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Suffolk University Law Student

David Barron
Harvard Law School and former Deputy Counsel for the Office of Legal Counsel in the US Department of Justice

Linda Bilmes
Senior lecturer in public policy at the Harvard Kennedy School. Assistant Secretary of Commerce during the Clinton Administration.

Brandy H.M. Brooks
Director, Rudy Bruner Award for Urban Excellence, Bruner Foundation

Felicia Cote
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Suffolk University Law School student

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Student, Suffolk Univ. Law School

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Student at Suffolk University Law School

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Arthur Hardy-Doubleday
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Theodore Kalivas
Boston Green Blog, Dukakis Center for Urban & Regional Policy

David Linhart
Student, Boston University School of Law

Antoniya Owens
Research Analyst, Mathematica Policy Research, Inc.

Susan Prosnitz
Senior Advisor, TSA, Washington, DC

Ben Thomas
Boston Green Blog, Dukakis Center for Urban & Regional Policy

Matthew Todaro
Student at Boston College Law School

Alexander von Hoffman
Senior Researcher, Joint Center for Housing Studies

Brett Walker
Student, Boston College Law School

Margarita Warren
Student at Suffolk University Law School

Do We Need Criminal Penalties for False Claims of Military Honors?

Thursday, September 8th, 2011
By Brett Walker

Earlier this year, the Stolen Valor Act, which criminalized the false claim of military honors, was ruled unenforceable by a federal court of appeals in the case of U.S. v Alvarez. The decision was intended to preserve the right to free speech as guaranteed by the First Amendment of the Constitution, as reprehensible and vile as that speech might be. It was a fair and fitting decision, taking into account the U.S. military’s charge of defending the Constitution, but the manner in which the ruling was penned invited future attempts at similar legislation: an invitation as enticing as it is repugnant to our national values and cultural character.

In the wake of the Sept. 11, 2011 terrorist attacks and the subsequent invasions of Afghanistan and Iraq, a wave of appreciation for the military swept the country. Unfortunately, this sense of gratitude also spawned a disturbing number of imposters, one of whom was Xavier Alvarez, an elected member of a California municipal water board. During a 2007 meeting of the Three Valley’s Municipal Water District Board, he claimed to have received the Medal of Honor during a 25-year career in the US Marine Corps. In fact, Alvarez had never served in any military branch and certainly had never received the Medal of Honor – the country’s most revered award for bravery and valor.

In response to such despicable false claims of glory, President George W. Bush introduced, and Congress quickly passed, the Stolen Valor Act in 2005. The act made it a federal offense to falsely represent one’s self as having been awarded any military honor.

Alvarez was tried and convicted in a US federal court in 2008. On appeal, a closely-divided 9th District Court of Appeals declared the Stolen Valor Act unconstitutional. The court found the act to “impose a content-based restriction on speech.” In essence, the 9th District Court (whose jurisdiction covers much of the western United States) deemed the Stolen Valor Act to inexcusably infringe upon the constitutionally guaranteed right to free expression by completely extinguishing the would-be message, as opposed to a far more forgivable practice of merely restricting the time, place or manner in which the message is conveyed.

The criminalization of foolishly erroneous, but ultimately benign, words was rightfully declared contradictory to the character of our nation, where hyperbole, poetic-license, dramatization and exaggeration are recognized as legitimate tools of expression and debate. The court would have been wise to leave it at that and refrain from further extrapolation, but the verbose nature typical of legal professionals resulted in an unnecessary invitation to submit similar legislation for future review. “The Dissenters may be correct that Congress may someday be able to redress the ‘reputational harm to the military’ caused by conduct like Alvarez’s. [citation omitted] But ‘as presently drafted, the Act is facially invalid under the First Amendment.”

There was substantial dissent in the Alvarez decision. Cogent arguments were presented that false speech forfeits Constitutional protection and that the government has a “legitimate interest in preventing damage to the reputation and meaning of military decorations and medals caused by wearing such medals and decorations without authorization.”

Iowa and Nevada are among the first states to have created their own versions of the Stolen Valor Act. Unlike the federal statute, the legislation passed in those states address false claims of military honor as a specific form of fraud and thereby one of the five categories of speech the Supreme Court recognizes as unprotected by the First Amendment.

The Iowa and Nevada Stolen Valor laws require evidence of actual damage in fraud cases. However, there exists a danger that a future legislative body could theoretically create a more comprehensive version of the law available against the lonely-barroom-braggart who’s false tales of military glory did not result in any actual damages to any parties.

A more expansive theory for allowing prosecution could be grounded in the words of the father of our nation. When he introduced the Purple Heart Medal – the first medal commissioned by the United States military – George Washington said, “Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.” If that statement is accepted as evidence of pre-constitutional sentiment in the United States, then it may be established that false claims of military service have been historically unprotected speech and may continue to exercise that status. Alternatively, in U.S. v McGuinn the Supreme Court upheld a federal law criminalizing the unauthorized wearing of military uniforms, but not necessarily verbal boasts of the same nature. Finally, other professions already enjoy an ability to impose an absolute prohibition on false claims of qualifications. For instance, Ch. 112, Sec. 9J of the Massachusetts General Laws criminalizes false claims of qualifications as a physician assistant.

Possibilities abound for overzealous veteran supporters to potentially pave the proverbial path to Hell with their good intentions by circumventing the learned decision of the court in the Alvarez case and establishing a more durable, but equally inadvisable alternative to the original Stolen Valor Act. Extinguishing the protection of any form of speech has enduring consequences and should only be undertaken if absolutely necessary to sustain our way of life, not just to accommodate a cultural development. The brave decision of the Court of Appeals for the Ninth Circuit must be respected as true to the Constitution, not a mere obstacle in the pursuit of imposing a rule of morality.


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