Saturday, April 13, 2013

REVISITING THE STOLEN VALOR ACT: MILITARY SERVICE MISREPRESENTATIONS, FALSE STATEMENTS ABOUT ONE’S OWN CREDENTIALS, AND THE RIGHT TO LIE

REVISITING THE STOLEN VALOR ACT:
MILITARY SERVICE MISREPRESENTATIONS, FALSE STATEMENTS ABOUT ONE’S OWN CREDENTIALS, AND THE RIGHT TO LIE

By:  Justin M. Smigelsky, Esq.
&
Ashley Murphy
J.D. Candidate 2013, Widener University School of Law

April 13, 2013

The General, ever desirous to cherish a virtuous ambition in his soldiers, as well as to foster and encourage every species of [m]ilitary merit, directs that whenever any singularly meritorious action is performed, the author of it shall be permitted to wear on his facings, over his left breast, the figure of a purple heart in purple cloth. . .Not only instances of unusual gallantry, but also of extraordinary fidelity and essential service in any way shall meet with due reward.

- George Washington
General Orders Issued at Newburgh on the Hudson (Aug. 7, 1782)

           In June of 2012, the Unites States Supreme Court held in a six-to-three decision that the Stolen Valor Act (of 2005), which prohibited false statements about the receipt of military accolades, is unconstitutional. Justice Kennedy announced the plurality opinion of the Court, reasoning that false statements of fact do not fall within the categorical exceptions to protected speech, and, therefore, the Stolen Valor Act would only be upheld if the Act withheld strict scrutiny. The Court ultimately concluded that the Act did not survive strict scrutiny analysis because the Government had failed to demonstrate that the statute was necessary to protect the integrity of the military system of honors.
The highly anticipated decision as to whether there is a right to lie about one’s military service demonstrated the rift between those who claim the Stolen Valor Act overreaches, proponents of a “big tent” for First Amendment protection, and the 65% of Americans that favor a law that criminalizes false claims about military honors or awards. Although it was uncertain as to how the Court would ultimately decide in the days leading up to the decision, the impact of the Supreme Court’s holding will certainly have “an impact far beyond the Stolen Valor Act.”
If adopted, the rule that Stolen Valor Act proponents advocate would have significantly enlarged the scope of existing categorical exceptions to speech protected by the First Amendment. If the Act was upheld as constitutional, knowingly false statements of fact would be proscribable and “there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status…or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, [or] is a virgin.” On the other hand, if knowingly false statements are protected, numerous statutes that currently proscribe false statements of fact would be called into question: false statements relating to the sale of any mortgage, to any Federal land bank, false statements made under oath, in any case, proceeding, or matter relating to naturalization, citizenship, or registry of aliens, as well as many other statutes pertaining to knowingly false statements. According to Stolen Valor Act proponents however, the greatest detrimental impact of striking down the Act and creating a constitutional “right to lie” falls upon the American military heroes that have received medals of valor, including the eighty-eight living recipients of the Medal of Honor, to whom we owe a debt beyond repayment.
            The sad fact is most people lie about some aspects of their lives from time to time. The problem is in distinguishing between lies that are “inevitable in free debate. . .[that] must be protected if the freedoms of expression are to have the breathing space that they need to survive,” and the knowingly false statements that are within the government’s reach. While advocates of a “right to lie” believe that alternatives to speech suppression do exist to prevent phonies from misrepresenting military achievement, and “nobody reveres true heroes less because [of] a few phonies,” it is difficult to deny that the United States is experiencing an epidemic of knowingly false statements about military service, honors, or awards, military service misrepresentations by politicians, and credential falsification.
            In February of 2013, the campaign to criminalize the act of lying about one’s military accolades, particularly when done “with intent to obtain money, property or other tangible benefit,” was revitalized when the Stolen Valor Act of 2012 was introduced into the United States Senate. The revised Stolen Valor Act was written to avoid the First Amendment issues outlined in the Supreme Court’s decision in United States v. Alvarez this past summer, in particular, the issue as to whether the Act is narrowly tailored. Senator Thad Cochran of Mississippi has expressed optimism that Congress will enact the revised Stolen Valor Act, stating “Congress came up short last year, but I am optimistic that the Senate and House will pass the legislation.”
While it may be incredible to suggest that heroism, sacrifice, or motivation of our brave servicemen and women is motivated in any way by the receipt of medals and awards, as this is antithetical to the nature of their training, we, as a nation, must protect the meaning and integrity of our military accolades from demeaning exploitation by frauds.

Notes of Interest

«      In the movies Forrest Gump, The Karate Kid, and The Next Karate Kid, actors portray winners of the Congressional Medal of Honor. Could actors/directors/writers be prosecuted under the Stolen Valor Act of 2005?
«      Three-out-of-four adults (74%) say they are at least somewhat concerned about people making false statements about their military record. Most Americans Favor Law Against Those Who Falsely Claim Military Honors, Rasmussen Reports (August 26, 2010), http://www.rasmussenreports.com/public_content/politics/general_politics/august_2010/m.
«      According to a 2002 FBI report, in the United States, approximately 500,000 people falsely claim to have a college degree, while 95% of college students in a recent survey stated that they would lie to get a job, with 41% stating that they had already done so. John E. Matejkovic & Margaret E. Matejkovic, Whom to Hire: Rampant Misrepresentations of Credentials Mandate the Prudent Employer Make Informed Hiring Decisions, 39 Creighton L. Rev. 827, 828 (2006).
«      Many individuals have been prosecuted for lying about military service, achievements, and awards. Army Reserve Major Anthony Angelo Calderone and Jesse MacBeth are two examples of recent prosecutions for knowingly false statements regarding military service. Calderone was sentenced to five months in prison for making false statements about his tours of duty, qualifications, and awards. Matthew Cox, Major Gets 5 Months for Faking Awards, Army Times (Feb. 22, 2008), http://www.armytimes.com/news/2008/02/army_fakersentence_080219w/. Jesse MacBeth was sentenced to five months in prison for falsely claiming he was a decorated war hero and making false statements to the Department of Veterans’ Affairs. Jennifer Sullivan, Man Who Posed as Military Hero Sentenced to 5 Months in Prison, Seattle Times (Sept. 27, 2007, 12:00 AM), http://seattletimes.nwsource.com/html/localnews/2003895483_webmacbeth21m.html.
«      There have been numerous instances of politicians being caught making false statements about their military service. Congressman Mark Kirk and Attorney General Richard Blumenthal are recent examples of politicians being caught “misremembering,” “misspeaking,” or “misstating” military service and commendations. When it was revealed that Kirk had taken sole credit for an award given to his former Navy intelligence unit, he said, “I simply misremembered it wrong.” Robert Costa, Can Mark Kirk Bounce Back, National Review Online (June 8, 2010, 4:00 AM), http://www.nationalreview.com/articles/229907/cam-mark-kirk-bounce-back/robert-costa. Although he was a member of the Marine Corps Reserves during Vietnam, Blumenthal “misspoke” about his service in representing that he had served “in” Vietnam. Christopher Keating, Richard Blumenthal Defends Himself On Vietnam War Statements: Says He Misspoke and Regrets It, Courant.com (May 18, 2010, 2:28 PM), http://blogs.courant.com/capital_watch/2010/05/richard-blumenthal-holds-press.html.
«      Rick Strandlof, the former executive director of the Colorado Veterans Alliance, was “front and center” during many political campaigns. He even spoke at a Barrack Obama veterans rally outside the Capitol. However, Strandlof was not really a veteran wounded by a roadside bomb in Iraq, as he originally claimed, but did spend time in a mental hospital. Michael Riley, Dems Red-faced Over Veteran Imposter, Denver Post (May 15, 2009).


Sources
  1. George Washington, General Orders Issued at Newburgh on the Hudson (Aug. 7, 1782), available at http://www.elijahchurchills.com/purple%20heart.htm.
  2. United States v. Alvarez, 567 U.S. ___ (2012).
  3. United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010).
  4. United States v. Strandlof, No. 09-cr-00497-REB, 2010 U.S. Dist LEXIS 82662 (D. Colo. July 16, 2010).
  5. Vincent Carroll, Carroll: Free Speech for Liars, DenverPost.com (Sept. 19, 2009, 1:00 AM), http://denverpost.com/commented/ci_16096264?source=commented-opinion.
  6. Most Americans Favor Law Against Those Who Falsely Claim Military Honors, Rasmussen Reports (August 26, 2010), http://www.rasmussenreports.com/public_content/politics/general_politics/august_2010/m.
  7. Proposed Brief of Amicus Curiae Eugene Volokh, United States v. Strandlof, No. 09-cr-00497-REB (D. Colo. 2010).
  8. Rees Lloyd, Stolen Valor- Stolen Constitution, NewsWithViews.com (Aug. 29, 2010), http://www.newswithviews.com/Lloyd/rees104.htm.
  9. New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
  10. United States v. Perelman, No. 2:09-cr-00443-KJD-LRL, 2010 U.S. Dist. LEXIS 85475 (D. Nev. June 1, 2010).
  11. Farid Sharaby, Government: Chapter 93: Expanding the Stolen Valor Act within California, 41 McGeorge L. Rev. 619 (2010).
  12. United States v. McGuinn, No. 07 Cr.471 (KNF), 2007 U.S. Dist. LEXIS 77059 (S.D.N.Y. Oct. 18, 2007).
  13. Order for Supplemental Briefing, No. 09-cr-00497-REB, 2009 U.S. Dist. LEXIS 122608 (D. Colo. Dec. 18, 2009).
  14. Dan Elliott, Stolen Valor Act May Go to Supreme Court After Rulings in Denver, San Francisco, Huffington Post.com (Oct. 11, 2010), http://www.Huffingtonpost.com/2010/10/11/stolen-valor-act-may-go-t_n_757799.html.
  15. Nathan Koppel, Legal Battle Over Stolen Valor Act Heats Up, Wsj Blogs (Oct. 11, 2010), http://blogs.wsj.com/law/2010/10/11/legal-battle-over-stolen-valor-act-heats-up/.
  16. Stolen Valor Act, 18 U.S.C. § 704 (2006).
  17. Mark Seavey, Lying to America: Stolen Valor Act Must Be Restored, The Hill.com  (Oct. 18, 2010), http://thehill.com/blogs/congress-blog/judicial/114871-lying-to-america-stolen-valor-act.
  18. Overturning the Stolen Valor Act, Los Angeles Times (Aug. 25, 2010), http://articles.latimes.com/2010/aug/25/opinion/la-ed-medal-20100825.
  19. Diane Saunders, Pretend Soldier Gets Prison Time for Lies, Eastern Arizona Courier (October 1, 2007), http://eacourier.com/articles/2007/10/01/local_news/news04.txt.
  20. Texas Man Who Used Bogus Marine Record to Gain Army Rank Gets 6 Months in Prison, FoxNews.com (Sept. 17, 2010), http://www.foxnews.com/us/2010/09/17/texas-man-used-bogus-marine-record-gain-army-r.
  21. Office of the Under Secretary of Defense, Report to the Senate and House Armed Services Committees On a Searchable Military Valor Decorations Database (Apr. 2, 1999).
  22. C. Douglas Sterner, Response to the: Report to the Senate and House Armed Services Committees On a Searchable Military Valor Decorations Database (1999).


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