantage of someone through
deception.
188 Id.
189 Commercial speech is that which proposes any commercial transaction:
There are commonsense differences between speech that does "no more than propose
a commercial transaction" and other varieties. Even if the differences do not justify
the conclusion that commercial speech is valueless, and thus subject to complete suppression by the State, they nonetheless suggest that a different degree of protection is
necessary to insure that the flow of truthful and legitimate commercial information is
unimpaired.
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 n.24 (1976).
190 Id. at 772 n.24 ("The truth of commercial speech, for example, may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he
himself provides and presumably knows more about than anyone else.").
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types of speech.19 ' These attributes make it less necessary to tolerate
inaccurate statements for fear of suppressing otherwise legitimate
speech.19 2
For commercial speech, the government is allowed, and indeed encouraged, to ensure that the stream of information flows "cleanly as well
as freely."l 9 3 Although commercial speech is no longer subject to complete governmental regulation, it can be policed for both legality and
truthfulness.1 94 This presents the other side of the free speech coin: the
right to receive "truthful and legitimate" information.19 5 The similar
characteristics of false claims of valor and misleading commercial speech
suggest that false claims of valor should be subject to the same governmental regulation.
First, as with commercial speech, the speaker is better situated to
verify the truthfulness of his claim than a third party. Additionally, false
claims of valor are not highly subjective or subject to never-ending debate. 9 6 The objective truth of whether or not a person received a military award is much easier to verify than are many of the commercial
claims made in advertisements. For the government to suppress commercial speech, it need only be deceptive or misleading, there is no requirement that it be provably false.197 For claims of valor, however, the
government is particularly well-suited to determine the objective
truth-it is the one that grants and keeps records of the awards. The
claim is either provably true or provably false, with no middle
ground.' 98 The ease of this determination by the government, combined with the intimate knowledge the speaker should have of the truth,
should allay any fears of governmental suppression of unpopular ideas.
Like a commercial advertiser, a person who claims to have won a mili191 Id.
192 Id (" [T he greater objectivity and hardiness of commercial speech, may make it less necessary to tolerate inaccurate statements for fear of silencing the speaker.").
193 Id.
194 Id. at 771 n.24. "Untruthful speech, commercial or otherwise, has never been protected
for its own sake." Id at 771.
195 Id. at 771 n.24.
196 For an analysis of this, see Gey, supra note 136, at 10.
197 Va. State Bd., 425 U.S. at 771 ("Obviously, much commercial speech is not provably
false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's
dealing effectively with this problem.").
198 See Gey, supra note 136, at 9 (comparing the relative ease of determining the truthfulness
of objective, verifiable statements with the much more difficult task of determining the truthfulness of subjective arguments).
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tary award knows more about the truth of his statement than anyone
else-except possibly the government."
These characteristics limit any
possible chilling effect.2 00 Claims of military valor are simply not as
susceptible to accidental misstatement as are other more ambiguous or
subjective types of speech. 2 01 Therefore, the same reasons commercial
speakers are held accountable for the truth of their assertions justify
equal or greater regulation of false claims of military valor.
The Supreme Court's test for analyzing whether commercial
speech is protected should apply to false claims of valor. First, in order
to warrant any protection, the speech must at least "concern lawful activity and not be misleading." 20 2 Claims of stolen valor are both misleading and unlawful-the latter of course is the subject of the present
dispute. In order for such speech to be suppressed, however, it need
only have one of these offending characteristics, not both.2 0 3 Because
the speech is likely to deceive, it should be suppressed.
Second, the government must have a substantial interest in order to
regulate speech.2 0 4 Here, the government has two distinct and substantial interests. First, the government has an interest in protecting individuals from fraud. This interest is substantial regardless of the type of
fraud, whether the risk comes from commercial speech or from false
claims of valor.20 5 Second, false claims of valor also damage the reputation and meaning of military awards, thereby reducing the value of
those awards. 20 6 As conceded by the majority in Alvarez, Congress has a
compelling interest in protecting military awards.2 07 The substantial
199 Va. State Bd., 425 U.S. at 772.
200 For a more thorough discussion of the chilling effect, see discussion supra Part III.D.
201 It is fairly easy to determine the objective truth about whether or not you received a
military award.
202 Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 566 (1980).
203 With the current law in constitutional limbo, this may seem like a "chicken and the egg"
or circular argument; however that is not the case. Because a false claim of valor is deceptive, the
requirement is satisfied and the speech can be criminalized.
204 Cent. Hudson Gas, 447 U.S. at 566.
205 The risk of fraud is one of the characteristics that allow commercial speech to be regulated. See R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992).
206 See discussion supra Part IV.A; see also Stolen Valor Act of 2005, Pub. L.
No. 109-437,
§ 2, 120 Stat. 3266.
207 See United States v. Alvarez, 617 F.3d 1198, 1216 (9th Cit. 2010) ("Especially at a time
in which our nation is engaged in the longest war in its history, Congress certainly has an
interest, even a compelling interest, in preserving the integrity of its system of honoring our
military men and women for their service and, at times, their sacrifice.").
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government interest must also be directly advanced by the regulation.2 0 8
The Stolen Valor Act criminalizes claims that are often used to perpetrate fraud, 2 0 9 while preventing the dilution of real awards in order to
protect the military, its award system, and the dishonoring of actual
award recipients. 21 0 Because these government interests are directly advanced by the Stolen Valor Act, this prong of the test is met.
The last requirement before the government can regulate commercial speech is that the regulation must be narrowly tailored.2 1 1 Although
the preferred method for dealing with false speech is to cure it with
more speech, false claims of valor are difficult to remedy with this
method. Who would have the knowledge or arrogance to stop a purported Purple Heart recipient and demand to know how he was injured
in battle or to see his wound? The very question would insult and offend a legitimate recipient, whose emotional well-being and reputation
could then come under fire.2 12 Additionally, those who are defrauded
by false claimants cannot be made whole by more speech. The public
exposure and ridicule of a false claimant will do little to alleviate a victim's financial or emotional losses. More speech is neither appropriate
nor effective in this context.
Additionally, false claims of valor pose a dangerous problem to the
field of politics. The ability of a person to corrupt the electoral process
by falsely claiming a military award is a real danger.2 1 3 If a purported
veteran endorses a political candidate, and that candidate subsequently
wins the election based at least in part on a false statement, the damage
has already been done and cannot be undone. The candidate will have
already been elected, and it is impossible to determine how much of that
candidate's success was based on the false statement. 21 4 No amount of
additional speech can remedy that harm. In order to preserve the integCent. Hudson Gas, 447 U.S. at 566.
151 CONG. REc. S12,684-01, S12,688 (daily ed. Nov. 10, 2005) (statement of Sen. Kent
Conrad).
210 Stolen Valor Act of 2005, Pub. L. No. 109-437, § 2, 120 Stat. 3266.
211 Cent. Hudson Gas, 447 U.S. at 566.
212 The Supreme Court has long recognized the governmental interest in protecting an individual's reputation. See, e.g., Time, Inc. v. Hill, 385 U.S. 374, 391 (1967). It has also found a
government interest in preventing intentional infliction of emotional distress. See, e.g., Hustler
Magazine v. Falwell, 485 U.S. 46 (1988).
213 Veterans are at least arguably given additional respect and credit for their opinions when
endorsing political candidates or speaking publicly.
214 The candidate endorsed by Rick Strandlof did, in fact, win the election. See discussion
supra Part II.B.ii.
208
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rity of the political process, the government has a significant interest in
regulating false claims of valor.
The Stolen Valor Act's necessity has been challenged with the proposal that the government could simply publicize the names of legitimate recipients of military awards, thereby allowing the public to search
the list whenever they encounter a purported award recipient. 2 15 This,
however, ignores two simple realities. First, what if an award recipient
does not want to be exposed to the public spotlight? While public exposure may be unavoidable with certain awards,2 1 6 individual service
members have a privacy right and deserve the opportunity to choose
whether or not to expose themselves to the public.2 1 7 This is strengthened by the Supreme Court's recognition of an actionable right to privacy for the mental distress of public exposure.2 1 8 Because of privacy
interests, a public database of military award recipients is untenable.
Second, publishing such a list, in addition to privacy concerns,
would be unwieldy and inefficient to use. How would you identify an
individual as a valid award recipient by searching a published database?
This would be highly impractical. 2 9' For example, there are over 1000
"John Smiths" in New York City alone, 2 2 0 and over 45,000 in the entire
United States.2 2 ' If a published list were considered the exclusive means
for remedying false claims of valor, all a false claimant would have to do
is to search the database for a similar name to his own and assume
another's identity. Indeed, the mere argument that listeners should be
encouraged to doubt awardees until they have "verified" their award
215 See United States v. Alvarez, 617 F.3d 1198, 1210 (9th Cir. 2010) ("Preserving the value
of military decorations is unquestionably an appropriate and worthy governmental objective that
Congress may achieve through, for example, publicizing the names of legitimate recipients
216 For example, one cannot realistically avoid the spotlight if awarded the Congressional
Medal of Honor. See, e.g., Craig Whitlock & Greg Jaffee, Obama Awards Living Soldier the
Medal of Honor, WASH. POST (Sept. 10, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/09/10/AR2010091002712.html.
217 Indeed, this nearly unavoidable exposure could lead to numerous "right of privacy" cases,
in which "the primary damage is the mental distress from having been exposed to public view."
Time, Inc., 385 U.S. at 386 n.9.
218
Id
219 Absent identifying award recipients by social security number, searching a textual database
of every military member who has even been granted an award would be impracticable.
220 See, e.g., John Smith in New York, WHITEPAGES.COM, http://names.whitepages.com/New
York/John/Smith (last visited Feb. 10, 2012).
221 See, e.g., John Smith, HOWMANYOFME.COM, http://howmanyofme.com/people/JohnSmith/ (last visited Feb. 10, 2012).
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with a published list illustrates the damage already done to the prestige
of the awards by false claims of valor.222 Because false claims of valor are
not easily remedied by more speech and there are no realistic less restrictive ways of protecting military awards, the Stolen Valor Act is sufficiently narrowly tailored.
Considering the similarities of deceptive commercial speech and
false claims of military valor, both deserve no constitutional protection.
The government is free to ban some speech that is "more likely to
deceive the public than to inform it."2 2 3 In cases of stolen valor, the
balance is clearly struck. False claims of valor are not only likely to
deceive the public; they are intended to deceive.22 4 When measured
against its ability to inform, the possibility of deception weighs much
heavier. False claims of valor serve no informational purpose to the
public-it is precisely the deception and lack of informative value that
should make false claims of valor illegal. While the government may
regulate commercial speech that is "not provably false, or even wholly
false, but only deceptive or misleading," 2 2 5 the Stolen Valor Act bans a
more narrowly defined class of speech. It regulates evenhandedly only
that speech which is provably false, with no subjective interpretation
needed. Because of these substantial similarities, the narrowly targeted
class of speech and the de minimis effect on actual expressive speech,
claims of military valor should be subject to governmental regulation for
truthfulness. Therefore, false claims of valor, like deceptive forms of
commercial speech, should not be protected by the First Amendment.
CONCLUSION
Military honors should be entitled to constitutional protection.
These honors should not be demeaned by illogical and harmful extensions of the First Amendment. In a time when soldiers, sailors, airmen,
and marines return home from combat en masse, few Americans would
222 Additionally, even casting aside privacy considerations, a public database could be subject
to errors and mistakes. Actual award recipients who have not been "plugged in" to the database
yet, or were left out in error, could be subject to defamation and public ridicule.
223 Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 563 (1980).
224 Misrepresentations in violation of the statute can only reasonably be interpreted as being
intentional. Satirical and humorous claims would not be criminalized, as they "could not reasonably be understood as describing actual facts . . . or actual events." Hustler Magazine v.
Falwell, 485 U.S. 46, 57 (1988). For a very persuasive argument on this point, see United States
v. Alvarez, 617 F.3d 1198, 1241 (9th Cit. 2010) (Bybee, J., dissenting).
225 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976).
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proudly march their sons and daughters off to war to preserve the rights
of others who would steal their laurels.22 6 When creating the American
military's first award, George Washington said, "should any who are not
entitled to these honors have the insolence to assume the badges of them
they shall be severely punished." 22 7 General Washington's proclamation, while aimed at military men, was fairly explicit. Whatever your
interpretation of "severely punished," it must be irreconcilable with stolen valor being "constitutionally protected."
The Stolen Valor Act is a constitutional restriction on false claims
of military awards and decorations. Although some courts have skillfully crafted clever and well-written arguments why false claims of valor
deserve First Amendment protection, they have lost sight of the forest
for the trees. If the purposes of free speech are to promote the search of
truth through unfettered debate and to encourage individuals to exercise
their rights as sovereigns in a democratic society, these cannot be furthered by muddying the water with intentional lies about military
awards.
The Supreme Court has recognized that a false statement has
"never been protected for its own sake." 2 2 8 Although some false statements are protected so that we do not deter otherwise valuable speech,
there is no chilling effect here. Affording false claims of valor presumptive protection "for its own sake" fails to recognize this important distinction. Negligent misstatements are protected because people make
mistakes. Deliberate false statements, such as false claims of valor,
should not receive any First Amendment protection. 2 2 9 Because of the
government's substantial interests in protecting the integrity of military
awards, the reputation of actual award recipients, and the general public
226 Justice Stevens made a similar statement in a ruling upholding time, place, and manner
restrictions on obscenity. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 (1976)
("But few of us would march our sons and daughters off to war to preserve the citizen's right to
see 'Specified Sexual Activities' exhibited in the theaters of our choice.").
227 This award was the Badge of Military Merit, the predecessor to the Purple Heart. See
George Washington, August 7, 1782, General Orders, LIBRARY OF CONGRESS, http://memory.loc.
gov/cgi-bin/query/r?ammem/mgw:@field(DOCID+@lit(gw240544))
(last visited Feb. 10,
2012) (explaining that although this statement regarded false claims by those in his military
service, it is doubtful Washington foresaw the kind of false claims we now see).
228 Va. State Bd, 425 U.S. at 771.
Garrison v. Louisiana, 379 U.S. 64, 75 (1964) ("[T]he knowingly false statement and the
false statement made with reckless disregard of the truth, do not enjoy constitutional
protection.").
229
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from fraud, the First Amendment should not protect false claims of military valor.