The Stolen Valor Conundrum: How to
Honor the Military While Protecting Free
Speech
Beth F. Lloyd-Jones
I. INTRODUCTION
Members of the United States military serve our citizens throughout the
world every day, risking their lives for the nation's safety.' It is only fitting
that after incredible displays of bravery and selflessness, they are bestowed
with honors upon their return. These individuals can receive awards such as
the Bronze Star, 2 the Navy Cross, 3 and the Purple Heart.4 The most
1.
See U.S. DEP'T OF DEF., Where We Serve: Information About Defense Department
Installations,http://www.defense.gov/faq/pis/sites.html (last visited Nov. 20, 2011).
2.
U.S. DEP'T OF ARMY, REG. 600-8-2, MILITARY AWARDS 41 (Dec. 11, 2006),
availableat http://armypubs.army.millepubs/pdf/R600_8_22.pdf.
The Bronze Star Medal is awarded to any person who, while serving in any
capacity in or with the Army of the United States after 6 December 1941,
distinguished himself or herself by heroic or meritorious achievement or service,
not involving participation in aerial flight, in connection with military operations
against an armed enemy; or while engaged in military operations involving
conflict with an opposing armed force in which the United States is not a
belligerent party.
Id. Service members must be receiving imminent danger pay to qualify for the Bronze Star
Medal. Id. (citing 10 U.S.C. § 1133).
3.
U.S. DEP'T OF THE NAVY, SECNAVIST
1650.1H, NAVY
AND
MARINE CORPS
AWARDS MANUAL 2-22 (Aug. 22, 2006), available at http://awards.navy.millawards/webdoc
01.nsf/%28vwDocsByID%29/DLO60927142728/$file/1 650.1 H.pdf.
[The Navy Cross is] awarded to individuals who, while serving in any capacity
with the Navy or Marine Corps, distinguish themselves by extraordinary heroism.
. . performed in the presence of great danger, or at great personal risk, and ...
performed in such a manner as to set individuals apart from their shipmates or
fellow Marines. An accumulation of minor acts of heroism normally does not
justify the award.
Id.
4.
U.S. DEP'T OF ARMY, supra note 2, at 20. The Purple Heart is awarded "to
members of the Armed Forces of the United States who, while serving under component
153
154
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:153
prestigious award is the Congressional Medal of Honor, which is earned by
going beyond the call of duty,5 but what if someone lies about receiving
such an award? Such lies have been used to gain the attention of women, 6
to help an individual gain recognition, and used as part of financial fraud.
The First Amendment guarantees a right to free speech: "Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press. . . ."9
Does this mean, however, that individuals have a right to lie about
receiving military honors and subsequently benefitting from the prestige of
our country's highest honors? Despite the immorality of these situations,
some courts have upheld the criminalization of such speech,' 0 while other
courts have declared that a restriction on these lies would be
unconstitutional because the existing statute was not narrowly tailored to a
compelling governmental interest.II
In 2005, Congress, with the support of several military organizations, 12
proposed a bill criminalizing an individual's false claim of being awarded
various military honors: The Stolen Valor Act. 13 The Act criminalizes not
only the possession or display of unearned military medals, but also false
representations of "having been awarded any decoration or medal."' 4 As a
result, some courts have held the Stolen Valor Act to be unconstitutional
because a mere verbal claim to an honor cannot be criminalized under the
First Amendment. 15 The Ninth Circuit agrees and has found the Stolen
authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been
wounded or killed, or who has died or may hereafter die after being wounded." Id.
5. See id at 39. "The deed performed must have been one of personal bravery or
self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and
must have involved risk of life." Id
6.
Annie Karni, Man Uses Dead Army Hero's Photo to Woo Women Online, N.Y.
POST, http://www.nypost.com/p/news/national/facebook-seducer-faux gijoejCgsYyHyg
vygXOIyFQF7QO.
7. See United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010). Lying allowed
Alvarez to win a place on the Three Valley Water District Board of Directors. Id.
8. See Stolen Valor Act, 152 CONG. REc. at H8820 (statement of Rep.
Sensenbrenner).
9.
U.S. CoNsT. amend. I (emphasis added).
10.
See United States v. Robbins, 759 F. Supp. 2d 815, 817 (W.D. Va. 2011).
11.
See Alvarez, 617 F.3d at 1200; United States v. Strandlof, 746 F. Supp. 2d 1183,
1185 (D. Colo. 2010).
12.
152 CONG. REc. H8819, H8820 (daily ed. Dec. 6, 2006) (statement of Rep.
Conyers). The bill was supported by "military groups, the Veterans of Foreign Wars, the
Military Order of the Purple Heart and the FBI Agents Association." Id.
13.
See id at H8819-23.
14.
See Stolen Valor Act of 2005, 18 U.S.C. § 704 (2006).
See Strandlof 746 F. Supp. 2d at 1185.
15.
2012]
THE STOLEN VALOR CONUNDRUM
155
Valor Act unconstitutional, claiming that the government is reaching too
far into the private lives of citizens. 16 However, other courts found the
Stolen Valor Act to be constitutional because false statements of fact about
military awards are not protected under the First Amendment.17 This Note
will argue that the Stolen Valor Act, despite its morality, is unconstitutional
under the First Amendment in regards to its limitations on verbal
declarations and will propose that those who falsely claim to have received
military honors should be prosecuted under new fraud legislation.
Part II of this Note will discuss the history of the Stolen Valor Act and
analyze congressional intent for its enactment. Part III will analyze the First
Amendment and its protection of the right to free speech. Part IV will then
discuss the morality of declaring the Stolen Valor Act unconstitutional. Part
V will reconcile constitutionality with morality, by proposing a solution
under the legal label of fraud as well as urging the government creation of
an internet database. Finally, Part VI will conclude with predictions
regarding the future of the Stolen Valor Act.
II. THE STOLEN VALOR ACT: HISTORICAL ORIGINS
The Senate proposed the Stolen Valor Act in response to a growing
problem of medal imposters. In one example, a marine sergeant was able to
obtain $66 million in military security contracts through tales of his
military decorations.'" He told false stories of serving in Panama and
Somalia and receiving the Silver Star, Purple Heart, Bronze Star, and other
Air Medals, awards he never actually received.19 Representative Jim
Sensenbrenner of Wisconsin noted that although there were only 124 living
Medal of Honor recipients in 2005, more than twice that number claimed to
have earned it.20 In its findings, Congress articulated that these fraudulent
claims "damage the reputation and meaning of such decorations and
medals." 2 1 At that time, as Congress stated, the federal government did not
have adequate authority to prosecute imposters and legislation was needed
to resolve the problem. 22
In the debate in the House of Representatives, the members noted the
devaluation of the medals by labeling individuals who falsely claimed to
have earned military awards "phony" war heroes. 23 Congressman John
16.
17.
18.
19.
20.
21.
22.
23.
See Alvarez, 617 F.3d at 1204, 1218.
Robbins, 759 F. Supp. 2d at 817.
Stolen Valor Act, 152 CONG. REc. at H8820 (statement of Rep. Sensenbrenner).
Id.
Id.
Id. at 8819 (findings).
Id.
See id. (Rep. Salazar recognizing these liars as "phonies").
CRIMNAL AND CIVIL CONFINEMENT
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[Vol. 38:153
Conyers Jr., a Representative from Michigan, further described the
importance of protecting military honors because "they symbolize
overcoming an instinctual desire for self-preservation found in all of us and
summoning a level of courage rarely found but highly coveted." 24 Congress
desired to protect military members from the "phonies" who have
fraudulently benefited by becoming subjects of documentaries and
publishing best-selling biographies from their false claims. 25 The Stolen
Valor Act was subsequently passed by Congress and later signed into law
by President George W. Bush on December 20, 2006.26
Today, the Stolen Valor Act reads, in part:
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.27
The Act, therefore, criminalizes not only the possession or display of
military medals, but also false claims of possession.
The problem of military imposters has not disappeared. A study by the
Chicago Tribune in 2008 found that more than half of the claims to medals
were unsupported by military records. 28 For example, an investigation into
Who's Who and related obituaries uncovered false claims to "84 bogus
24.
Id. at H8820-21 (daily ed. Dec. 6, 2006) (providing a statement of Rep. Kline).
But even for those who did not serve, these decorations and awards have a deeper
meaning and value that far outweigh their monetary worth. In many instances,
they symbolize overcoming an instinctual desire for self-preservation found in all
of us and summoning a level of courage rarely found but highly coveted. . . . It is
for this reason that some see to bestow on themselves the symbols of honor and
sacrifice earned by others. Regardless of their rationale, those that impersonate
combat heroes dishonor the true recipients of such awards.
Id.
25.
Id. at H8821 (describing how men have profited from these false statements).
26.
The Stolen Valor Act of 2005, Pub. L. No. 109-437, 120 Stat. 3266, 3266 (2006)
(codified at 18 U.S.C. § 704(b) (2006)).
Id.
27.
28.
See John Crewdson, False Courage: Tribune Investigation Reveals Hundreds of
Unsupported Claims Regarding War Medals, Cm. TRm., Oct. 26, 2008,
http://articles.chicagotribune.com/2008-10-26/news/0810260066_1 congressional-medalstolen-valor-act-war-related-illnesses ("In all, more than half the medals for bravery
examined, including the exalted Medal of Honor, are unsupported by official military
records obtained by the Tribune from federal archives under the Freedom of Information
Act.").
2012]
THE STOLEN VALOR CONUNDRUM
157
Medals of Honor, 119 Distinguished Service Crosses, 99 Navy Crosses, [5]
Air Force Crosses and 96 Silver Stars." 29 The individuals' reasons for their
false claims ranged from "self-gratification" to impressing family
members. 30
Punishment under the Stolen Valor Act has mostly resulted in a sentence
of community service, probation, or fines.31 In some cases, however,
individuals have been sentenced up to six months in prison.32 The
maximum punishment of one year has been reserved for times when an
individual's claims or actions involve false claims to the Medal of Honor or
another top medal.3 3 However, as of 2008, the Stolen Valor Act had only
led to forty prosecutions, leaving many false claims untouched.3 4
Even more telling is that this legislation is being challenged. A Ninth
Circuit three-judge panel declared the Stolen Valor Act unconstitutional. 35
The defense then asked the entire court to review the decision en banc, but
the appeal was denied.3 6 In Colorado, a district court also found the Stolen
Valor Act unconstitutional; the Government has appealed.3 7 On the other
hand, a district court in Virginia held the Act constitutional, finding that
false speech has not been and should not be afforded First Amendment
protection. 38 This current issue is becoming a hot topic as individuals
charged under the Stolen Valor Act are claiming that they have a right to
free speech, including the right to embellish their past, 39 but does the First
Amendment protect this type of speech?
III. FIRST AMENDMENT RIGHT TO FREE SPEECH
The First Amendment gives the American people a right to freedom of
29.
Id.
30.
Id.
31.
Id.
32.
Id. For example, "a Missouri man was sentenced to 6 months in federal prison for
having lied when he claimed to be a Marine captain who earned the Navy Cross and a
Purple Heart under fire in Iraq," and "a reserve Army major was sentenced to 5 months in
prison by a federal court in Utah for having claimed a Silver Star he did not earn in hopes of
hastening a promotion." Id
33.
Farid Sharaby, Chapter93: Expanding the Stolen Valor Act Within California,41
McGEORGE L. REV. 619, 621 (2010).
Crewdson, supra note 28.
34.
Alvarez, 617 F.3d at 1218.
35.
Id., en banc denied, No. 08-50345, 638 F. 3d. 666, 666 (9th Cir. 2011); see Dan
36.
Elliott, Lawyers Say Lying About Being a Decorated Veteran is Free Speech, DENVER POST,
Feb. 12, 2011, http://www.denverpost.com/news/ci 17366672.
Strandlof 746 F. Supp. 2d at 1185; see Elliott, supranote 36.
37.
See Robbins, 759 F. Supp. 2d at 817.
38.
See, e.g., Strandlof,746 F. Supp. 2d at 1185.
39.
158
CRIMNAL AND CIVIL CONFINEMENT
[Vol. 38: 153
speech. 40 The purpose of the First Amendment has been articulated as
"foreclos[ing] public authority from assuming a guardianship of the public
mind through regulating the press, speech, and religion. To this end, the
government even with the purest of motives, may not substitute its
judgment as to how best to speak for that of speakers and listeners."4'
A. The Stolen Valor Act is Not Narrowly Tailored
Under First Amendment case law, if a challenge to a statute or
government regulation is content-based, there is a presumption against
constitutional validity, 42 and the government bears the burden of
demonstrating that the restriction imposed is narrowly tailored or that "it
targets and eliminates no more than the exact source of 'evil' it seeks to
remedy." 43
The government cannot limit speech without a demonstration that the
restriction is justified." The findings of Congress, as articulated during the
proposal and debate of the Stolen Valor Act, state that the false claims of
ownership to military awards "damage the reputation and meaning of such
decorations and medals," and federal law enforcement has previously been
limited in its resources to prosecute such liars. 45 It was proposed that this
legislation is the necessa solution. 46 Yet, it is not narrowly tailored under
a strict scrutiny analysis. Further reasoning is needed beyond the fact that
statements violating the Stolen Valor Act are lies and damaging to an
individual's reputation. The congressional intent was to prevent lies that
would devalue the military, but even this lofty goal could harm particular
viewpoints.
Under the statute, as it currently stands, even a political satire in which
one pretends to have obtained a medal has the potential to be under
investigation. As the defense argues in United States v. Alvarez, the Stolen
Valor Act is overbroad and would even apply to "a person who claimed he
had received a military decoration while playing a role in a play or
40.
U.S. CONST. amend. 1.
41.
Id.
42.
See United States v. Perelman, 737 F. Supp. 2d 1221, 1233 (D. Nev. 2010).
43.
Frisby v. Schutz, 487 U.S. 474, 485 (1988).
44.
See id; Wygant v. Jackson Bd. of Edu., 476 U.S. 267, 280 n.6 (1986).
45.
152 CONG. REc. S9215 (daily ed. Sept. 7, 2006) (providing a statement of the
Presiding Officer).
46.
Id.
47.
See Wygant, 476 U.S. at 280 ("Under strict scrutiny the means chosen to
accomplish the State's asserted purpose must be specifically and narrowly framed to
accomplish that purpose.").
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THE STOLEN VALOR CONUNDRUM
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movie,"48 even though courts protect satire and non-literal commentary as a
part of social discourse. 49 In doing so the courts "provide assurance that
public debate will not suffer for lack of 'imaginative expression' or the
'rhetorical hyperbole."' 5 0 Furthermore, the First Amendment protects
claims that cannot "reasonably [be] interpreted as stating actual facts"
about a person. 51 However, these protections are not evident in the Stolen
Valor Act; it simply criminalizes statements of "phony" war heroes that
should not be believed.
The Supreme Court requires that over-breadth "not only be real, but
substantial as well, judged in relation to the statute's plainly legitimate
sweep"52 in order to challenge a statute's legitimacy. The sweep of the law
is immense, requiring neither malice, intent, knowledge, nor actual harm.53
The over-breadth of the Stolen Valor Act is particularly highlighted by the
fact that there is no mens rea requirement. 54 The government offers no
reason for this exception to the scienter requirement that is recognized as a
principle of criminal law.5 5
Strict liability legislation is necessary to regulate public safety. 56
However, there is no congressional intent to protect the public through the
Stolen Valor Act; instead, it is the military's reputation that is the focus of
the legislation.5 7 The only reputation at stake is that created by and
originating in a government institution. In fact, Congress intends "to
protect the reputation of military decorations and medals," not an
individual or society, but an institution.5 8 The mens rea requirement is not
necessary for minor crimes, 59 but here there are significant punishments if
the violator is found guilty. 60 Violating the Stolen Valor Act can be a Class
A misdemeanor leading to jail time, probation, or a fine. 6 1 Due to the lack
of a mens rea requirement, there should not be such a significant
48.
Brief for Petitioner at 18-19, Alvarez, 617 F.3d 1198 (No. 08-50345).
49.
See Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005) (citing Levinshky's,
Inc. v. Wal-Mart Stores, Inc. 127 F.3d 122, 128 (1st Cir. 1997)).
50.
Id. (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)).
51.
Id.
52.
Broaderick v. Oklahoma, 413 U.S. 601, 615 (1973).
53.
See The Stolen Valor Act of 2005, 18 U.S.C. § 704(b) (2006)).
54.
See id.
55.
See, e.g., Morissette v. United States, 342 U.S. 246, 250-52 (1952); Dennis v.
United States, 341 U.S. 494, 500 (1951).
56.
See Morissette, 342 U.S. at 255-59.
57.
See § 704(b).
58.
Id.
59.
See Staples v. United States, 511 U.S. 600, 616-17 (1994).
60.
See id. at 616.
61.
See § 704(c)(1).
CRIAHNAL AND CIVIL CONFINEMENT
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punishment. Furthermore, there is no evidence of congressional intent to
specifically exclude the scienter requirement. 62 Lack of a mens rea
requirement within the statute is not dispositive. 63 Meeting no exception to
the mens rea requirement,64 the Stolen Valor Act is overbroad. As the
Supreme Court is reluctant to allow prohibitions on free speech for strict
liability crimes,65 the government should not be allowed to limit such false
statements of fact without a narrowly tailored purpose or a mens rea
requirement. Congress should not limit such speech for fear of creating a
slippery slope of intrusion into private life and regulation of speech.
B.
Rejection of a "First Amendment Free Zone"
In Stolen Valor Act cases, the government has argued that a right to false
statements is not protected by the First Amendment because "[p]etty
lies .. . do not promote the uninhibited marketlace of ideas and therefore
are not protected by the First Amendment."6 Such false statements are
"utterances" that "are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social
interest in order and morality."6 7 However, the Supreme Court has not
allowed the government to create a "First Amendment Free Zone." 68 In
fact, as noted in United States v. Strandlof the Supreme Court has
previously rejected the Government's encouragement of a free-floating test
upholding constitutionality of legislation when the freedom of speech is
outweighed by its cost to society:
They do not set forth a test that may be applied as a general matter to
permit the Government to imprison any speaker so long as his speech is
deemed valueless or unnecessary, or so long as an ad hoc calculus of
costs and benefits is in a statute's favor.69
See generally 152 CONG. REc. H8819, H8820 (daily ed. Dec. 6, 2006) (lacking
62.
discussion of a mens rea requirement).
See United States v. U.S. Gypson Co., 438 U.S. 422, 438 (1978) ("[F]ar more than
63.
the simple omission of the appropriate phrase from the statutory definition is necessary to
justify dispensing with an intent requirement.").
See Staples, 511 U.S. at 616-18 (1994) (describing that a strict liability statute
64.
should contain lower penalties and should not do damage to an individual's reputation).
See United States v. X-Citement Video, 513 U.S. 64, 71 (1994); Smith v.
65.
California, 361 U.S. 147, 150-54 (1959).
66.
Strandlof, 746 F. Supp. 2d at 1186 (quoting Amended Government's
Supplemental Brief at 10, filed Jan. 11, 2010).
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
67.
Strandlof 746 F. Supp. 2d at 1187 (quoting United States v. Stevens, 130 S. Ct.
68.
1577, 1585 (2010)).
69.
Stevens, 130 S. Ct. at 1586.
2012]
THE STOLEN VALOR CONUNDRUM
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In this case, the Supreme Court declared the Depiction of Animal
Cruelty Act unconstitutional as it criminalized the creation, sale, or
possession of depictions of animal cruelty holding that it is not enough that
this type of speech "lack[s] expressive value." 70 Extending this reasoning,
courts should find the Stolen Valor Act unconstitutional because even
though there is no "expressive value" in speaking a lie for one's own
personal gain, society is not harmed enough to warrant the criminalization
of this type of speech.
Furthermore, intent surrounding the creation of the Stolen Valor Act is
not meant to protect society as much as it is intended to protect the
reputation of government organizations like the military. This balancing of
protections, therefore, seems to be a moot point as the only interests at
stake are those of the government and military; the individual's interest or
society's interest is not as strong, regardless of the morally reprehensible
actions by individuals.
Instead, the protection of a symbolic interest is at play.71 Previous laws
enacted to protect similar symbolic interests have been declared
unconstitutional.7 2 In Texas v. Johnson, the Supreme Court declared a law
prohibiting flag-burning unconstitutional.73 Texas argued that its interest
was "preserving the flag as a symbol of nationhood and national unity." 74
However, the Court ruled states cannot limit speech surrounding such
symbols of national unity: "To conclude that the government may permit
designated symbols to be used to communicate only a limited set of
messages would be to enter territory having no discernable or defensible
boundaries." 75 This line of reasoning was also used to decide that the
government's interest in protecting the "Smokey the Bear" icon for fire
prevention purposes was not a sufficient reason to uphold content-based
regulation of free speech.76
Similarly, the Stolen Valor Act is protecting the government's interest in
its own institution. In fact, Congress was seeking to protect the reputation
70.
Id. at 1585-86.
71.
See, e.g., RUSSELL L. WEAVER, ET AL., FIRST AMENDMENT: CASES, PROBLEMS, AND
MATERIALS 2010 SUPPLEMENT 27 (2d ed. 2010) (describing the Stolen Valor Act as a
hypothetical case problem).
72.
See Lighthawk v. Robertson, 812 F. Supp. 1095, 1096, 1101-02 (W.D. Wash.
1993) ("The Forest Service interest in protecting Smokey Bear to aid this effort are certainly
important, but are not compelling in the context of First Amendment rights."); Texas v.
Johnson, 491 U.S. 397, 417 (1989).
73.
See Johnson, 491 U.S. at 397.
74.
Id. at 413.
75.
Id. at 417.
76.
Lighthawk, 812 F. Supp. at 1101-02 (reading the statute as intended to protect the
interest in government property).
162
CRIMTNAL AND CIVIL CONFINEMENT
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of symbolic items, specifically the military decorations and medals through
the passage of the Stolen Valor Act.77 However, as stated in Johnson, to
allow a governmental restriction on the use of government symbols is an
unconstitutional content-based restriction.7 8 Declaring some national
symbols as protected and some not protected would force judicial opinions,
and therefore force speech upon citizens. 7 9 Civilian Americans would be
forced to recognize the government's interpretation of the military awards.
Instead of interpreting for themselves the value of the military valor
demonstrated by our heroes from service stories, Americans must
recognize each medal as a government symbol of heroism. A forced
prescription of speech on the people for this symbolic protection of heroism
is not a sufficient government interest.80
Additionally, every case of a false statement does not meet the
requirements of core First Amendment values; "[i]n nearly every case, an
isolated demonstrably false statement will be outweighed by the perceived
harm the lie inflicts on the truth-seeking function of the marketplace of
ideas." 8 ' The government's argument under this balancing test would,
therefore, almost always be successful. 82 However, this is precisely the
"free zone" the Supreme Court was trying to prevent. 83 It is not enough to
solely balance the societal costs and benefits when analyzing the
constitutionality of false speech. Further analysis must be taken.
C. Lies Should be Characterized as "Speech that Matters"
The Supreme Court has recognized specific categories of speech that are
See The Stolen Valor Act § 704(b).
77.
78.
See Johnson, 491 U.S. at 420.
79.
Id. at 417 ("[H]ow would we decide which symbols were sufficiently special to
warrant this unique status? To do so, we would be forced to consult our own political
preferences, and impose them on the citizenry, in the very way that the First Amendment
forbids us to do.").
80.
See U.S. v. O'Brien, 391 U.S. 367, 377 (1968) (articulating the test for symbolic
speech: "[W]e think it clear that a government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms is no
greater than is essential to the furtherance of that interest."). O'Brien held constitutional a
law allowing the government to punish an individual for burning his draft card as it
furthered the power of Congress to raise and support armies and burning the draft card
would hinder the power. Id. This draft card law did not focus on the content of the speech,
but rather the purposes of the draft, unlike the Stolen Valor Act. Id.
81.
Alvarez, 617 F.3d at 1204.
Id.
82.
83.
See Stevens, 130 S.Ct. at 1585 (describing the balancing test proposed by the
Government as "startling and dangerous").
2012]
THE STOLEN VALOR CONUNDRUM
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not awarded First Amendment protection. "These include the lewd and
obscene, the profane, the libelous, and the insulting or 'fighting' wordsthose which by their very utterance inflict injury or tend to incite an
immediate breach of the peace." 84
Some courts have attempted to recognize false statements of fact as an
unprotected category of speech, citing to the Supreme Court decision of
Gertz v. Robert Welch which stated "there is no constitutional value in false
statements of fact." 86 Following this reasoning, the United States v.
Robbins court found that these lies about oneself are not a part of "speech
that matters" and are, therefore, not afforded the protection of the First
Amendment. 87 However, the unprotected category of speech is too narrow
of an interpretation of case law. Justice Stevens has proposed that the
court's declaration that false statements of fact are unprotected is
overbroad. In fact, the quoted language in Gertz has been held to be just a
statement of dicta. 89
Gertz was a defamation case focused on the intentional malice standard
when a newspaper claimed that the plaintiff was a communist. 90 Supreme
Court decisions have recognized no First Amendment protection for
knowing falsehoods in libel and defamation cases in order to prevent injury
to the reputation of an individual. 91 A defamation case requires that the
"false statement is the proximate cause of an irreparable harm to another's
reputation." 9 2 The Court has also held that there is no constitutional
protection for false statements made about public figures with actual
malice, regardless of defamation. 93 However, all of these decisions have
Chaplinsky, 315 U.S. at 572.
84.
85.
See Robbins, 759 F. Supp. 2d at 817; Alvarez, 617 F.3d at 1218 (Bybee, J.,
dissenting).
Robbins, 759 F. Supp. 2d at 818 (quoting Gertz v. Robert Welch, Inc., 418 U.S.
86.
323, 339-40 (1974)). "Although the erroneous statement of fact is not worthy of
constitutional protection, it is nevertheless inevitable in free debate. The First Amendment
requires that we protect some falsehood in order to protect speech that matters." Id.
87.
Id. at 819-21.
88.
Nike, Inc. v. Kasky, 539 U.S. 654, 664 (2003) (Stevens, J., concurring).
Mikovich, 497 U.S. at 19.
89.
90.
Gertz, 418 U.S. at 326-27.
91.
See Rickert v. Pub. Disclosure Comm'n, 168 P.3d 826, 829-30 n.7 (Wash. 2007).
92.
Alvarez, 617 F.3d at 1207.
See Rickert, 168 P.3d at 829-30 n.7
93.
The Supreme Court has indicated that false statements about private individuals
made with actual malice, but which are not defamatory, may not be protected
speech. However, the Court has not held that false statements about public figures
made with actual malice, but which are not defamatory, are devoid of all
constitutional protection. All of the Court's assertions that calculated falsehoods
164
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:153
required actual malice and harm through libel or defamation. 94 The cases
involving the Stolen Valor Act, on the other hand, involve individuals
telling lies about themselves, using puffery and deceit to better their own
reputations-not harming the reputations of others. There is no actual
malice requirement in the Stolen Valor Act; false declarations about
oneself are sufficient to warrant prosecution. An individual should not be
criminalized for slandering his own name. In the Stolen Valor Act cases,
there has been an attempt to criminalize the act of an individual who tells
known lies about himself, not another. Therefore, this Stolen Valor Act
legislation should not be read in conjunction with defamation law as
suggested by the Robbins decision.
Additionally, it is noted that not all false statements are denied First
Amendment protection because an "erroneous statement of fact. . . is
inevitable in free debate." 95 Some argue that despite the ruling in Gertz, "a
rule that presumptively protects false statements of fact, with exceptions for
those categories of speech that create concrete harm, would best protect the
values that underlie the First Amendment." 96 Judge Jones of Virginia
interpreted the Gertz case to "[stand] for the proposition that false
statements of fact are generally unprotected, but some speech-'speech
that matters'-is protected." 97 "Speech that matters" can be interpreted to
mean speech that encourages debate.
Neither lies nor false communications serve the ends of the First
Amendment, and no one suggests their desirability or further proliferation.
But to insure the ascertainment and publication of the truth about public
affairs, it is essential that the First Amendment protect some erroneous
publications as well as true ones. 98
Applying this same analysis, the relevant question then becomes whether
a false claim of ownership of a military medal is "speech that matters." If
the "speech that matters" analysis is applied, First Amendment protection
should still hold to protect those who make false statements about
themselves. As noted, "some lies are protected to prevent a chilling effect
about public officials or figures lack constitutional protection have been made in
the context of suits involving defamation. Thus, the statements deemed
unprotected speech in . . . [those] cases were all defamatory, as well as false.
Hence, none of . . . [those] cases are determinative as to the constitutional
protection afforded false but nondefamatory statements.
Id. (internal citations omitted).
94.
See id.
Gertz, 418 U.S. at 340.
95.
Julie K. Wood, Note, Truth, Life, and Stolen Valor: A Casefor Protecting False
96.
Statements ofFact under the FirstAmendment, 61 DuKE L.J. 469, 471-72, 510 (2011).
97.
Robbins, 759 F. Supp. 2d at 818.
St. Amant v. Thompson, 390 U.S. 727, 732 (1968).
98.
2012]
THE STOLEN VALOR CONUNDRUM
165
that would stifle protected statements," and "some false statements, such as
political, historical, or scientific speech, may be protected as speech that
matters." 99 The Court in New York Times Co. v. Sullivan held that one
cannot be punished for false statements regarding a government agency,
without "convincing clarity" of and proof of actual malice. 0 0
Allowing "Stolen Valor false statements" to live beyond the bounds of
the First Amendment would create a new exception separate from
defamation and libel law. Denying free speech protection to false
statements about oneself would generate a "generic 'false statement of fact'
exception,"101 effectively allowing Congress to criminalize any lies.
Accordingly, if the government intrudes into such behavior, particularly
when an individual simply attempts to gain familial recognition or impress
a peer for no quantifiable financial benefit, the result could be selfcensorship specifically rejected by the Supreme Court 02 and the
Constitution. If the Stolen Valor Act is held constitutional, the restriction
on making "private-life lies" could permit further criminalization, even
extending to personal ads and social networking sites. This viewpoint was
articulated by the Ninth Circuit in Alvarez, where it stated:
Indeed, if the Act is constitutional . . . then there would be no
constitutional bar to criminalizing lying about one's height, weight, age,
or financial status on Match.com or Facebook, or falsely representing to
one's mother that one does not smoke, drink alcoholic beverages, is a
virgin, or has not exceeded the speed limit while driving on the freeway.
The sad fact is, most people lie about some aspects of their lives from
time to time.103
In fact, one man has done just that. "Dylan Sorvino," also known as "Kyle
Anderson" on Myspace, not only lied about military service to entice
women into online relationships, but even used pictures of deceased
Sergeant Roberto Sanchez in his online profiles.104 Sorvino played online
99.
Robbins, 759 F. Supp. 2d at 819-20.
100.
New York Times Co. v. Sullivan, 376 U.S. 254, 267 (1964). In fact, it has been
argued that prosecutions for Holocaust denial are probably forbidden by the First
Amendment, regardless of whether or not the defendant is purely a liar or lacks knowledge.
Brief for Eugene Volokh as Amici Curiae Supporting Petitioner at 1, 5, United States v.
Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010) (No. 09-cr-00497-REB); see Steven G.
Gey, The FirstAmendment and the Disseminationof Socially Worthless Untruths, 36 FLA.
ST. U. L. REV. 1, 1 (2008).
101.
Brief for Petitioner at 16, United States v. Alvarez, 617 F.3d 1198, No. 08-50345
(9th Cir. Aug 5, 2008).
102.
See New York Times Co., 376 U.S. at 278-79.
103.
Alvarez, 617 F.3d at 1200.
104.
Kami, supra note 6.
166
CRIMINAL AND CIVIL CONFINEMENT
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poker and invited fellow women players to befriend him. 0 5 He would then
tell them stories of his adventures before "departing" overseas never to be
heard from again. 10 6 He did not lure them into relationships or sexual
trysts. 0 7 However as morally reprehensible actions like Mr. Sorvino's are,
an individual is unlikely to be prosecuted for lying on a Facebook
account.10 8 In fact, the FBI spokesman for this case said that the FBI was
unlikely to pursue an investigation seeing as no financial losses occurred
and no mention of medals was made. 109 If the government can start to limit
lies in these contexts, where would the limitations stop? The Stolen Valor
Act has the potential to start a slippery slope of regulation of private
interactions that is at odds with the foundation of First Amendment
jurisprudence.
Limitations on free speech could limit the marketplace of ideas
encouraged by the Constitution.1 10 The historical support of free speech,
including lies, has been articulated by the Supreme Court:
To persuade others to his own point of view, the pleader, as we know, at
times resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the
people of this nation have been ordained in the light of history, that, in
spite of the probabilityof excesses and abuses, these liberties are, in the
long view, essential to enlightened opinion and right conduct on the part
of the citizens of a democracy. 1
Justice Holmes articulated the necessity for this marketplace of ideas
theory; "the best test of truth is the power of 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." 112 An individual must be free
to sell himself through truth and lie in order for the competition of the
market to thrive. 113 In fact, the Gertz case, heavily relied upon by the
105.
106.
Id.
Id.
107.
Id.
See id. ("The FBI is unlikely to launch an investigation if no financial losses
108.
resulted from the fraud, a spokesman told The Post.").
109.
Id.
See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
110.
111.
Alvarez, 617 F.3d at 1203 (quoting New York Times Co., 376 U.S. at 271)
(emphasis added).
Abrams, 250 U.S. at 630 (Holmes, J. dissenting).
112.
113.
JOHN STUART MILL, ON LIBERTY 2 (Longman, Roberts & Green, eds. 1869),
available at http://www.bartleby.com/130/2.html. "Ifthe opinion is right, [individuals are]
deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost
as great a benefit, the clearer perception and livelier impression of truth, produced by its
collision with error." Id.
2012]1
THE STOLEN VALOR CONUNDRUM
167
government, recognized that the First Amendment requires the protection
of some lies to protect free speech as a whole.11 4 The Virginia district court
in Robbins recognized case law allowing the constitutional protection of
parodies and hyperbole, but rejected this case law's application to the
Stolen Valor Act.' 15 In one case, a newspaper was justified in renaming
"hostile debate" as "blackmail" under the umbrella of hyperbole.'116
Furthermore, readers are constantly exposed to the exaggerated stories of
paparazzi reporting in publications such as US Magazine' 17 or online sites
like Perez Hilton." 8 The government should not be allowed to regulate
such exaggerations that have been traditionally held as constitutional. 9
IV. THE STOLEN VALOR ACT: PUTTING MORALITY ASIDE
The government argues that Congress must be allowed to protect the
awards of the nation's war heroes, declaring these veterans "an important
part of our national treasure."1 20 In fact, one's moral compass may dictate
that you should honor the men and women who sacrifice themselves to
protect our country and democracy every day. According to the
government, protecting the prestige of the medals earned will encourage
heroism within in our country. 12 1 As a nation, we should honor those who
fight for us:
You did it for your country. We all gain when we give and we reap
what we sow. That's at the heart of this New Covenant, responsibility,
opportunity, and citizenship, more than stale chapters by which we can
fulfill ourselves and reach our God-given potential and be like them,
and also to fulfill the eternal promise of this country, the enduring
dream from that first and most sacred covenant. I believe every person
in this country still believes that we are created equal, and given by our
22
Creator the right to life, liberty, and the pursuit of happiness.1
114.
115.
Gertz, 418 U.S. at 341.
See Robbins, 759 F. Supp. 2d at 820.
116.
Greenbelt,398 U.S. at 14.
117.
See, e.g., US MAGAZINE, http://www.usmagazine.com (last visited Nov. 16, 2011)
(illustrating an everyday example of paparazzi reporting).
118.
See, e.g., PEREZ HILTON, http://perezhilton.com (last visited Nov. 16, 2011)
(illustrating an everyday example of paparazzi reporting).
119.
See Hustler Magazine, 485 U.S. at 57; Greenbelt, 398 U.S. at 14.
120.
Brief for Government at 18, United States v. Alvarez, 617 F.3d 1198 (2010) (No.
08-50345).
121.
Stolen Valor Act, 152 CoNG. REc. at H8820-21 (daily ed. Dec. 6, 2006)
(statement of Rep. Kline).
Statement by President William Jefferson Clinton in State of the Union Address
122.
(Jan. 24, 1995), availableat http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
168
CRIMINAL AND CIVIL CONFINEMENT
[Vol. 38:153
The goal is to encourage this type of motivation and to demonstrate that
heroism matters. 123 Veterans are discouraged by the Stolen Valor
criminals, arguing that those individuals have smeared and devalued their
credibility.12 Veterans even find themselves wondering if an individual
who is introduced to them has really obtained such an award, has really put
his life on the line, and really understands what it takes to be a military
hero. 125
The internet is rampant with outrage at the Ninth Circuit's decision.126
One blogger on Military.com wrote:
The fact that lying about military awards is deemed protected speech by
the Constitution all veterans swore to protect and defend is insufferable
to most veterans. The valor and meritorious service of those medals is
now up for grabs. This ruling insults all that serve and steals the honor,
valor and dignity those medals represent and that of those who honestly
earned them. And this does no harm? This is but another example of the
ignorance of many elite about the soul of uniformed service to our
country.' 27
Indeed, by allowing those who lie about military honors to remain free
from punishment, veterans are facing the devaluation of their medals.
Citizens who have served their country are often applauded and given
further recognition when they return to the normalcy of a citizen's life.128 If
1995public Japers vol ltext&docidpap text-52.pdf.
123.
See Stolen Valor Act, 152 Cong. Rec. at H8820-21 (daily ed. Dec. 6, 2006)
(statement of Rep. Kline).
124.
Mark Corcoran, Heroes, Fraudsand Imposters, ABC NEWS (Australia) (Sept. 21,
2010), http://www.abc.net.au/foreign/content/2010/s3018090.htm (quoting Doug Sterner).
See id. Doug Sterner stated:
125.
When someone says, well yes I was wounded in Iraq, do you think of that war that
many men and women who have been wounded in Iraq or do you remember Rick
Duncan who duped a whole community, a whole state and think, well I wonder if
that man or that woman really was wounded in Iraq or is this just another Rick
Duncan?
Id.
See Patrick Brady, Black Robed Marauders of the Constitution, MILITARY (Sept.
126.
8, 2010), http://www.military.com/opinion/0,15202,219892,00.html; American Legion,
Comments: Poll: Should the Constitution Protectfrom FederalProsecution Those Who Lie
About Their Military Experiences, AMERICAN LEGION (2010), http://www.legion.org/
security/89437/should-constitution-protect-federal-prosecution-those-who-lie-about-theirmilitary-ex, (quoting AF Sarge) ("The only people who deserve to stand and be recognized
are those who have earned the right ... that's all I'm going to say about that.").
Patrick Brady, Black Robed Marauders of the Constitution, MILITARY (Sept. 8,
127.
2010), http://www.military.com/opinion/0,15202,219892,00.html.
See e.g. Michael A. Memoli, Obama Marks Veterans Day with a Tribute to '9/11
128.
THE STOLEN VALOR CONUNDRUM
2012]
169
simply anyone was allowed to present such a claim, the public would be
unable to discern the veteran from the imposter. As a result, individuals
could now second guess those who claim such honors.
The American Legion, in an amicus brief supporting the constitutionality
of the Stolen Valor Act, emphasized the fact that military medals are
earned by heroic sacrifice. 129 These medals are intended "to inspire the
living by recognizing soldiers who had been wounded as a direct result of
enemy action."1 30 The arguments emphasize how these awards allow the
military to be accepted into civilian lifestyle in politics and in offices,
affecting "how they were received, befriended, talked to, and voted for."1 3 1
A "phony" war hero is a thief and receives undeserved benefits.132
Although all these previous points are true, they are not founded in
constitutional law, but in morality.
Free speech cannot rest on the government's interest in protecting the
symbolic nature of military honors, namely, heroism. Whether the public,
via Congress, wishes to protect the military is not the issue. Rather, the
question is how to protect an individual's heroism within the realms of free
speech. The overbroad Stolen Valor Act is not narrowly tailored to protect
the military as the Act intends. Criminalizing all lies about oneself, and the
military honors that one has received, creates a slippery slope for
Congressional interference into all types of speech, regardless of the
veracity of such speech.
V. SOLUTIONS TO PROTECT OUR HEROES
A.
A Proposed Stolen Valor FraudAct
A statute prohibiting fraud could be used to prosecute various
individuals masquerading as military heroes, provided they meet the
elements of the crime. There could also be legislation, such as a Stolen
Valor Fraud Act, which would allow for an individual to be prosecuted if
he or she materially benefited from impersonating a war hero. For example,
if an individual gained a government contract by claiming he had won
military awards, he could be prosecuted under a Stolen Valor Fraud Act.
Today, individuals are more likely to be prosecuted for fraud under military
generation', L.A. TIMEs, Nov. 11, 2011, http://www.latimes.com/news/politics/la-pnobama-veterans-day-20111111,0,251848.story.
129.
Brief for the American Legion as Amici Curiae Supporting Appellant at 1, 4-6,
United States v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010) (No. 10-1358), 2011 WL
5266269.
130.
Id. at 4 (quoting FRED L. BORCH, FOR MILITARY MERIT: RECIPIENTS OF THE PURPLE
HEART, vii (2010)).
131.
132.
Id. at 6.
Id. at 1, 8.
CRIMINAL AND CIVIL CONFINEMENT
170
[Vol. 38:153
law; 13 3 for example, inducing customer's consent through fraud is
punishable under military law.' 4 However, not all individuals claiming to
have been awarded medals fall within the military's jurisdiction. Ordinary
civilians claiming to have earned these awards having never served in the
military cannot be prosecuted under military law. 13 5 Under fraud legislation
today, misrepresentation of one's person is a factor taken into consideration
at sentencing. 13 6 An individual could be prosecuted for fraudulent
misrepresentations under tort law, but this requires an individual's
fraudulent representation of their intention to act. 13 A "phony" war hero
could say he is a war hero without promising to take action or do
something and could, as a result, escape prosecution.1 38
Under contract law, a misrepresentation is fraudulent:
if the maker intends his assertion to induce a party to manifest his assent
and the maker (a) knows or believes that the assertion is not in accord
with the facts, or (b) does not have the confidence that he states or
implies in the truth of the assertion, or (c) knows that he does not have
the basis that he states or implies for the assertion. 139
If there is a contract obligation at issue, the "liar" could be liable for
damages if there were a detrimental reliance upon the fact that he was a
war hero. 140 However, it is unlikely that the supposed war hero's military
commendations would be the sole factor for the plaintiffs reliance. Thus,
the defendant could not be held directly liable. Therefore, it is necessary to
create further legislation, which will allow for any "phony" war hero to be
prosecuted. This type of legislation would target those who benefit
materially from their stolen valor based lies.
The remaining issue is how to target the individuals who have not
specifically or quantifiably gained from their misrepresentations or if they
should be targeted at all if they did not materially benefit. These "phonies"
are lying for their own gratification or to gain further recognition from their
peers. One case described women induced to help a man claiming to have
been a former Nav Seal awarded with the Medal of Honor by offering him
a place to live.14 That man currently has an outstanding warrant for
133.
See 10 U.S.C. § 934 (2006).
134.
See United States v. Carr, 63 M.J. 615, 621 (A.F. Ct. Crim. App. 2006) (review
granted in part 64 M.J. 321, affirmed 65 M.J. 39).
135.
See 10 U.S.C.A. § 802 (2006).
136.
137.
See U.S. SENTENCING GUIDELINES MANUAL § 2Bl.1(b) (2010).
See RESTATEMENT (SECOND) OF TORTS § 530 (1977).
138.
See id.
139.
RESTATEMENT (SECOND) OF CONTRACTS
140.
141.
§ 162 (1981).
See id. § 349 (1981).
Doug Sterner, Comment to Stolen Valor is Offensive, But is it a Crime?,
2012]
THE STOLEN VALOR CONUNDRUM
171
domestic violence when he allegedly choked and beat the women before he
ran from the police. 142 In only certain instances did the "phony" Navy Seal
steal from the women and, therefore, materially benefit. 143 If the women
had known he was not a medal recipient, all harm may have been avoided.
Society needs a method to verify the military commendations attributed to
our military heroes and this Note suggests implementing a national
database.
B. Create a National Database
In order to ward against the imposters claiming to be decorated military
heroes, the government should create a national database of military award
recipients. Doug Sterner, a decorated Vietnam veteran, has taken it upon
himself to compile the most current database called the Hall of Valor. 144
The website contains over 120,000 valor-medal recipients. 145 Each
individual award recipient is verified by official award citations or records
from the National Archives.1 46 The government should follow Doug
Sterner's lead.
The Department of Defense, however, argues that such a database would
be expensive and incomplete.1 47 But, a 2004 study by the National
Archives stated that these records could be digitized for a cost of $12
million, resulting in $4 million of savings per year by no longer requiring
paper records and research. 148 Therefore, the database would actually save
the government money. Furthermore, the Department of Defense argues
that the records would be incomplete due to a fire destroying a warehouse
in 1973,149 but these records could be verified elsewhere. The government
merely needs to follow the example of Doug Sterner to find other methods
(Mar. 9, 2010) http://jonathanturley.org/2010/03/09/stolen-valoris-offensive-but-is-it-a-crime/.
142.
Id.
143.
See id
144.
Welcome to the Military Times Hall of Valor, MILITARY TIMES HALL OF VALOR,
http://militarytimes.com/citations-medals-awards/about.php (last visited Dec. 1, 2011)
[hereinafter Hall of Valor].
145.
Ian Urbina, In Ranks of Heroes, Finding the Fakes, N.Y. TIMEs, Aug. 1, 2009,
http://www.nytimes.com/2009/08/02/us/02imposters.html.
146.
Hall of Valor, supra note 144.
147.
U.S. DEP'T OF DEF., Report to the Senate and House Armed Services Committees
on a Searchable Military Valor Decorations Database, 1, 7 (Apr. 2, 2009), available at
http://www.reportstolenvalor.org/pdflDoD-DB-Report-04-02-2009.pdf
148.
Urbina, supra note 145.
149.
U.S. DEP'T OF DEF., Report to the Senate andHouse Armed Services Committees
on a Searchable Military Valor Decorations Database, 1, 8 (Apr. 2, 2009), available at
http://www.reportstolenvalor.org/pdflDoD-DB-Report-04-02-2009.pdf.
JOHNATHAN TURNER BLOG
CRIMNAL AND CIVIL CONFINEMENT
172
[Vol. 38:153
of verification whether by personnel or national records. 5 0
The secondary process of verification currently used by the government
is not easily accessible for every citizen, as it requires many requests for
information and much red tape. For example, Janice Miller Girando
attempted to obtain records sufficient to honor her father with a burial in
Arlington National Cemetery (ANC).151 She was told by the Internment
Services Branch of ANC that they needed actual documentation of her
father's service, but she did not have a service number.152 Girando sent two
changes of duty orders, a release of active duty order, a copy of an Army
and Navy Legion of Valor letter, and enlistment dates, but ANC needed
even further documentation.1 53 ANC required an actual citation or General
Orders.1 54 Girando was forced to turn to Sterner's database and individual
research for help.' 5 5 She was not able to obtain permission from the ANC
for her father's burial until five months after her research had begun.156
The government is a much better candidate for compiling the
information necessary to truly honor an individual. Government
institutions, such as the ANC, require independent verification. 5 7
Therefore, the government should be responsible for creating a system
which allows for the verification process to happen seamlessly.
The Department of Defense argues that a new database would be
redundant as there is already a database for those who have received the
Congressional Medal of Honor. 15 8 However, the United States has
recognized over 10 million veterans' service with awards, but only 3467
have received the Medal of Honor. 159 The same government that argues
that it is important to protect these medals as symbols of the United States
claims that it is not necessary to generate a database verifying to whom
Hall of Valor, supra note 144.
150.
Janice Miller Girando, Letter to the Honorable Ike Skelton, Chairman of the
151.
Armed Services Committee (Aug. 14, 2008), available at http://www.reportstolenvalor.org/
pdf/Sterne/20HR%20666%20Response.pdf (attached to C. Douglas Sterner, Response to:
Report to the Senate and House Armed Services Committees on a SearchableMilitary Valor
DecorationsDatabaseat 8-9).
152.
153.
154.
155.
156.
157.
Id.
158.
See U.S. DEP'T OF DEF., supranote 149.
Id.
Id.
Id.
Id
Id
159.
C. Douglas Sterner, Response to: Report to the Senate and House Armed Services
Committees on a Searchable Military Valor Decorations Database, 1, 2, available at
http://www.reportstolenvalor.org/pdf/Sterner%20HR%20666%20Response.pdf (last visited
Dec. 1, 2011).
2012]
THE STOLEN VALOR CONUNDRUM
173
these medals have been awarded.160 In order to defend the honor of
American heroes, a comprehensive database should be published.
As a final argument against constructing a database, the Department of
Defense states that publishing identifying information, such as social
security numbers or dates of births, would actually lead to more crime.16 1
However, awards prior to 1968 can be identified by a military service
number. 162 Additionally, there is no law prohibiting the publication of the
social security number of a dead military hero, allowing for another
identifying method. 163 Using these two identifiers within a database would
mean that 99% of the military awards bestowed upon veterans would be a
secondary method of assurance. 164
Such a database, made available with improved internet technology
combined with prosecution under fraud legislation, would allow for the
government to continue protecting its interest in the preservation of the
prestige of military honors without treading on the right to free speech. The
database would allow for easily accessible independent verification of an
individual's status. Fraud legislation would allow for prosecution of
individuals who materially benefit from their false statements of fact about
themselves. The combination of a database and fraud legislation would
eliminate the need for the Stolen Valor Act or allow it to be amended to the
Stolen Valor Fraud Act.
VI. CONCLUSION
The Stolen Valor Act aims to protect the value of the military awards
given to the United States' military heroes. However, there are now
challenges to the constitutionality of the Act created in 2005. In fact, the
Stolen Valor Act should be held, as the Ninth Circuit found, 165 to be
unconstitutional.
The Stolen Valor Act is overbroad and does not aim to protect a
narrowly tailored goal of the government. There is no mens rea
requirement, causing the criminalization of a false claim to military honor
to be a strict liability crime. However, there is no evidence of
See U.S. DEP'T OF DEF., supra note 149.
161.
Id. at 3.
162.
Sterner, supra note 159, at 4.
163.
Id.
164.
Id. ("Based upon these numbers, in the process of making available the citations
for the 24,048 recipients of our Nation's most-highly decorated heroes, only 320 could fall
into the category of not having unique identifiers. I further believe these numbers can be
extrapolated out to the other awards, meaning 99% of all award recipients in the database
will have a publishable Service Number or Social Security Number.").
165.
See Alvarez, 617 F.3d at 1204, 1218.
160.
174
CRIMNAL AND CIVIL CONFINEMENT
[Vol. 38:153
Congressional intent to meet the exceptions delineated by the Supreme
Court allowing for no scienter requirement, 166 even though the punishment
can extend to imprisonment for a year. 167 Congress offers no further
reasoning for the law other than it damages the reputation of a government
institution.168 Arguably, no individual is harmed. This is a substantial overbreadth that does not serve a narrowly tailored purpose as the Act
encompasses any false claims, even those in an online chat.
Furthermore, this legislation does not promote the intentions of the
Founding Fathers to create an "uninhibited marketplace of ideas."l 69 The
government is simply promoting its own institution and belief in a symbol
of the United States' military without balancing it with society's interests.
However, the government cannot enforce protection of symbols by
prohibiting free speech, as explained above. 170
False statements of facts about oneself constitute "speech that matters."
Lies about oneself do not meet any of the specific categories previously
outlined by the Supreme Court.i 7 1 These statements cannot be classified as
libel or defamation as they are knowingly false statements about oneself.
An individual should not be prosecuted for making false statements about
oneself and therefore, the individual should not be prosecuted for
improving one's reputation. False statements naturally occur in debate and
should be afforded First Amendment protection.
Allowing Congress to reach into personal claims and prohibit speech
could allow the government to prosecute an individual for selfmisrepresentation in an online profile or in a bar setting. This intrusion
steps too far into an individual's freedom of speech so protected by the
First Amendment of the Constitution. Therefore, the Stolen Valor Act
should be found unconstitutional.
In the Stolen Valor Act's stead, the government should enact fraud
legislation narrowly tailored to target those who have intentionally
misrepresented themselves by claiming to have earned a military
decoration and who have materially gained from this lie. In order to combat
those who only improve their reputation to prey on the affections of others,
the government should compile an online database listing the military
award winners of the United States.
166.
167.
168.
3266.
169.
170.
171.
See Morissette, 342 U.S. at 250-52; Dennis, 341 U.S. at 500.
See 18 U.S.C. § 704(c)(1).
See Stolen Valor Act of 2005, Pub. L. 190-437, § 2, Dec. 20, 2006, 120 Stat.
See Strandlof 746 F. Supp. 2d at 1186.
See Johnson, 491 U.S. at 417; Lighthawk, 812 F. Supp. at 1102.
See Chaplinsky, 315 U.S. at 572.
2012]
THE STOLEN VALOR CONUNDRUM
175
As these cases are heard by the Supreme Court on appeal,1 72 the Stolen
Valor Act should be found unconstitutional. Despite morality telling us that
our heroes should be protected, the government should not be allowed to
intrude into the personal lives of its citizens so as to monitor the lies an
individual is allowed to concoct. New, more narrowly tailored legislation,
and government initiatives are needed to protect the honored members of
the military who so heroically defend our constitutional rights-including
those afforded to us by the First Amendment.
172.
See Alvarez, 617 F.3d 1198 (9th Cir. 2010), cert. granted, 80 U.S.L.W. 3098 (U.S.
Oct. 7, 2011) (No. 11-210).