STOLEN VALOR ACT: A CONSTITUTIONAL INSTRUMENT TO
PROSECUTE "PUBLIC FRAUD"
NICHOLAS MULL1
Table of Contents
I. INTRODUCTION ..............................................................................................................................1
II. BACKGROUND ..............................................................................................................................4
A . Free Speech Jurisprudence A pplicable to A nalysis ................................................................4
1. Content-Neutrality ...............................................................................................................4
2. Regulation of Protected Speech: Strict Scrutiny ..................................................................5
3. Overbreadth Doctrine...........................................................................................................5
4. Category of Speech: False Statements of Face ....................................................................6
B. Military A wards History .........................................................................................................8
C. Regulations Governing Military A wards ................................................................................9
D. Stolen V alor A ct of 2005 ......................................................................................................11
E. Constitutional Challenges to the A ct .....................................................................................13
1. Alvarez ...............................................................................................................................13
2. Strandolf.............................................................................................................................15
3. Robbins ..............................................................................................................................16
III. ANALYSIS .................................................................................................................................18
A . False Statements of Face A re an Unprotected Category of Speech......................................18
B. “Public Fraud”.......................................................................................................................19
C. Content-Neutral .....................................................................................................................20
D. Strict Scrutiny .......................................................................................................................21
1. Compelling Government Interest.......................................................................................21
2. Narrowly Tailored to A dvance That Interest Through the Least Drastic Means ..............24
IV. CONCLUSION.............................................................................................................................25
I. INTRODUCTION
We are a Nation formed both by the pen and the sword – not in opposite – but in
symbiotic bond. It was the rhetoric of Thomas Paine2 and Patrick Henry3 that inspired farmers
1
Juris Doctor Candidate, Wayne State University Law School. The author is a Captain in the U.S. Marine Corps
with a professional expertise in military awards as an Adjutant, and the former Head, Personal Awards Section,
Military Awards Branch, Headquarters, U.S. Marine Corps and Recorder, Commandant of the Marine Corps'
Awards Board. DISCLAIMER of Author: any opinions in this Note are those of the author and the author alone and
should not be perceived as an official position of the U.S. Marine Corps or the U.S. Department of Defense.
2
Thomas Paine, 1737-1809, THE HISTORY GUIDE, http://www.historyguide.org/intellect/paine.html (last visited
Oct. 10, 2011). Thomas Paine (1737-1809) was one of the most prominent figures urging America's independence
from Great Britain, and most notable for publishing the pamphlet Common Sense in 1776.
3
Patrick Henry, COLONIAL WILLIAMSBURG, http://www.history.org/almanack/people/bios/biohen.cfm (last visited
Oct. 10, 2011). Patrick Henry (1736-1799) was a prominent leader and orator serving the cause of American
1
and merchants to take up arms in the fight for a revolutionary idea. And it was the courageous
actions of those farmers and merchants at Bunker Hill4, Valley Forge5, and Saratoga6 that
inspired others to endure the hardship and join the cause to make that revolutionary idea a
reality. This bond endured over two hundred years of American history, and reflects two very
basic and fundamental principles of American culture: one, the expression of ideas must not be
suppressed; and two, we honor the veterans that serve or have served to ensure the perpetuity of
liberty.
Our Founders enshrined the first principle in the First Amendment of the U.S.
Constitution.7 Our long history of guaranteeing the free flow of thoughts, ideas, and opinions no
matter how harmful or offensive is a foreign concept to other democratic governments.8
However, in light of our history, we perceive this extreme protection as necessary to prevent an
oppressive government regime dictating to the public which ideas are good and bad. This
concept honors the revolutionary idea formerly referred to: a society of citizens, not subjects, in
which all are stakeholders in the country with a voice to influence the direction of social mores
and government policies.
The free speech clause of the First Amendment was designed to protect the “marketplace
of ideas”9 as manifested through speech or expression, not, however, to protect all verbal
manifestations. "Pure speech" is distinguishable from verbal conduct10 that lacks any expression
of ideas, whether political, religious, scientific, or artistic.
The second principle, to honor veterans, is enshrined in the social mores of American
society respecting those who have chosen the path less travelled, in uniform in service of our
constitutional principles. It is further illustrated in numerous Acts of Congress. Some Acts have
established federal holidays such as Veterans Day and Memorial Day. Other Acts of specific
relevance to this Note have established a hierarchy of military awards. To honor the soldiers,
independence, most widely known for the utterance of the words "Give me liberty or give me death," when urging
fellow Virginians to take up arms in self-defense against Great Britain.
4
Bunker Hill Monument, NAT’L PARK SERV.: DEP’T OF THE INTERIOR,
http://www.nps.gov/bost/historyculture/bhm.htm (last visited Oct. 10, 2011). The Battle of Bunker Hill was the first
major battle of the American Revolution and was of great inspiration for others to join the fight. Despite ultimately
losing ground, the ill-trained and ill-equipped colonists inflicted severe casualties on the enemy, amounting to
roughly fifty percent of British forces.
5
W hy V alley Forge?, NAT’L PARK SERV.: DEP’T OF THE INTERIOR, http://www.nps.gov/vafo/index.htm (last visited
Oct. 10, 2011). Valley Forge was the winter encampment of American forces under General George Washington
during 1777-78, and has long been a symbol of perseverance through great adversity.
6
THE BATTLE OF SARATOGA, http://www.saratoga.org/battle1777/ (last visited Oct. 10, 2011). The Battle of
Saratoga was the critical turning point in the American Revolution. The American victory reinvigorated colonial
resolve and the French finally were convinced that the Americans could prevail, thus forming the critical military
alliance necessary for ultimate victory.
7
U.S. CONST. amend. I ("Congress shall make no law . . . abridging the freedom of speech.").
8
See generally Robert A. Sedler, A n Essay on Freedom of Speech: The United States V ersus the Rest of the W orld,
2006 MICH. ST. L. REV. 377 (2006).
9
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting) ("[T]he ultimate good desired is better
reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That
at any rate is the theory of our Constitution."). This concept has served as a foundational phrase for free speech
jurisprudence.
10
Schenck v. United States, 249 U.S. 47, 52 (1919). Justice Holmes, writing for the majority noted that the "most
stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
This has become the catchphrase for the understanding that the free speech clause of the First Amendment does not
proscribe any regulation against general conduct manifested through speech, i.e., fraud, defamation, or perjury.
2
sailors, airmen and Marines that have demonstrated exceptional accomplishment, courage or
heroism under fire, or were wounded or killed in combat, Congress has established the system of
military awards through its Article I powers to regulate the military.11
The military awards system is closely regulated through detailed qualifications and
procedures for recognition with a military award. This process is subject to great scrutiny as the
uniformed and civilian leaders of the military protect the sanctity of these awards, especially
valor awards (Medal of Honor, one of the Service Crosses, and the Silver Star) and the Purple
Heart. Recommendations for valor awards are reviewed with a level of scrutiny appropriate for
the level of the award, somewhat analogous to the former devil’s advocate process of sainthood
in the Catholic Church, as a means to ensure the accuracy of the facts portrayed in the
recommendation.
During our current time of war, Congress became deeply concerned with increased levels
of fraudulent claims of military valor by individuals seeking to gain standing in their
communities for fame or fortune.12 To protect the sanctity of military awards, Congress
responded by enacting amendments to the Stolen Valor Act to also prohibit the “false
representation” by an individual, verbal or written, that he was awarded any military decoration,
when in fact, he had not been.13
In August 2010, in United States v. A lvarez, the Ninth Circuit ruled that the amendment
to the Stolen Valor Act is unconstitutional on its face.14 The Ninth Circuit held in a 2-1 decision
that the statute does not fit within a category of speech unprotected by the First Amendment, and
fails the strict scrutiny test despite conceding the compelling government interest. The A lvarez
Court found that the Act was not narrowly tailored to advance that compelling governmental
interest.15
This Note will argue that the Stolen Valor Act is constitutional because it prohibits a
category of speech that is simply outside the realm of protection by the First Amendment: false
statements of objectively verifiable fact void of any speech context. Only the amended
provisions of the Act of 2005 will be addressed, regarding the false representation that an
individual is a recipient of a military award, since provisions criminalizing the unauthorized
wearing of the medals have long been upheld in the courts.16 Moreover, even assuming protected
speech is involved in this deceptive representation, the Act on its face meets the strict scrutiny
11
U.S. CONST. art. I, § 8, cl. 14 ("To make Rules for the Government and Regulation of the land and naval
Forces.").
12
151 CONG. REC. S12684-01 (daily ed. Nov. 10, 2005) (Westlaw) (statements of Senator Conrad introducing S.
1998, 109th Cong. § 1 (2005) (enacted), also known as the Stolen Valor Act of 2005)).
13
Stolen Valor Act of 2005, 18 U.S.C. § 704(b) (2006). Prior to 2005, the Stolen Valor Act only prohibited the
wearing of awards; it did not proscribe verbal conduct.
14
United States v. Alvarez, 617 F.3d 1198, 1217 (9th Cir. 2010), cert. granted, 132 S. Ct. 457 (Oct. 17, 2011) (No.
11-210). Petition for writ of certiorari was petitioned and granted after I completed this Note, so some of the
background material does not directly address these actions. Oral argument in this case is currently scheduled for
Feb. 22, 2012.
15
Id. at 1215-16.
16
See, e.g., United States v. Perelman, 737 F. Supp. 2d 1221, 1233-37 (D. Nev. 2010) (holding the Stolen Valor
Act's proscription against the unauthorized wearing of military medals was (a) not a content-based regulation, (b)
has been effectively unchanged since 1928, and (c) is well within the authority of Congress to regulate). See also
Schacht v. United States, 398 U.S. 58, 61-63 (1970) (holding federal statute prohibiting the wearing of military
uniforms without authority does not violate the First Amendment and is not content-based, but a companion statute
that authorized actors to wear the uniform as long as the portrayal did not discredit the military was a content-based
restriction on free speech).
3
test in that it is narrowly tailored to advance a compelling government interest by the least drastic
means. This Note will first give a detailed background of First Amendment history and
jurisprudence, as well as a background of the military awards system necessary to understand the
asserted compelling governmental interest. Once the state of the law is established, this Note will
conduct an analysis of Supreme Court jurisprudence and constitutional history to illustrate that
false statements of fact outside any possible context of the expression of an idea are not subject
to heightened First Amendment protection.
II. BACKGROUND
This section will first provide the legal background of First Amendment jurisprudence
under the free speech clause, while more specifically providing amplified details concerning case
precedents dealing with false statements of fact and criminal sanctions for verbal conduct.
Second, a factual and legal background will be set up regarding the Military Awards program,
including laws, regulations and procedure, followed by the legislative and case history of the
Stolen Valor Act.
A . Free Speech Jurisprudence A pplicable to A nalysis17
While the First Amendment was drafted in absolutist terms, the United States Supreme
Court has consistently held that it is not an absolute prohibition of any regulation dealing with
conduct manifested by the spoken or written word.18 In fact, there are certain categories of
speech outside the realm of constitutional protection such as "obscenity, defamation, fraud,
incitement, and speech integral to criminal conduct."19 This list, however, is not exhaustive, as
there may be other "categories of speech that have been historically unprotected, but have not yet
been specifically identified" by the Court.20 This section will focus more specifically on the
concepts of defamation and fraud, which are sub-categories of the larger concept of false
statements of objectively verifiable fact at issue with regard to the Stolen Valor Act. As
concluded by the Court, "the knowingly false statement and the false statement made with
reckless disregard of the truth, do not enjoy constitutional protection."21
1. Content-Neutrality
The principle of content-neutrality is one of the most powerful principles of free speech
jurisprudence. In fact, "content-based regulations are presumptively invalid."22 The government
cannot prohibit speech based on the viewpoint expressed or its subject matter under the First
17
See Robert A. Sedler, The First A mendment in Litigation: The "Law of the First A mendment," 48 WASH. & LEE
L. REV. 457 (1991) (discussing the law of free speech in much greater detail than the subject of this Note requires).
18
Konigsberg v. State Bar of California, 366 U.S. 36, 49-50 (1961) (stating "[W]e reject the view that freedom of
speech and association, as protected by the First and Fourteenth Amendments, are 'absolutes,' not only in the
undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of
that protection must be gathered solely from a literal reading of the First Amendment.").
19
United States v. Stevens, 130 S.Ct. 1577, 1584 (2010) (internal citations omitted).
20
Id. at 1586.
21
Garrison v. Louisiana, 379 U.S. 64, 75 (1964).
22
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
4
Amendment.23 This principle extends to the classic categories of speech that are said to be
unprotected if the regulation is not based on "proscribable content."24 For example, the
government can regulate defamation as content, but cannot make a secondary content-distinction
by only regulating defamation against the President, because this would use defamation as a
means to encourage a particular viewpoint. In this hypothetical, the distinction would serve to
preserve a desired image for the President. Conversely, the government cannot use secondary
content-distinctions to suppress a particular viewpoint.25 The government can, however, make
distinctions within the class regarding categories of speech unprotected by the First
Amendment.26 Where the distinction is based "entirely of the very reason the entire class of
speech at issue is proscribable, no significant danger of idea or viewpoint discrimination
exists."27 Another pertinent example from case law is that "a State may choose to regulate price
advertising in one industry but not in others, because the risk of fraud" without offending this
secondary concept of content discrimination.28 If a distinction within a class of unprotected
speech does not undermine the principle that government cannot sanction disfavored views while
opening a forum for favored views then the regulation is not inconsistent with the principle of
content-neutrality.29
2. Regulation of Protected Speech: Strict Scrutiny
With respect to content-based regulations of speech or regulations of speech not carried
out through expressive conduct, the regulation must pass a strict scrutiny analysis.30 Strict
scrutiny requires the statute to be narrowly drawn to advance a compelling government interest
through the least drastic means.31 It is true that "strict scrutiny leaves few survivors,"32 but the
Court has never held it impossible.
3. Overbreadth Doctrine
The overbreadth doctrine, or sometimes called the "void on its face doctrine," has its
foundations rooted in the "chilling effect" concept of free speech.33 This doctrine allows a citizen
or defendant to challenge a law restricting speech on its "face for substantial overbreadth or
vagueness without regard to whether the activity of the party challenging the law is itself
constitutionally protected."34
23
Sedler, supra note 17, at 457.
R.A .V ., 505 U.S. at 383-84.
25
See id. at 385. (stating "the proposition that a particular instance of speech can be proscribable on the basis of one
feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace).
26
Id. at 388.
27
Id.
28
Id.
29
See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986).
30
See Texas v. Johnson, 491 U.S. 397, 412 (1989) (finding regulation based on the content of the message must
meet strict scrutiny); See Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973) (stating "statutes attempting to
restrict or burden the exercise of First Amendment rights" must pass strict scrutiny).
31
See Broadrick, 413 U.S. at 611-12.
32
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 455 (2002).
33
Sedler, supra note 17, at 463.
34
Id.
24
5
An overbreadth analysis has two steps: one, construing the challenged statute; and two,
based on the construction of the statute, deciding whether it will prohibit a "substantial amount"
of protected speech.35 The requirement that the statute must have a substantial threat of
sanctioning protected speech is based on a balancing of interests. Therefore, a statute will only
be found to be overbroad if the social harm caused by not regulating certain unprotected speech
is outweighed by the chilling effect the broad construction of the statute may have on protected
speech.36 If, however, the statute can be subjected to a limiting construction or only partial
invalidation to mitigate the chilling effect to less than a substantial amount, it will not be
invalidated.37 In recognition that the overbreadth doctrine is "strong medicine," the Court has
used it only "sparingly and only as a last resort."38
In construing the application of a statute that may with one reading potentially raise
constitutional concerns, the Court shall construe that statute in a manner to remove any
constitutional barriers if doing so is consistent with Congressional intent.39 This has been a
central principle of statutory construction with respect to constitutional challenges dating back to
Chief Justice John Marshall in Murray v. The Charming Betsy in 1804.40 The premise of the
principle is that courts should not needlessly decide constitutional issues and should presume that
Congress did not intend to violate the Constitution.41
In more recent cases, the Court has seemed to take a more extreme textualist approach to
construing federal statutes challenged as facially overbroad.42 These cases, however, dealt with
operative language in a statute that posed the constitutional concern that would have required the
Court to effectively rewrite the statute by omitting certain words; not making logical inferences
to save the statute without changing the text.43 The Court maintained that a narrowing
construction of the plain text of the statute could be made if there is in "the text or other source
of Congressional intent . . . a clear line" that the Court can draw to eliminate any potential threat
to protected speech.44
4. Category of Speech: False Statements of Fact
As noted, there are certain categories of speech that serve no purpose in the "marketplace
of ideas" and that are unprotected by the First Amendment. One of those categories (potentially),
although never explicitly held to be so by the court, but asserted as a foundational basis in
analyzing all constitutional challenges to defamation, libel, fraud, intentional infliction of
35
United States v. Williams, 553 U.S. 285, 292-93 (2008) (holding the Prosecutorial Remedies and Other Tools to
end the Exploitation of Children Today Act was not overbroad).
36
Broadrick, 413 U.S. at 612.
37
Id. at 613.
38
Id.
39
See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988).
40
Id.
41
Id.
42
See, e.g., supra note 19, at 1591-92 (2010) (invalidating a federal statute against commercial depictions of animal
cruelty because operative phrase that the depicted conduct be "illegal" would subject the speaker to potential
liability based on varying standards in over 50 jurisdictions).
43
See generally Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (invalidating a federal statute
prohibiting the electronic transmission of "obscene or indecent" material to minors because it could only be saved by
omitting the actual text "or indecent" from the statute to only regulate unprotected speech).
44
Id. at 884.
6
emotional distress (IIED), etc., is false statements of objectively verifiable facts.45 But, it should
be noted that the Court has not had occasion or need to make a narrow decision concerning false
statements of objectively verifiable facts because the broad category of speech has come before
the Court in pieces.
In New Y ork Times v. Sullivan, the Court held that a public official cannot recover for
defamation concerning defamatory falsehood about his official conduct without showing the
statements were made with actual malice.46 The Court has expanded this rule regularly to now
cover statements about public officials, public figures, and concerning subject matters of public
concern.47 To decide whether speech is a matter of public or private concern, courts are to look
to the "content, form, and context" of the statements with no one factor being dispositive.48
The Court formulated the New Y ork Times rule with two important premises in mind.
First, for the First Amendment to fulfill its guarantee of uninhibited public debate, "breathing
space" must be allowed because "erroneous statement is inevitable in free debate."49 Second, that
challenged statements are often made in reliance on outside sources and as such, to allow strict
liability in the realm of public debate for falsehoods would create a chilling effect on potentially
truthful speech, preventing a greater amount of information from reaching the "marketplace."50
The second premise is further supported by the Court’s refusal to extend the New Y ork Times
rule to commercial speech.51 In rationalizing a different degree of protection to false commercial
speech than false public speech, the Court has noted that, unlike the news reporter or political
activist relying on hearsay sources, the commercial enterprise in advertising is making factual
assertions about itself, so it can easily verify the veracity of its statements.52
With respect to cases of defamation, a plaintiff has to show some resulting personal
damages from false factual statements as an element to the offense. However, the Court also has
stated, "[f]alse statements of fact harm both the subject of the falsehood and the readers of the
statement. [A State] may rightly employ its libel laws to discourage the deception of its
citizens."53 This statement reflects the potential that the government interest in protecting the
general public from deception warrants a prophylactic rule against false statements of fact
without showing a resulting individual harm because the harm to the recipient of the statement
may not be tangible.
45
See New York Times v. Sullivan, 376 U.S. 254, 283 (1964) (holding a public official cannot recover for libel
without proving it was done with actual malice), Garrison, 379 U.S. at 75 (extending the New Y ork Times rules to
criminal sanctions of libel, but stating "the knowingly false statement and the false statement made with reckless
disregard of the truth, do not enjoy Constitutional protection."), Time, Inc. v. Hill, 385 U.S. 374 (extending New
Y ork Times rule to a state right to privacy statute), Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) (extending
New Y ork Times rule to IIED claims by public figures and false factual statements are those objectively verifiable),
and Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (iterating that the New Y ork Times rule applies to
public officials, public figures, and statements about matters of public concern); see also Gertz v. Welch, 418 U.S.
323, 340 (1974) (stating "there is no constitutional value in false statements of fact."),
46
New Y ork Times, 376 U.S. at 283.
47
See generally supra note 45.
48
Snyder v. Phelps, 131 S.Ct. 1207, 1216 (2011) (holding father of a deceased Marine could not recover for IIED
because church members picketing his son's funeral were addressing matters of public concern and the statements
could not reasonably be interpreted to assert false factual statements with malice about his son).
49
New Y ork Times, 376 U.S. at 271-72.
50
Id. at 279-80.
51
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 n.24 (1976).
52
Id.
53
Keeton v. Hustler Magazine, 465 U.S. 770, 776 (1984).
7
Based on the jurisprudence of the Court, especially with the continued expansion of the
New Y ork Times rule, it seems that the broad category of false statements of objectively
verifiable fact are unprotected by the First Amendment. However, if the false statements involve
public figures, public officials, or concern a general subject matter of public concern they have
limited protection to ensure the widest dissemination of information to the public, but that
limited protection is negated if the statements are made with malice.
B. Military A wards History
Military Awards, badges, and the like have a long history in the armed forces of the
world as a means to promote morale and welfare by ensuring recognition by superiors of
meritorious or heroic service or sacrifice.
In the United States, a military award system began when General George Washington
established the Badge of Military Merit through a General Order on August 7, 1782.54 General
Washington addressed the need to recognize meritorious performance of his enlisted troops in
order to preserve the morale and welfare of his army, a truly indispensable element of military
efficiency as recognized by all great field commanders. Although General Washington's General
Order stated that the award "shall be permanent," it did not find life after the American
Revolution.55
In the interim conflicts before the American Civil War a permanent system of military
awards did not exist; instead, field commanders often devised their own systems of recognition.
Often this recognition would be in the form of promotions of enlisted men or even battlefield
commissions. During the Mexican-American War, a Certificate of Merit was awarded to
distinguished troops, and often was accompanied by a cash bonus.56 While this did foster morale
and welfare, it was not an award to be worn that would have visible permanence on the uniform
of the soldier. It was an award recognizing meritorious service, but the lack of visibility on the
chest of the performer of the deed demonstrated a lack of foresight by commanders at the time of
the inspiration a visible medal provides for other troops and future generations. It also reflected
the standard American practice of the time of not having a standing professional military outside
times of war.
During the American Civil War, the true potential of a military awards system was finally
recognized as one of the most effective means to foster the efficiency of military operations. The
most notable officer of the Civil War recognizing the value of honoring his men with visible
attachments to the plain service uniform was Major General Joseph Hooker. Major General
Hooker was a first rate field commander who understood that the morale and welfare of his men
were critical to success. As a means to develop pride and esprit de corps among his men, Major
General Hooker had his men design and create unit patches to distinguish them from other
units.57
It was also during the Civil War that the Medal of Honor was established. First, in 1861
the Medal of Honor for the Navy was approved, followed by that for the Army in 1862.58 The
54
The Purple Heart: Our Nation’s First Military A ward, HOME OF HEROES,
http://www.homeofheroes.com/medals/purple_heart/purple_heart.html (last visited Oct. 10, 2011).
55
Id.
56
Id.
57
Civil W ar Corps Badges, GLOBAL SECURITY.ORG, http://www.globalsecurity.org/military/agency/army/corpscivil-war-badges.htm (last visited Feb. 5, 2012).
58
Supra note 54.
8
Navy requested Congress pass legislation to create the award in order to "promote efficiency in
the Navy."59 This represents a critical recognition of the need for a highly regarded military
awards program for the efficient operation of the military. Originally, it was to be awarded only
to enlisted personnel but eventually expanded by the end of the war to include officers.60
The Medal of Honor was the only personal award authorized until 1917, at which time
Congress recognized the need for a hierarchy of military awards to recognize actions in a more
systematic and consistent manner. In 1917, the Distinguished Service Cross for the Army, the
Navy Cross for the Navy and Marine Corps, and the Silver Star were established as personal
awards recognizing valor in combat of lesser degree than that required for the Medal of Honor.61
This was the true beginning of our modern Military Awards system that now encompasses
numerous other decorations in general categories of personal, campaign and service, and unit
awards.
C. Regulations Governing Military A wards62
Military Awards, like other aspects of military regulations, are ultimately governed by
Congress under its Article I powers,63 to which the Court has noted that the "constitutional power
of Congress to raise and support armies and to make all laws necessary and proper to that end is
broad and sweeping."64 Congress has provided the foundations and general regulations for an
expansive system of Military Awards through numerous statutes, and has authorized the
Secretary of Defense and each Service Secretary to promulgate the precise details of the
processes.65 Each Service Secretary has established, as required, their own detailed regulations
that govern Military Awards within the Department.66
There are three distinct categories of military awards: personal awards, campaign and
service awards, and unit awards. Generally speaking, awards are worn on the left breast of a
service person while in uniform in an order of precedence dictated by regulations, with all
personal awards followed by unit awards, then campaign and service awards.
Personal awards are presented to recognize soldiers, sailors, airmen, and Marines that
"demonstrate exceptional valor, heroism, or meritorious service" or achievement.67 There are
personal awards for both combat and non-combat performance. The most coveted and
recognized awards, by both the public at large and veterans, are the valor awards (Medal of
Honor, Distinguished Service Cross (Army only), Navy Cross (Navy and Marine Corps only),
Air Force Cross, and the Silver Star) and the Purple Heart. Regardless of the level of award, it is
59
Id.
Id.
61
Id.
62
The content of Section II.C. of this Note is completely within my own personal knowledge and professional
experience obtained throughout my career. All statements made without direct cite are made with personal
knowledge, and can generally be found in the regulations cited infra note 68.
63
U.S. CONST. art. I § 8, cl. 12 ("to raise and support Armies"), 13 ("to provide and maintain a Navy"), and 14 ("to
make Rules for the Government and Regulation of the land and naval Forces").
64
United States v. O'Brien, 391 U.S. 367, 377 (1968) (upholding a federal regulation prohibiting the intentional
destruction of draft cards against a First Amendment challenge).
65
See 10 U.S.C. §§ 1121-1135 (general Department of Defense regulations), 3741-3756 (Army decorations and
awards), 6241-6258 (Navy and Marine Corps decorations and awards), 8741-8756 (Air Force decorations and
awards) (2006).
66
See, e.g., Navy and Marine Corps Awards Manual, SECNAVINST 1650.1H (22 Aug. 2006).
67
Id.
60
9
a clear standard that personal awards should only be recommended for cases in which
performance of duty is above and beyond expectations.
The sanctity of the system is so critical that there are numerous levels of control to ensure
that personal awards are simply not handed out to anyone favored by their commander.68
Generally, personal awards must be recommended by the first commissioned officer superior in
the chain of command to the nominee and routed through the chain of command for
endorsements until the recommendation reaches a delegated awarding authority. The higher
precedence of the award, the higher up the chain of command it must go for final decision, i.e.,
the Medal of Honor must be approved by the president of the United States, a service Cross by
the respective Service Secretary, and a Silver Star by at least the Service Chief. It is also
Department of Defense policy that recommendations for personal awards are not prematurely
disclosed; knowledge is limited to only those involved in the selection process. This is to prevent
potential embarrassment for the nominee, in case the recommendation is disapproved or
approved at a lower level, and to ensure that no one can believe they have been awarded a medal
or ribbon that has not in fact been approved by a delegated awarding authority.
All personal award recommendations are accompanied by a detailed summary of action
so that the chain of command can properly evaluate the performance and ensure the uniform
standard for each type of personal award is preserved.69 Further, most commanders establish
awards boards to review multiple recommendations to apply consistent precedents. Awards
boards are typically made up of senior advisers with extensive experience or expertise to advise a
commander on his or her intermediary or final endorsement on a recommendation.
Additional measures to guarantee accuracy of information include time limits for
submission of personal award recommendations and requirements of eyewitness statements for
various combat awards or awards for heroism. Generally, personal award recommendations must
be made within three years of the date of action and awarded within five years;70 a special
provision allows review outside that period, but only after being recommended by a member of
Congress.71 Also, award recommendations based on valorous or heroic actions require
submission of sworn eyewitness statements to corroborate the summary of the action by the
originating officer. Award recommendations for the Medal of Honor require commanders to
68
In order to gain a greater in depth knowledge of the internal processes and regulations governing military awards
in the Department of Defense and in each Service Department: see Department of Defense Manual of Military
Decorations and Awards, DoD 1348.33-M, Vol. 3 (23 Nov 2010), available at http://www.dtic.mil/whs/directives/
corres/pdf/134833vol3.pdf; Navy and Marine Corps Awards Manual, SECNAVINST 1650.1H (22 Aug 2006),
available at http://www.marines.mil/news/publications/Documents/SecNavInst%201650.1H.pdf; Department of the
Army Manual of Military Awards, AR 600-8-22 (11 Dec 2006), available at http://armypubs.army.mil/epubs/pdf/
R600_8_22.pdf; and The Air Force Awards and Decorations Program, AFI 36-2803 (15 Jun 2001), available at
http://www.af.mil/shared/media/epubs/AFI36-2803.pdf.
69
It should be noted that outside of the Marine Corps, some low level awards for non-combat actions only require a
proposed citation instead of a full detailed summary of action; however, the citation would still provide sufficient
detail to outline the most significant achievements warranting the receipt of the award.
70
See, e.g., 10 U.S.C. § 6248 (2006). This is a general principle with minimal exception, i.e., award
recommendations for the Purple Heart and Combat Action Ribbon are not subject to limitations. This regulation is
analogous to a statute of limitations with regard to causes of action in that its purpose is to ensure the accuracy and
availability of evidence to justify receipt of the award. It additionally provides an incentive for superior officers to
quickly gather information to recognize deserving subordinates to further the purpose of the military awards system
to foster morale and welfare - similar to the incentive for a plaintiff to not sit on a cause of action.
71
See 10 U.S.C. § 1130 (2006). Outside of a potential waiver on the time for submitting the recommendation, this
process still maintains all other requirements including chain of command endorsements, summaries of actions, and
eyewitness statements for combat awards.
10
conduct a full investigation into the events subject for review for the slightest possibility that the
events may have not transpired as reported.
Personal awards may be awarded to only those individuals that have served honorably in
general. If an individual's service was dishonorable after a period of service or event to be
recognized, that award recommendation must either be disapproved or rescinded by the
originating officer, or if already approved, it must be revoked prior to presentation.72 This
practice serves to protect the integrity of the system and the value of military awards as
perceived by the military, veterans, and the public at large.
In an effort to ensure personal recognition before a recipient's peers, inspire others to
exceptional service, and foster the overall morale and welfare of the unit, regulations require that
personal awards be personally presented to the recipient in public ceremony. This also serves to
preserve the value of awards. It also guarantees that an individual could not innocently believe he
is the recipient of an award when he is in fact not.
Approved awards are inserted into the permanent Official Military Personnel Files of all
service persons, and listed on the DD 214 Discharge Certificate for all service persons that leave
the military for civilian life. The Discharge Certificate is presented to all persons as they exit the
service, and further negates any chance that an individual could mistakenly believe he rates an
award. It lists personal awards, campaign and service awards, unit awards, and badges an
individual earned during his or her service.
D. Stolen V alor A ct of 2005
On November 10, 2005, Senator Kent Conrad of North Dakota introduced a bill to amend
Title 18 that would become known by its popular name, the Stolen Valor Act of 2005.73 Senator
Conrad spoke of his concern about "individuals who diminish the accomplishments of award
recipients by using medals they have not earned."74 He specifically noted how imposters claim to
have earned military awards to "gain credibility in their communities," and further asserted that
"[Congress] must never allow their (veterans) service and sacrifice to be cheapened by those who
wish to exploit these honors for personal gain."75 The bill was presented in the Senate in a true
bi-partisan effort with fourteen Democrats and fourteen Republicans signing on as the sponsor
and co-sponsors of the legislation.76 The bill would go on to pass without amendment through
the Senate by unanimous consent.77
Following the Senate vote, Congressman John T. Salazar of Colorado introduced the
House version of the bill with 110 co-sponsors, including 73 Democrats and 37 Republicans:
once again, an uncommon occasion for overwhelming bi-partisanship.78 During floor debate,
members re-emphasized that the Act was necessary to combat the increased levels of imposters
that devalue the significance of military awards for their own "greed and selfishness."79
72
See, e.g., 10 U.S.C. § 6249.
151 CONG. REC. S12684-01 (daily ed. Nov. 10, 2005) (statement of Sen. Conrad).
74
Id. at S12688.
75
Id.
76
Bill Summary & Status: 109th Congress (2005-2006), S. 1998, THE LIBRARY OF CONGRESS,
http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SN01998:@@@L&summ2=m& (last visited Dec. 26, 2011).
77
Id.
78
152 CONG. REC. H8819-01 (daily ed. Dec. 6, 2006) (statements of Reps. Conyers, Salazar, and Sensenbrenner).
79
Id. at H8820.
73
11
Specific findings made by the Senate and reaffirmed by the House were the following:
(1) fraudulent claims of receipt of military awards damages the reputation and meaning of the
awards, (2) "Federal law enforcement officers have limited ability to prosecute fraudulent
claims" because most claims are made orally or written, not by wearing the medal, and (3)
legislative action was necessary to preserve and restore the full reputation and meaning of the
awards.80 Several members believed that the Stolen Valor Act would restore the precedent
"established by General George Washington" in 1782 when he noted the following in his
establishment of the Badge for Military Merit: "[s]hould any who are not entitled to these honors
have the insolence to assume the badges of them, they shall be severely punished."81 The bill had
such overwhelming support that the House only took a voice vote and recorded that at least twothirds voted in favor of the legislation.82 President George W. Bush signed the Act into law on
December 20, 2006,83 at which time the Justice Department began investigating false claims for
subsequent prosecution.
The Stolen Valor Act of 2005 reinforced previous versions of the law to give law
enforcement officers the ability to prosecute an imposter that "falsely represents himself or
herself, verbally or writing, to have been awarded any decoration or medal" of the armed
forces.84 Previous iterations of the law still preserved in the current version also made it a crime
to wear a military decoration or medal that an individual does not rate, but only the expanded
provisions will be analyzed in detail by this Note. The Act makes false representations, orally or
written, a criminal misdemeanor subject to fine, six months imprisonment, or both.85 The Act
further provides for enhanced penalties for false representations of receipt of valor awards and
the Purple Heart to include fine, imprisonment not more than one year, or both.86
As the Chicago Tribune reported in 2008, the "fabrication of heroic war records is far
more extensive than you might think."87 The correspondent found at that time on a popular
biographical reference website of white-collar professionals, of the 333 people claiming to be a
recipient of a valor award, one-third of them were unsupported by any military records. The
correspondent further researched obituaries and headstones in cemeteries, which led to a finding
that one-half of all claims were false.
The false claims were not made in large part by the repeat offender, but by professionals
of repute in their communities such as "lawyers, physicians, clergymen, CEOs, business
executives," and "elected officials."88 For example, "Michael Roshkind, a former senior
executive at Motown Records" awarded himself a Navy Cross.89 Further, "John Agenbroad, the
four-time mayor of Springboro, Ohio," falsely represented himself in his online biography and to
80
Id. at H8819.
Id. at H8821.
82
Id. at H8823.
83
Supra note 76.
84
Stolen Valor Act § 704(b).
85
Id. at 704(b) ("Whoever falsely represents himself or herself, 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 shall be fined under this title, imprisoned not more than six months,
or both.")
86
Id. at 704(c)(d).
87
John Crewdson, False Courage: Claims for top military honors don’t hold up, CHI. TRIBUNE, Oct. 26, 2008, at 1.
88
Id.
89
Id.
81
12
his constituents as being the recipient of the Silver Star.90 It is important to note the findings of
this article only scratch the surface of the epidemic across our nation. Congress found it fit that
these impostors no longer avoid justice as they exploit the goodwill of the public toward
recipients of military awards.
Due to the expansive nature of the problem, and to assist strained federal law
enforcement, several states have also enacted their own versions of the Stolen Valor Act so that
state law enforcement officials can prosecute these imposters.91 It is likely other states with a
strong veterans' presence will continue this trend because the FBI only has the resources to
investigate the most serious cases.92
E. Constitutional Challenges to the A ct
After over forty prosecutions under the Stolen Valor Act, most resulting in convictions
from guilty pleas93, the Act has come under attack by impostors that refuse to take responsibility
for their actions.
This attack resulted in the Ninth Circuit Court of Appeals declaring the Act an
unconstitutional violation of the First Amendment's guarantee to freedom of speech.94
Additionally, two federal district courts have ruled on the act: one, pending appeal with the
Tenth Circuit, ruled it to be unconstitutional;95 the other found the Act is a constitutional
restriction on unprotected verbal conduct.96
1. Alvarez97
The defendant, Xavier Alvarez, was on the "Three Valley Water District Board of
Directors in 2007" in California. At a meeting with another water board from a neighboring city,
Alvarez spoke before the crowd and stated the following:
I'm a retired Marine of 25 years. I retired 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.98
90
Id.
See, e.g., CONN. GEN. STAT. ANN. § 53-378 (West 2010); KY. REV. STAT. ANN. § 434.444 (West 2010); MO.
ANN. STAT. § 578.510 (West 2010); 18 PA. CONS. STAT. ANN. § 6701 (West 2010); CAL. MIL. & VET. CODE § 648.1
(West 2010) (repealed 2011).
92
See Keith Rogers, Prosecuting Fraud Cases: Military Impostors Targeted; State Equivalent of Stolen V alor A ct
Proposed, LAS VEGAS REVIEW-JOURNAL, Jun. 25, 2010, at 2B.
93
See Crewdson, supra note 87.
94
A lvarez, 617 F.3d at 1218.
95
United States v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010), rev'd, No. 10-1358, 2012 WL 247995 (10th
Cir. 2012). Thankfully, during the final editing process of my Note, the Tenth Circuit Court of Appeals reversed the
district court in Strandlof and held the Stolen Valor Act to be constitutional. Although the Supreme Court already
granted certiorari, this decision is important because it established a split in the circuits. Further, I am grateful
because the Tenth Circuit's decision provides on point validation of some of my general arguments at the appellate
level.
96
United States v. Robbins, 759 F. Supp. 2d 815, 822 (W.D. Va. 2011), appeal docketed, No. 11-4757 (4th Cir. Jul.
29, 2011). The appeal of this case was filed after I finished this Note, and parties are still in the process of
submitting appellate briefs.
97
See supra note 14. For the section titled A lvarez, information in reference to facts or court opinion generally
referenced can be found in the case report.
91
13
This statement was a continuation of a long history of false claims of military valor by
Alavarez. He told numerous people in the community that he was the recipient of the Medal of
Honor (sometimes citing different actions), even before he was elected to the water board. One
woman, suspicious of his claims, informed the FBI of his claims the summer prior to his election
to the water board. The FBI subsequently indicted Alavarez for violations of the Stolen Valor
Act after it "obtained a recording of the water district board meeting."99
At the district court hearing, Mr. Alvarez moved to dismiss the indictment on grounds
that the Act was unconstitutional, both on its face and as applied to him. The district court denied
his motion, and Mr. Alvarez subsequently pleaded guilty on the grounds that his right to appeal
on basis of the First Amendment was reserved.100
The Ninth Circuit concluded that the Act was a content-based regulation of speech, and
as such, must pass a strict scrutiny analysis to survive a constitutional challenge.101 The court
made this conclusion on the grounds that the Act punished "words about a specific subject:
military honors." However, the court later noted that "[t]here is certainly no unbridled
constitutional rights to lie such that any regulation of lying must be subjected to strict
scrutiny."102
The circuit court discussed the New Y ork Times103 rule that a speaker publishing a false
statement of fact on a matter of public concern can only be punished with an actual showing of
malice. Because military awards are a matter of public concern, the court reasoned the statute
must have a scienter requirement of actual malice. The court continued its reasoning assuming
the statute indicated the scienter requirement of "knowingly," but the court felt the statute could
only be sustained if it were sufficiently analogous to defamation or fraud.104
The circuit court declined to find the Act analogous to defamation or fraud in large
respect because the action would not cause an injury to a person. Regarding the fraud analogy,
the circuit court further noted that the statute, facially, did not include a specific intent to deceive
the listener.105
Next, the circuit court applied strict scrutiny to the Act. It conceded that Congress has 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." But, the circuit court held the Act was not
narrowly tailored to advance that interest because the problem could be cured through more
speech106 or redrafting the Act to "target actual . . . fraud."107
98
A lvarez, 617 F.3d at 1200-01.
Id. at 1201.
100
Id. at 1199.
101
Id. at 1215.
102
Id. at 1205.
103
See New Y ork Times, 376 U.S. at 283.
104
A lvarez, 617 F.3d at 1214.
105
Id. at 1215.
106
In stating this, the court was obviously ignorant to the fact that as of now, the Department of Defense has no
single database that any member of the public could query to validate the claim of valor by an individual.
Additionally, even if there were such a database, it would unlikely cure the false speech because general members of
the public would not be cognizant of such a tool, and may have been taken advantage of prior to being able to
confirm the claim. Further, there is a bill pending in Congress to create such a database, but it has been stalled for
several years due in part to the security and privacy concerns of the Department of Defense. See THE B ILL S UMMARY
& S TATUS: 111TH CONGRESS (2009-2010), H.R. 666, LIBRARY OF CONGRESS, http://thomas.loc.gov/cgibin/bdquery/z?d111:h.r.00666: (last visited Feb. 7, 2010).
107
A lvarez, 617 F.3d at 1211.
99
14
The circuit court held the act unconstitutional in a 2-1 decision, with Judge Bybee
dissenting.108 Judge Bybee dissented on the grounds that he believes the jurisprudence of the
Supreme Court indicates that false statements of fact are a category of speech not protected
under the First Amendment. Since the Act is a category-based restriction (false statements of
fact), not content-based, it need not satisfy strict scrutiny, according to Judge Bybee's dissenting
opinion.109
The Justice Department requested a rehearing en banc before the entire Ninth Circuit
Court of Appeals, but in a 19 to 7 vote by the non-recused judges, a rehearing en banc was
denied in March 2011.110 While the Justice Department declined to comment on potential plans
to file a petition for certiorari to the Supreme Court, Assistant U.S. Attorney Michael Raphael
did state, "[t]he court striking down a federal statute is a significant thing, and something one
might expect to eventually reach the Supreme Court."111
Despite the continued fight in the present case, Mr. Alvarez is currently serving a prison
term "for defrauding the water district after being convicted of registering an ex-wife for health
benefits with the district in 2007."112
2. Strandlof113
Rick Strandlof, under the alias Rick Duncan, falsely represented himself to the public as a
Silver Star and Purple Heart recipient for wounds received in combat in Fallujah, Iraq.114 Based
on this misrepresentation, Strandlof started a veterans' organization known as the Colorado
Veterans Alliance (CVA).115 Strandlof gave speeches in public and posted some on YouTube, all
referencing this false information.116 With his stolen valor, Strandlof solicited and raised funds
for the CVA, which was incorporated and registered in his name.117 Acquaintances of Strandloff
became suspicious of his claims. He was subsequently reported to the FBI who, after its own
inquiry, indicted Strandloff for violations of the Act. Strandloff filed a motion to dismiss the
charge on grounds that the Act infringed upon his First Amendment rights.118
The United States District Court for the District of Colorado, believing the Stolen Valor
Act to be a content-based restriction on speech, applied strict scrutiny. The district court, making
analogy to Texas v. Johnson,119 said preserving the symbolic meaning of military awards (one
108
Id. at 1218.
Id. at 1225.
110
United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011) (denying rehearing en banc).
111
Carol J. Williams, On Law, Federal A ppeals Court Strikes Down Stolen V alor A ct, Mar. 16, 2011, available at
http://www.JewishWorldReview.com/0311/stolen_valor/php3 (last visited Oct. 10, 2011). Note, however, as
indicated in A lvarez, supra note 14, a petition for certiorari was eventually filed and granted by the Supreme Court
on Oct. 17, 2011, with oral argument currently scheduled on Feb. 22, 2012. I personally commend how vigorously
the Justice Department has pursued defending the Stolen Valor Act.
112
Court: Stolen V alor A ct Unconstitutional, MILITARY.COM, Mar. 24, 2011,
http://www.military.com/news/article/court-stolen-valor-act-unconstitutional.html (last visited Apr. 1, 2011).
113
See supra note 95. For the section titled Strandlof, information in reference to facts or court opinion generally
referenced can be found in the case report.
114
Complaint at 1, United States v. Strandlof, 2009 WL 6825857 (D. Colo. 2009) (No. 09CR00497).
115
Id.
116
Id.
117
Id.
118
Strandlof, 746 F. Supp. 2d at 1183.
119
Texas v. Johnson, 491 U.S. 397 (1989) (holding a statute banning the burning of the flag of the United States as
a means to desecrate it was unconstitutional).
109
15
interest asserted by the government in this case) was not a compelling government interest
though "[s]ervicemen and women may be motivated to enlist and fight by the ideals the medals
represent."120 Additionally, the government asserted the Act advanced the compelling interest of
encouraging heroism and valor on the battlefield, which the court soundly rejected.121 The
district court found no compelling government interest and declined further analysis.
The Justice Department appealed this decision, just as it did the A lavarez case. On May
12, 2011, the United States Court of Appeals for the Tenth Circuit heard oral arguments and on
January 27, 2012, reversed the ruling of the district court, finding the Stolen Valor Act
constitutional.122
3. Robbins123
Robbins, who actually served in the United States Army from 1972 to 1975, was indicted
for violations of the Stolen Valor Act.124 According to his military records, Robbins never served
overseas or in any combat capacity during that timeframe. Robbins joined the Veterans of
Foreign Wars (VFW)125 despite never serving in a combat zone. He managed to join the VFW by
submitting falsified military records to the organization since the VFW does require
authentication of eligibility.126 He claimed to be the recipient of the Vietnam Service Medal,
Vietnam Campaign Medal, and the Army's Combat Infantryman's Badge.127 In addition to
making the false claims orally, he provided altered documents to a local newspaper purporting to
corroborate his lies. Robbins made these claims as part of his campaign for re-election to a local
political office, and even distributed campaign material outlining his fabricated military
experience.
Faced with indictment for violations of the Stolen Valor Act as a result of the exposure of
his lies, Mr. Robbins moved to dismiss on a belief that the Act, on its face, is an unconstitutional
restriction of the right to free speech under the First Amendment.128
120
Strandlof, 746 F. Supp. 2d at 1189-91.
I agree with the court on the isolated point that the Act does not advance this interest. It is important to point out
because it demonstrates the ignorance of the government attorneys that were charged with defending this Act with
respect to servicepersons in asserting such an insulting interest. Service men and women do not manifest heroism or
valor in combat in hopes of receiving an award — to do so would reflect a self-interest these heroes do not possess
— they do it out of a sense of duty to the mission, or the man or woman serving next to them, or it could be said
they react to the situation at hand as they were trained to do so.
122
A rgument Calendar, THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT,
http://www.ca10.uscourts.gov/calendar.php (last visited Apr. 1, 2011). See also Strandlof, supra note 95.
123
Supra note 96. The facts and court opinions in the section titled Robbins, unless otherwise noted, are from this
case report.
124
Robbins, 759 F. Supp. 2d at 815.
125
The VFW, after the American Legion, is the largest veterans organization in the United States. Unlike the
American Legion which is open to all veterans that served honorably during times of conflict, the VFW restricts its
membership to veterans that actually served overseas in combat zones during times of conflict.
126
Robbins, 759 F. Supp. 2d at 816.
127
The Vietnam Service and Campaign Medal only are authorized for service members that actually served in
Vietnam during the conflict. The Combat Infantryman's Badge (CIB) is an Army award presented to Army
Infantryman that actually participated in live combat action (i.e., a firefight). The first two mentioned are campaign
and service awards; whereas, the CIB is a personal award, but this is the first cited case dealing with false claims of
awards that are not valor awards or the Purple Heart.
128
Robbins, 759 F. Supp. 2d at 816.
121
16
The United States District Court for the Western District of Virginia, in following canons
of statutory construction, read the statute in a means to preserve its constitutionality. The district
court, consistent with the government's argument, concluded the statute only covers false
statements made knowingly, and it inferred the specific intent to deceive. By inferring the
specific criminal intent to deceive into the statute, the district court further ensured that false
statements made "in fiction, in parody, or as rhetorical hyperbole" are clearly not subject to
sanction by the Act; thus, there is absolutely no risk of a "chilling effect" on protected speech.129
The district court posited several reasons for the lack of "chilling effect”: first, the statements are
"made about oneself" and verifiable through objective means; second, the targeted statements do
not advocate any particular political or cultural viewpoint; third, there is no room for debate
about a clearly verifiable objective fact; and fourth, "there is no likelihood that a political
majority would be able to use the law to censor legitimate speech or discriminate based on a
particular viewpoint." The district court stated that, "read with these limitations, only outright
lies, not ideas, are punishable."130
The district court expressly disagreed with the findings of the A lvarez and Strandlof
courts. The United States Court for the Western District of Virginia first held that false
statements of fact are a category of speech unprotected by the First Amendment and subject to
general restrictions by the government.131 As such, the court opined the statute only needed to
satisfy the lesser burden of the legitimate government interest test, not strict scrutiny.
With respect to concerns of the Ninth Circuit that sustaining the Stolen Valor Act would
allow the government to proscribe regulations against lying about "one's weight or age or
smoking habits," the Robbins court said any such regulations could not be sustained in light of
the "Constitution's privacy protection." The court further inferred that regulations such as those
would have no legitimate government interest, whereas, the Stolen Valor Act supports the
legitimate government interest of preserving "military discipline and effectiveness" found in
Article I, section 8, clause 12 of the Constitution.132 As such, the court declared the Stolen Valor
Act was constitutional on its face and in application.
The ruling in the Robbins case "heighten[ed] the expectation that one of these Stolen
Valor Act cases w[ould] reach the U.S. Supreme Court."133 It was the first case where the Act
was sustained after a constitutional challenge. The Robbins ruling has been appealed by Robbins
in the Fourth Circuit Court of Appeals,134 but it is likely they, like the Eight Circuit Court of
Appeals in another case, will stay the appeal pending the outcome of the A lvarez case at the
Supreme Court.135 However, the split in the circuits was solidified when the Tenth Circuit Court
of Appeals reversed the district court in the Strandlof case on January 27, 2012136, in perfect
timing for the upcoming hearing on A lavarez by the Supreme Court.
129
Id. at 819.
Id.
131
Id. at 819-20.
132
Id. at 821.
133
David L. Hudson Jr., Federal Judge Upholds Stolen V alor A ct, FIRST AMENDMENT CENTER, Jan. 6, 2011,
http://www.firstamendmentcenter.org/federal-judge-upholds-stolen-valor-act (last visited Sept. 21, 2011).
134
Supra note 96.
135
See United States v. Kepler, No. 4:11-CR-00017-JAJ-1 (S.D.I.A. May 31, 2011), appeal docketed, No. 11-2278
(8th Cir. Jun. 10, 2011) (proceedings stayed on Oct. 20, 2011) (appeal by the Government against a ruling by the
district court dismissing the charges against the defendant when it found the Stolen Valor Act unconstitutional).
136
Supra note 95.
130
17
III. ANALYSIS
A . False Statements of Fact A re an Unprotected Category of Speech
False statements of fact that are void of any expressive idea are unprotected by the First
Amendment: they have no social value in the “marketplace of ideas.” The Ninth Circuit and the
Strandlof court stated that the Supreme Court has never held that false statements of fact, as a
general category, are outside the realm of First Amendment protection.137 They further pointed to
the list of examples given by the Court in the Stevens case, believing it was an exhaustive list of
categories of unprotected speech, and false statements of fact were not listed.138 The Stevens
Court left open the possibility of categories of speech not specifically identified and never stated
the categories listed were all-inclusive.139 Also, the Court has consistently stated the proposition
that false statements of fact are unprotected by the First Amendment in all fraud and defamation
cases.140
Alternatively, even if false statements of fact were subject to some protection, the Court
has definitively held that the sub-categories of defamation and fraud are categories not subject to
protection.141 The Stolen Valor Act was drafted and enacted with the specific purpose and intent
of curbing fraud and criminalizing fraudulent behavior contrary to the Ninth Circuit's finding.142
New York Times and Hustler rules are exceptions to the general rule that false statements
of fact are unprotected. After first stating the proposition that "[an] erroneous statement of fact is
not worthy of constitutional protection," the Court has then considered whether the "First
Amendment . . . protect[s] some falsehood in order to protect speech that matters."143 The Court
carved these exceptions from the general principle, because the exceptions were necessary to
reinforce protections of freedom of the press and public debate concerning public figures or
officials on matters of public concern. These rules were limited to the scenarios of the cases and
if false statements of fact were protected generally under the First Amendment, it would have
been unnecessary for the Court to qualify their ruling with notions of “actual malice,” “reckless
disregard for the truth,” or protection of parody, by requiring it be reasonable for a listener to
believe the asserted statement was true.
I would concede, however, that the regulated speech in question is a matter of public
concern under the "content, form, and context" test outlined by the Snyder Court.144 The content
of the statements were with respect to military awards, which are official government acts. While
the form and context will vary depending on the case, the three cited cases challenging the
validity of this statute were asserted publicly in the context of political offices or positions of
being a public figure. As such, to provide the "breathing space" required for full and robust
public debate, it is likely the Stolen Valor Act should be limited by the New Y ork Times rule for
137
138
139
140
141
142
143
144
See generally supra notes 14 and 95.
See supra note 14 and 19.
Supra note 19.
See supra note 110 (dissent).
Supra note 45.
Supra note 110, at 677.
Gertz, 418 U.S. at 340-41.
Supra note 48.
18
a showing of actual malice with respect to the false statement. The Act will still be sustained
though with the appropriate limiting construction detailed in the section below discussing the
narrow specificity principle and overbreadth.
False statements of fact are a category of speech outside the realm of First Amendment
protection; therefore, the government only would need to meet a rational basis standard, not the
strict scrutiny standard that distinguishes false statements of fact from completely private lies as
the Ninth Circuit tried to assert in A lvarez.145 The A lvarez Court found upholding the statute
allows the government to regulate lies about an individual's weight or height. The distinction is
that lying about receipt of military awards is a public lie; it is not a lie about an individual's
private life but about an act of the government. This is similar to several other federal statutes
that criminalize false statements of fact to government officials regarding citizenship status, the
death, injury, capture or disappearance of a member of the Armed Forces, and statements that
falsely represent the speaker as an officer or employee acting under the authority of the United
States.146
B. "Public Fraud"
Contrary to the Ninth Circuit's belief that the Stolen Valor Act is not sufficiently
analogous to criminal fraud statutes, the Stolen Valor Act is designed to protect the public from
fraud. The type of conduct proscribed — and I say conduct because it should not be called
speech merely because words are uttered from the mouth — is quite similar to other criminal or
civil sanctions of false representations of facts. It is true that many of the scenarios in which one
falsely represents his military decorations such as seeking Veteran’s Administration benefits on
false claims of being the recipient of the Purple Heart, or falsely claiming to be the recipient of
the Prisoner of War Medal to obtain a special license plate, are already covered under other
criminal fraud statutes. However, this does not negate the overwhelming need for the Stolen
Valor Act to protect society from the resulting harm created by false representations to the nongovernment entity or innocent citizens. The Stolen Valor Act also protects the public-at-large
from what I dub as “Public Fraud.”
By “Public Fraud” I am referring to the social mores of the United States; Americans
give a high level of respect and regard to military veterans, particularly recipients of military
awards – with the highest honors to those individuals who have earned valor awards and the
Purple Heart. By falsely representing oneself to the public-at-large as one of the individuals to
which our society has regularly treasured (outside of the Vietnam era), he misrepresents a
‘material fact’ about himself that induces the public to a certain action, most often treating him in
a higher regard than the average citizen. This inducement of action has been illustrated through
minor acts such as thanking an individual for his service, giving discounts at theaters, or buying
that individual a beer, to major acts such as the inducement to vote for a certain candidate to
public office or to hire him for a civilian job.
The Act combats "Public Fraud" by serving the Public Information Function of the First
Amendment. Like regulations on commercial advertising, the Act gives an incentive to ensure
that the public is provided with truthful information that can be used to facilitate the formations
of their own opinions or decisions. For example, the court has upheld regulations forcing
manufacturers to provide truthful information about products to help consumers make educated
145
146
See supra note 94.
18 U.S.C. §§ 1001, 1015, 1038, 912 (2011).
19
well-informed decisions. Similarly, the general public, in assessing the trustworthiness or
character of certain persons will consider a number of characteristics, including an individual's
receipt of military awards; thus, the public information function would be served by punishing
false statements of fact with respect to military awards as it is with punishing false advertisement
of products in commerce.
Sanctioning the false statement about one's receipt of military awards is akin to
sanctioning the business for falsely inducing customers to buy its product. The person delivering
the statement, "I received a Purple Heart in Fallujah, Iraq when I took a bullet for my country," is
selling a product: himself. He is knowingly asserting a false material fact to an individual or
group of people in an effort to induce the audience to "buy the product."
One need not go further than review the facts of the three cases previously mentioned
challenging the constitutionality of the Act to see direct examples of the "Public Fraud" sought to
be prevented. Alavarez sold himself as a product to the electorate to get elected to a local water
board. By claiming on numerous occasions to be a Medal of Honor recipient, Alavarez was
judged in part, or maybe even in whole by some, based on the assertion he received the Medal of
Honor. The nation's highest honors for gallantry in combat are presented to only a very few
select individuals that represent the absolute best American society has to offer. This is certainly
a material fact that was asserted to induce the community to vote for him or at least respect him.
Similar to Alvarez, Robbins published his assertion to be a Vietnam veteran and recipient
of the Combat Infantryman's Badge in a campaign pamphlet, advertising himself effectively as
one of the best products of American society, with the specific intent to deceive the public into
voting for him.
As noted by Pete Lemon, an actual recipient of the Medal of Honor during Vietnam and
supporter of the Stolen Valor Act, "pretending to have the medal can bring undeserved
rewards."147 Further, "[the medal] gives you the power to entice somebody into marriage . . . the
power to be able to join an organization, get special treatment with regards to getting tickets to a
football game, getting license plates, [or] getting preferential treatment in a job situation."
Concededly, the Act strikes at a subject matter of public concern on its face and in
application. As such, it would be subject to the New Y ork Times rule requiring actual malice to
be sanctioned. For this reason, this section is described in a manner to point out that the false
assertion of fact was made with complete knowledge of its falsity, and additionally with the
intent to deceive the public. This argument will be fleshed out further in the section covering
overbreadth below, but is mentioned here to illustrate the direct analogy with other fraud statutes.
C. Content-Neutral
Contrary to the erroneous assertions of the Ninth Circuit, the Stolen Valor Act is not a
content-based regulation. It does not regulate the fraudulent conduct because of its viewpoint.
While it does regulate only false statements of fact on a particular subject, it does not violate the
principle of content-neutrality based on the principles discussed in R.A .V . v. City of St. Paul.148
With respect to the subset of viewpoint neutrality, the Stolen Valor Act clearly does not
promote one viewpoint over another. First, it only covers objectively verifiable fact, it does not
extend into the realm of opinion. Second, the regulation does not prohibit a disgruntled veteran
147
Dan Elliott, Stolen V alor A ct Facing Legal Challenges, ASSOC. PRESS, Feb. 8, 2010, available at
http://www.stripes.com/news/stolen-valor-act-facing-legal-challenges-1.98832.
148
See supra note 22.
20
from making statements such as "I should have been awarded the Silver Star but my platoon
commander did not like me."
Unlike Texas v. Johnson where the government regulation purporting to protect the
symbolic meaning of the flag was to regulate a particular viewpoint,149 the Stolen Valor Act does
not seek to suppress any exposition of ideas or opinions for public debate about military medals,
only known falsities. The statute in Texas v. Johnson banned the practice of burning the flag as a
means to desecrate it at the same time flag regulations authorized the burning of the flag for
proper disposal of a soiled flag.150 An analogous act with respect to military medals would be to
ban the destruction of the medals. The Stolen Valor Act is not seeking to protect the physical
medal, but the meaning of the medals that results in promoting the effective operation of the
Armed Forces.
With respect to category or subject-neutrality, admittedly the Stolen Valor Act proscribes
false statements of fact based on the subject matter of the assertions. However, this distinction
within a class of unprotected speech, unlike the R.A .V . case, creates a sub-distinction based
"entirely on the reason the entire class of speech at issue is proscribable."151 To illustrate,
Congress has chosen to regulate this category of false statements of fact in recognition of the
substantial risk of fraud and the pandemic nature of the problem, not because it wanted to control
opinions expressed about military awards. As reasoned in the Renton case, the Stolen Valor Act
does not present the problem of opening up the forum of military awards to a certain viewpoint
while closing it to another; it merely seeks to prevent "Public Fraud."152 The Stolen Valor Act
does not present the dangers associated with category distinctions that the First Amendment
protects since it does not regulate the subject matter as a backdoor method of promoting a certain
viewpoint.153
D. Strict Scrutiny
While it is my contention that the Stolen Valor Act need not pass a strict scrutiny
analysis, this section is presented to illustrate that even if it did, it would be one of the few
survivors.
1. Compelling Government Interest
The Ninth Circuit conceded in its original decision in the A lvarez case that "preserving
the integrity of [the] system of honoring our military men and women for their service and, at
times, their sacrifice" is a compelling interest under strict scrutiny.154 However, the Strandlof
Court felt differently stating if preventing the desecration of the flag is not compelling then
149
See Johnson, 491 U.S. at 412.
Id. at 411.
151
Supra note 22, at 388.
152
See supra note 29.
153
For a similar argument that the Stolen Valor Act does not violate the principle of content-neutrality, see Eugene
Volokh, A micus Curiae Brief: Boundaries of the First A mendment's "False Statements of Fact" Exception, 6 STAN.
J. C.R. & C.L. 343 (2010) (reprinting of the Amicus Brief submitted by Professor Volokh for the Strandlof case
opining in part that the Stolen Valor Act was content-neutral because, though regulating a certain subject matter of
speech, it did not present the risk of suppressing certain viewpoints based on the R.A .V . rationale).
154
A lvarez, 617 F.3d at 1216.
150
21
protecting the meaning of military awards cannot be.155 Such a comparison is unfounded because
the statute at issue in the flag burning case violated viewpoint neutrality because it effectively
only prohibited the burning of the flag when it was in protest but allowed the burning of the flag
when it was intended to respect it. So the flag-burning statute, in reality, did not regulate conduct
but instead regulated a viewpoint in opposition to the government. Here, this statute does not
regulate a viewpoint because it prohibits all intentional false representations of being a recipient
of a military award.156
In a previous era, it would be more likely that a judge sitting on a bench could truly
understand how compelling the numerous interests the Stolen Valor Act furthers. Now, however,
we unfortunately live in a society where less than one percent of people currently serve in the
Armed Forces compared to "[four] percent who served during Vietnam or the 12 percent during
World War II."157 In fact, the majority of "Americans alive today do not even know anyone
serving in the military."158 Only approximately seven percent of the 311 million Americans alive
today have ever served in the military.159 Of this 21.9 million Americans, over nine million are
aged 65 years or older.160 What this means is that the vast majority of Americans may have never
met anyone currently serving in the military, so they cannot be expected to understand the
effective operation of the military. Unfortunately, judging by the court opinions and the briefs
from the arguing attorneys, most of the individuals charged with asserting or analyzing a
compelling interest do not fully appreciate what military medals mean to the effective operation
of the military and to a broader view, national security. As stated by the Court, "no governmental
interest is more compelling than the security of the Nation."161 Additionally, regulating military
medals is clearly within the textually committed power of Congress and as the Supreme Court
has articulated previously, the "constitutional power of Congress to raise and support armies and
to make all laws necessary and proper to that end is broad and sweeping."162
As previously noted, the underlying purpose of the military awards system is to promote
the morale and welfare of the fighting force by recognizing meritorious or heroic service or
sacrifice. Unlike the private sector where employers retain exceptional employees or recognize
exceptional employees through cash bonuses, there is no such concept in the Armed Forces. This
is not to say that military men and women perform their duties to seek monetary rewards like a
private sector employee, but they do it out of a sense of personal pride and duty. In recognition
of exceptional service, a young soldier or Marine may be presented with a medal to be pinned on
his chest before his peers, encouraging them to excel to the same heights. He receives no cash
bonus for that work, but instead, for a service person, he gets something better, he knows that he
made critical contributions to the team's mission. For a young soldier, sailor, airman, or Marine,
that medal is not simply a token to wear on a uniform; he will earn respect from his peers and
that medal will follow him throughout his career as a visual resume of his accomplishments. For
155
Strandlof, 746 F. Supp. 2d at 1189.
Johnson, 491 U.S. at 400.
157
Robin Beres, A merica doesn't know its military families, RICHMOND TIME-DISPATCH (Mar. 27, 2011), available
at http://www2.timesdispatch.com/news/2011/mar/27/TDCOMM01-america-doesnt-know-its-military-families-ar928949/.
158
Id.
159
Facts for Features: V eterans Day 2010, U.S. CENSUS BUREAU, http://www.census.gov/newsroom/releases/
archives/facts_for_features_special_editions/cb10-ff21.html (last visited Apr. 4, 2011).
160
Id.
161
Strandlof, 746 F.Supp.2d at 1189 (quoting Haig v. Agee, 453 U.S. 280, 307 (1981)).
162
O’Brien, 391 U.S. at 377.
156
22
the government to stand idly by while “frauds” like Alvarez strip the hard work and dedication
these medals represent would be tantamount to the civilian employer giving his meritorious
employees monopoly money instead of that cash bonus. In that situation, eventually the civilian
employees would start doing only what is necessary instead of seeking to improve. Also, morale
would drop because, in our natural state, people strive for recognition.
Again, I reiterate that service persons act and perform out of a sense of duty that cannot
be fully explained to those not of the military culture. However, young troops are fostered with a
drive to excel, to be the best. In order to maintain this vital cultural trait that facilitates the
continued improvement of best practices in military operations that make us the most
professional military in the world, occasionally the best must be recognized. People can only
continue to run the race for so long before they eventually fatigue when the race does not end.
The medal tells the young troop he is one of the best, and it motivates his peers seeing that
presentation to push themselves to even further limits so they can even better serve the mission
and overall unit cohesion and professionalism.
Much of the preceding paragraphs are aimed toward the critical importance of
maintaining the value of awards for meritorious performance not related to valorous actions.
However, much of the same does apply. For a young troop to be witness to a ceremony in which,
say, a valor award is being presented like the Silver Star, he or she will be in awe at hearing the
tale of heroism of his fellow Marine or soldier. A young Private may see a Staff Sergeant
presented with the Medal of Honor, and see his Battalion Commander salute the enlisted man
afterward as a show of respect.163 These tales will serve as a source of inspiration because it
reminds that witness what type of organization he belongs to. It instills the great sense of pride
that he represents the U.S. Marine Corps or the U.S. Navy, etc. With that, he is reminded of his
continued responsibility to maintain the high regard of our armed services through his own
personal actions while on duty or in the public on liberty or leave. That pride helps garner the
unfaltering character of service persons that we need to defend our Nation; it is a pride that will
be jeopardized if we are not able to protect the sanctity of the meaning of military awards.
The medals and decorations covered under the Stolen Valor Act are not just abstract
symbolic meaning. To view the rows of medals pinned upon someone's chest, or to talk about
them in conversation is like opening a history book. The medals tell a story of where he has
been, with whom he served, what he did, and the intrinsic character of that individual.
Further, the Act not only ensures the current effectiveness of our Armed Forces, but for
future generations to come. Many of us now serving were inspired as young boys or girls by the
stories of the heroes that came before us. Whether watching documentaries or in a high school
history class, these stories inspire countless youth to take on the great challenge and distinct
honor of serving their country in uniform. To allow the degradation of the meaning of these
awards will most certainly hinder recruitment efforts to sustain our professional military.
Lastly, the government has a compelling interest to protect the public from what I
deemed "Public Fraud." To allow the conduct proscribed by the Stolen Valor Act would expose
the public at large to deception in every corner of life as previously discussed. But, along with
that, if the conduct is not prevented, the meaning of the medals to the public will diminish
causing yet an even further distance in the relationship between the public and its military. As
163
For a reader that may have an extremely limited knowledge of military protocol, enlisted persons are required to
salute officers when greeting them, and officers of junior grade to those senior to them. But, as custom, enlisted and
officers of all rank and grade salute a Medal of Honor recipient to show a great level of respect for his heroism and
sacrifice, and for respect of the full meaning that medal conveys.
23
stated, the modern public has very little interaction or relationship with military personnel. One
of the few concepts that still connects the military to the public are the stories of valor that are
printed in the history books or represented on the movie screen. To allow the public to be subject
to these impostors will cause immense skepticism of all veterans, or they will lose faith that the
medals mean anything anymore.
It is imperative for the effective operations of the military, ultimately in maintaining
national security, that the interest of protecting the symbolic meaning of military medals and
decorations be deemed compelling.
2. Narrowly Tailored to A dvance that Interest Through the Least Drastic Means
With respect to the narrow specificity element of strict scrutiny, or a facial overbreadth
challenge, I take the same position as the court in Robbins,164 based on my analysis of the
overbreadth doctrine in section II.A.3 of this Note. The Act should be construed in a manner to
preserve the clear intent of Congress as demonstrated by the legislative history and the common
sense reading of the text of the statute in light of the context of military awards.
A narrowing construction of the statute can be made to infer the scienter requirement that
the statements be made knowingly and with the specific intent to deceive. There is both, in the
text and legislative history a "clear line" the court can draw to eliminate any potential threat to
protected speech such as parody or rhetorical hyperbole.165 Additionally, the Stolen Valor Act
applies to false assertions of fact of which parody or rhetorical hyperbole are not even considered
to be statements of fact by the Court because no reasonable listener could believe they assert the
truth.166 Specifically, Senator Conrad, the author of the bill, spoke to the effect of the Act to
prevent impostors from "using medals they have not earned . . . to gain credibility in their
communities."167 That Congress should not allow these impostors to "exploit these honors for
personal gain."168 Clearly, the line Congress was drawing was to sanction individuals that
knowingly make the false statements with the criminal intent to deceive the public or induce
them into action.
Additionally, in the context of military awards, the scienter requirement of "knowingly"
should be inferred into the statute. As discussed in the in depth discussion of military awards, it
is simply not possible for an individual to erroneously believe they have received a military
award when they have not. To reiterate, the Department of Defense has a policy against
premature disclosure of award recommendations prior to final approval so the nominee of an
award should not even know he is being considered unless an award is approved. Additionally,
approved awards are presented in a public ceremony; obviously, if an individual manages to buy
a medal from an unauthorized location he would not believe it was presented to him. Third, as
previously noted, when leaving the service an individual is presented with a DD 214 discharge
certificate that would list any and all medals, badges, etc. received while in service. Lastly, and it
should go without saying, individuals like Alvarez who never served a day in the military
obviously know they did not receive the honors in the military.
164
165
166
167
168
Supra note 96.
See supra note 43 at 884.
See Falwell, 485 U.S. at 57.
Supra note 73.
Id.
24
The Stolen Valor Act also only covers false representations about one's self. An
individual, like the commercial business selling a product presumably knows all objective facts
about himself, so no protected speech can be chilled when speaking about his own life. The Act
would not cover false claims about another individual since to do so would not likely provide the
"breathing space" needed in public debate in situations of reliance on information provided by
the original false speaker. Thus, no one is chilled from speaking in reliance on a story told by
their grandfather or others.
In view of the limiting construction and the context of military award policies and
procedures, the Stolen Valor Act is not facially overbroad because it is not feasible that any form
of protected speech would be sanctioned by the statute, let alone a substantial and real amount.
With respect to the narrow specificity and least drastic means of strict scrutiny, the Stolen
Valor Act would satisfy those elements even though it should only be subject to a rational basis
standard. The Act is likely to deter the criminal conduct it seeks to prevent and further the
interest of protecting the public from fraud and preserving the high reputation of military awards
to foster the effective operation of the military.
The Stolen Valor Act may not be the only means to further the asserted interests, but it is
the least drastic means available. Some have proposed an online military honor roll, but as noted
in footnote 106 of this Note, such a proposition has been stalled in Congress, largely in part
because it is not a feasible means to advance the interest at this time. Even if this means were
available at this time, it would be unlikely to advance the compelling interests in the same way,
however, because the public would not likely be aware of its existence. As a result, the harm
would be complete before the false statements could be cured by validation of records. This
means also would present potential privacy concerns for individual recipients that would have
information about them online. Finally, it would pose a huge financial burden and administration
cost to the government to build and maintain such a database, including the screening of each
individual award citation for classified or sensitive information.
IV. CONCLUSION
An analysis of First Amendment history and jurisprudence illustrates that false statements
of fact are not simply a category of speech subject to limited regulation by the government, but
they are actually verbal manifestations absent an expression of idea that are not protected by the
First Amendment.
Based on the analysis above, the Supreme Court should find that the Stolen Valor Act is a
constitutional instrument to prosecute "Public Fraud." The A lavarez case will be the opportunity
for the Supreme Court to specifically hold that false statements of objectively verifiable facts are
a category of speech generally outside the realm of protection by the First Amendment. A proper
construction of this statute, read in a common sense meaning of the text with the basic
knowledge of the military awards procedures outlined in this Note will clearly demonstrate that
the Stolen Valor Act only punishes an intentional disregard for the truth.
Additionally, it is my sincere hope that the Justice Department will be able to effectively
present the real concerns for the preservation of the reputation associated with military awards.
As I have alluded to previously, the Stolen Valor Act is absolutely necessary to preserve our
longstanding social mores of honoring veterans, and to ensure the efficient operation of the
Armed Forces in the defense of our Nation. Furthermore, it provides a link to preserve the
25
eroding connection and familiarity between those that serve in uniform and the general civilian
population.
In conclusion, it would be a true rewriting of our nation’s history and redefinition of
American culture to find that the First Amendment protects false statements of facts void of
ideas for the marketplace. Such a finding would call into question any regulation on verbal
conduct. It would be quite the irony if a court asserts its own value judgment against those who
serve to find the First Amendment protects verbal conduct analogous to fraud and perjury, that
dishonors those that have served the cause of liberty across the globe for our nation.
26