Stolen Valor Act Unconstitutional ?

The SWJ Blog reported this yesterday, Stolen Valor Act Unconstitutional (Denver Post article). Here is Judge Blackburn's opinion.

The judge is a Bush 43 appointee (not especially relevant, except to discount a vast "left wing conspiracy").

Here is what is at legal issue:'

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Defendant is charged with violating the Stolen Valor Act of 2005, which amended 18 U.S.C. § 704. As originally enacted, section 704 criminalized the wearing, manufacture, or sale of unauthorized military awards. See 18 U.S.C. § 704(a). Congress, however, felt that this statute was inadequate to protect “the reputation and meaning of military decorations and medals.” Pub. L. No. 109-437 § 2, 102 Stat. 3266, 3266 (2006). The Stolen Valor Act expands the protections of section 704 to make it crime to

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... falsely represent[] [oneself], 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 ....

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Id. § 3 (codified at 18 U.S.C. § 704(b)). Section 704(d) provides enhanced penalties for violations implicating certain types of military honors, including, of particular relevance in this case, the Purple Heart and the Silver Star. The Amended Information charges defendant with falsely representing himself to have been awarded a Purple Heart on four different occasions in 2006 and 2009, and falsely representing that he had been awarded a Silver Star on one occasion in 2009. By the instant motion, defendant seeks to dismiss these charges, arguing that the Act is facially invalid as a content-based restriction on free speech.

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You can follow through the judge's opinion and decide on its merits or demerits. His basic argument is that Congress cannot make a false statement, standing alone, a crime; and that there are other non-criminal avenues of redress (which Congress found to be inadequate).

Another Stolen Valor Act case is before the Ninth Circuit (from which, anything is possible). Judge Blackburn's opinion applies only to his own district court.

Comments welcome. I think the decision is a lousy one - akin to the 4th Circuit's opinion in the Marine funeral case (also based on bad First Amendment analysis).

Although I find such cretins odious, I personally don't think their fraud should be singled-out for criminal sanction.

unconstitutional (2-1 decision), in US v Xavier Alvarez.

The majority raises an interesting discussion point:

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The rule the government and dissent urge us to apply in order to uphold the Act would, if adopted, significantly enlarge the scope of existing categorical exceptions to First Amendment protection. All previous circumstances in which lies have been found proscribable involve not just knowing falsity, but additional elements that serve to narrow what speech may be punished. Indeed, if the Act is constitutional under the analysis proffered by Judge Bybee, 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. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.

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There is (or at least "should be") a distinction between a law regulating speech (a lie of some kind) that is simply "unwise"; and another such law that goes further and becomes "unconstitutional". The question is where to draw the line in this "era of absolutism".

Remember the ancient First Amendment example of a constitutional law that prosecuted a person who falsely yells "fire" in a crowded theater.

The dissent by Judge Bybee (yes, he of co-fame with John Yoo and the memos) sums the situation as follows:

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In sum, the better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact - as a general category - fall outside of First Amendment protection except in certain contexts where such protection is necessary “to protect speech that matters.” If a false statement does not fall within one of these exceptions, the general rule applies. And even in the exceptional contexts, a false statement that is neither satirical nor theatrical is unprotected if it is made with knowledge or reckless disregard of falsity.

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I'll cast my lot with the dissent on this issue.

Regards

Mike

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I'll cast my lot with the dissent on this issue.

Regards

Mike
__________________

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I am with you...

Hang the bastage with a blue and white starred ribbon

Do we really need to enact laws against every possible grievance? Jane Fonda got away with treason against her country, and that is a hell of lot more important than a few maggots pretending to actually be men. We have a sick church group that torments families at military funerals calling their fallen loved ones homosexuals. That crosses the line much further than some insecure piece of crap pretending to be a war hero.

In my opionion we just go back to outing these pathetic pieces of crap, and why we're at it just give them a good ole fashioned ass kicking. We have always had maggots like this in our society, and we really don't need to overcrowd our prisons anymore than they already are over this this, instead put them in the emergency room with a few lumps and then move on. They're not worth much more effort than that.

Since my moral and ethical compass (Tom) has chimed in, I'll stick with the dissent. However, the dissent does not say that we "have to have" (or even "should have") criminal laws against every falsehood.

It strikes me as largely a truism that we should not have criminal laws against most of the "strawmen examples" cited by the majority:

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...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.

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However, what I (as something of a small "l" libertarian) think we "should have" is not necessarily what a majority in this country believe we "should have" (and what the governments elected by them enact).

I envision the spectrum of "speech regulation" as involving one end zone where a consensus exists that the regulation is totally wise (clearly constitutional), and another end zone where a consensus exists that the regulation is totally unwise (clearly unconstitutional).

In between those consensus end zones, is a very large playing field where the issue is what regulation can be applied even though it is "unwise" (though not, by consensus, "totally unwise"). Remember that there should be a presumption in favor of legislation, unless you wish to have some sort of unlimited judicial review (a concept rejected by the Founders).

What is the First Amendment really about ? For that, look to the majority and its citation of the Alien and Sedition Act:

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Hence the historical rejection of the validity of the Alien and Sedition Act, which “made it a crime, punishable by a $5,000 fine and five years in prison, ‘if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress . . . , or the President . . . with intent to defame . . . or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States.’ ” Id. at 273-34 (quoting Sedition Act of 1798, 1 Stat. 596).

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The "Alien" portion of the Act held up fairly well; but the "Sedition" portion ran against the US colonial tradition adverse to the British criminal libel (sedition) laws.

Why ? After all, the Sedition part (applicable to US nationals) required a triple whammy proof: falsehood, scandal and malice - as well as an intent to excite "the hatred of the good people of the United States" as one alternative.

If you go back to the political football that the Sedition clauses generated in the Adams and Jefferson administrations, you will find that folks on both sides were playing hardball, verging on insurrection; and that harm was certainly intended (and sometimes effected).

IMO: The reason the Sedition clauses were disfavored was that the speech prohibited struck to the heart of our political system - but without crossing that line where that speech became a "clear and present danger" as part of an insurrection. As such, mostly unregulated speech in this vital political area provided a safety valve against a transition to actual insurrection.

To the 9th Circuit majority, harm, intent and malice are all critical factors. Presumably to them, the greater the harm, intent and malice, the more that legislation can regulate speech. Yet, that is not the history of our First Amendment going back to Zenger. Certainly, the First Amendment looks to "freedom of the press" (not unlimited); but also looks to political freedom and assembly, religious freedom and also, though not expressed in the amendment, economic freedom. Those are the speech areas in which regulation is most suspect; and those are the areas that "matter" (as Jay Bybee writes).

In the 9th Circuit case, the interference of the Stolen Valor Act with politics, religion and economics is not apparent to me; except in one respect. Alvarez made his false statement in a political context. Some politicians enhance their service records (or invent them) - just as the anti-Adams and anti-Jefferson folks libelled those office holders (and probably lied about their own credentials). So, lying is part of US political advancement - and is best met by counter-facts telling the truth.

So, I can't totally agree with Jay Bybee that:

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The principles in New York Times do not extend to false self-promotion. Nor do these principles extend to false self promotion by public officials - that is, to officials who portray themselves in a false but positive light. Public discourse requires that citizens are equally free to praise or to condemn their government and its officials, but I can see no value in false, self-aggrandizing statements by public servants. Indeed, the harm from public officials outright lying to the public on matters of public record should be obvious. If the Stolen Valor Act “chills” false autobiographical claims by public officials such as Alvarez, our public discourse will not be the worse for the loss.

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I also "see no value in false, self-aggrandizing statements by public servants." But, I also cannot see where those statements should be made criminal - especially in our present "era of absolutism" where "I gotcha" is the prevalent mantra.

So, perhaps, we should have a limited, qualified constitutional privilege for lying, venal politicians - and simply rely on outing them as both Entropy and Global Scout have suggested.

Regards

Mike

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...I can see no value in false, self-aggrandizing statements by public servants. Indeed, the harm from public officials outright lying to the public on matters of public record should be obvious.

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The judge improperly frames the issue. It's not a matter of whether the speech has value. It's a matter of whether there is sufficient harm for the government to justify infringing upon the speech. The government failed miserably in demonstrating such harm.

Now, if you'll excuse me, I need to go to a ceremony honoring me as one of the few remaining living recipients of the CMoH.

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from Schmedlap
It's a matter of whether there is sufficient harm for the government to justify infringing upon the speech.

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incompetent rabble-rousers would skate and only competent rabble-rousers would be prosecuted.

So, Martin Luther King was competent and his speeches were certainly intended to do harm to the segregated institutions upheld by the state governments in the states where he was speaking. Thus, MLK's speech should have been infringed, but Uncle Tom's wasn't because it meant no harm (and couldn't cause any) to those institutions ?

I don't think harm enters the picture until speech becomes part of insurrection. Effective, unpopular political speech deserves more protection than ineffective, political babble that the majority regards as harmless to its established institutions.

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Since the "CMoH" does not exist (though the MoH and the CMoHS both exist), you are safe from prosecution. :D However, beware of wearing the SCoH (especially in some parts of Virginia), unless you fought in the War Against Northern Aggression. ;)

Best

Mike

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Originally Posted by Schmedlap

The judge improperly frames the issue. It's not a matter of whether the speech has value. It's a matter of whether there is sufficient harm for the government to justify infringing upon the speech. The government failed miserably in demonstrating such harm.

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There goes Mr. S. Lap talking like a lawyer again ...

The judge correctly identified the law in question as regulating speeched based on content (content based regulation).

As such, the proper legal standard is strict scrutiny:

1. The government must demonstrate a compelling government ineterest in regulating the speech and
2. assuming the government has demonstrated such a compelling interest, it must show that the regulation is narrowly tailored to meet such an interest.

The government (rather poorly in my opinion) failed to demonstrate a compelling interest, and as such the judge never had to go on to consider the above second element.

It remains to be seen whether other, smarter, more motivated government lawyers can properly identify to higher courts a compelling interest in regulating the type of speech here.

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Lecturer William G. Hillar entranced audiences as a globe-trotting, highly trained, retired Green Beret colonel whose attempt to rescue his daughter from kidnappers inspired the hit movie, “Taken.” But it was not really his life, it was all lies.

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http://www.armytimes.com/news/2011/0...guilty-040911/

that took Hillar down (mentioned in the Army Times article), William G. Hillar Special Forces FRAUD (32 pages).

Congrats to the folks at Professional Soldiers who contributed to this result.

Regards

Mike

So... Does this mean it should be legal for me to dress up like a police officer, drive a police looking car and pull over good looking women and offer them the opportunity to give sexual favors in return for not getting a ticket?

It's just "content-laden speech" after all.

Some judges are just stupid. They were lawyers once, after all....

I think there is a fundamental difference between impersonating an officer in order to commit a sex crime and pretending to have been a soldier in order to impress people.

(I'm leaving out the adjective "fundamental") between a person pretending to have been a soldier in order to impress people and that only, and a person pretending to have been a soldier in order to impress people to obtain money or other lucre from them. Hillar fell into the second category.

Drew made a useful point - even though it was made for another purpose re: 2nd sentence :) - in this comment:

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from 120mm
Some judges are just stupid. They were lawyers once, after all....

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In truth, most all judges are lawyers and remain so while they are judges. Military judges have a triple whammy; they are judges, lawyers and military officers. Imagine the possibilities for stupidness in that combo - but also the possibilities for smartness.

The point is that everyone (non-lawyers included) carries with them a certain perspective on what the "Law" is. I'm not going to go into a long song and dance about how I would use that in legal strategy and tactics (yippee). But, the "Law" to any individual (if he or she admits it) is not the written law, whether in statute or court decision. It is far more than that.

So, the "Law" may be shaped by the decision-seeker (usually a lawyer) and by the decision-maker (usually a judge or jury). Now, in the Stolen Valor cases (and in the Marine Burial case), I felt that the "Law" (my view) upheld constitutionality and said so in SWC posts. Other folks (lawyers and non-lawyers) felt differently and so did SCOTUS.

In Hillar, the prosecutor shifted gears and, by going the "wire fraud" route, shaped the "Law of the Case". The judge agreed (since the indictment stood); and Hillar pleaded guilty:

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As part of his plea, Hillar agreed to pay back $171,000 he made by lecturing universities, soldiers, and federal and local law enforcement agencies while falsely claiming he was a counter-terrorism expert and had earned doctorate from the University of Oregon.

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Bottom Line: The "Law of the Case" is different from the "Law".

Regards

Mike

Mike:

Just to be fussy, the "fundamental" difference is between impersonating a police officer and pretending to have been a soldier.

If I get your point right, you are saying there is a difference between what people perceive as being just and how the statutes are written. You can use the perception of justice to affect how the statute is interpreted or applied. Is that it?

but this is part of it:

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from Carl
f I get your point right, you are saying there is a difference between what people perceive as being just and how the statutes are written. You can use the perception of justice to affect how the statute is interpreted or applied. Is that it?

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It will take more than a sound bite - and I want to avoid technical Bravo Sierra.

I'll play with this a bit and come up with a summary of "trade secrets" on "shaping" the "Law of the Case".

BTW: my construct is right for me. I'm a "technician" and not an "artist", which means that I apply lots of preparation to open up avenues to intuition. In short, I rely on perspiration, not inspiration.

That has nothing to do with destructive speed ("tempo") in the courtroom - I like blowing away "an artist's" arguments. :) Other folks will have completely different ideas.

Regards

Mike

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Originally Posted by jmm99

- and I want to avoid technical Bravo Sierra.

Regards

Mike

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I really love it when you use the phonetic alphabet to explain technical terms!

I must've been an influence at one time or another :p

indeed, you have been.

The phonetic alphabet seems to add a bit of class to the public presentation - not much class, mind you - but some. ;)

To say nothing of using such jargon as "blowing away" the other guy's argument. :D

Regards

Mike

I think the arguments were made incorrectly to the court and by congress. The wearing of awards, or claim to awards, ribbons or other significant meritorious or valor certifications are not a free speech issue. They are a certification issue that may result in monetary or significant compensation including assuaging license fees for vehicles (Pearl Harbor Survivor plates, MIA Plates, Disabled Veteran), increased consideration for employment (veterans preference, Purple Heart awardee). As such to even merely make claim could be considered a fraudulent act. Further the simple claimant in doing so even outside of state sponsored programs could be in conspiracy to defraud through claim to licensure or certification of experience they do not have.

No. Not an attorney but was quizzed daily by a judge.

you ancien LEO, good to see you - our hearts are in the same place.

A bit North of you, we Michiganders have a statute:

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THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
750.218 False pretenses with intent to defraud; violation; penalty; enhanced sentence based on prior convictions; “false pretense” defined.
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(9) As used in this section, “false pretense” includes, but is not limited to, a false or fraudulent representation, writing, communication, statement, or message, communicated by any means to another person, that the maker of the representation, writing, communication, statement, or message knows is false or fraudulent. The false pretense may be a representation regarding a past or existing fact or circumstance or a representation regarding the intention to perform a future event or to have a future event performed.

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So, what you describe here:

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from selil
As such to even merely make claim could be considered a fraudulent act.

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as a "fraudulent act", is clearly a "false pretense" as defined by 750.218.

Now, that statute does limit the criminality of "false pretenses" to five general situations ([#]s added to point up elements) :

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Sec. 218. (1) A person who, [1] with the intent to defraud or cheat [2] makes or uses a false pretense [3] to do 1 or more of the following, is guilty of a crime punishable as provided in this section:

(a) Cause a person to grant, convey, assign, demise, lease, or mortgage land or an interest in land.

(b) Obtain a person's signature on a forged written instrument.

(c) Obtain from a person any money or personal property or the use of any instrument, facility, article, or other valuable thing or service.

(d) By means of a false weight or measure obtain a larger amount or quantity of property than was bargained for.

(e) By means of a false weight or measure sell or dispose of a smaller amount or quantity of property than was bargained for.

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Part (c) [itals] covers a Hillar-type scheme.

The statute as written does not expressly cover some of your examples:

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from selil
... monetary or significant compensation including assuaging license fees for vehicles (Pearl Harbor Survivor plates, MIA Plates, Disabled Veteran), increased consideration for employment (veterans preference, Purple Heart awardee).

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but a well-inclined judge could fit the statute to the facts if "false pretenses" were used to, say, apply for a license plate. Or, the statute could be amended to add cases to the present five general cases.

But, what if person does not take the step of applying for something. We are then into the law of attempts - not a conspiracy which requires two or more persons.

So, we look to the Michigan statute on attempts (emphasis added):

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THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931
750.92 Attempt to commit crime.

Sec. 92. Attempt to commit crime—Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:
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[punishments depend on the punishment for the underlying offense]

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Certainly wearing the medal, uniform, etc. are acts. An underlying "intent to defraud or cheat" probably would follow or not follow from the context of the act. You don't have to be a lawyer to dream up facts that would or would not make an "act towards" and would or would not be "intent to" in the context of that act. In fact, those issues are typically questions of fact that are decided by juries, not judges.

Thus, as you say, there may be room to shape the "Facts of the Case" and the "Law of the Case".

Regards

Mike

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Originally Posted by carl

I think there is a fundamental difference between impersonating an officer in order to commit a sex crime and pretending to have been a soldier in order to impress people.

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Your understanding of the Stolen Valor act is flawed.

If I impersonate a military veteran, in order to get something in return, how is that different from impersonating a police officer? Or a fireman to gain access to a home to rob.

The ####stain who beat his charges gained social status, job and monetary rewards by impersonating a military veteran.

I fail to understand the difference.

120mm,

On the cited Army Times report the fraudster was dealt with:

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Hillar, 66, of Millersville, Md., pleaded guilty March 29 to a single count of wire fraud in a federal court in Baltimore. As part of his plea, Hillar agreed to pay back $171,000 he made by lecturing universities, soldiers, and federal and local law enforcement agencies while falsely claiming he was a counter-terrorism expert and had earned doctorate from the University of Oregon. He also agreed to perform 500 hours of community service at the Maryland State Veterans Cemeteries.

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I would hardly call that, citing you:

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..who beat his charges..

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Given his age I'm not surprised a non-custodial sentence was given and being revealed as a fraud, with the sentence will be enough for him. Fully accept his sentence may not be enough for veterans and those on active duty.

On a lighter point I trust that you earlier post about:

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...it should be legal for me to dress up like a police officer, drive a police looking car and pull over good looking women and offer them the opportunity to give sexual favors in return for not getting a ticket..

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Is: a) not an admission to past behaviour and b) any statute of limitations has now expired, if so behaviour occurred. So you may now return to the USA from that other place you love.

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Originally Posted by 120mm

Your understanding of the Stolen Valor act is flawed.

If I impersonate a military veteran, in order to get something in return, how is that different from impersonating a police officer? Or a fireman to gain access to a home to rob.

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My understanding of most things is flawed.

A police officer has legal authority to detain people. He has police powers, statutory police powers. When someone impersonates a police officer, he is availing himself of official power falsely and can do a lot of harm with that falsely acquired power. So I figure that is why there are statutes prohibiting impersonating a police officer, to keep people from doing harm to others because others think the impersonator is backed up by legal authority. For example, you gotta stop if a police car turns on its' red lights. If somebody installs red lights on his car, impersonating an officer, and gets behind you and turns them on, you will stop where otherwise you would not have. People have done a lot of harm doing just that.

Someone claiming veteran status has no official powers at all. None to my knowledge. He can't pull up next to you and wave his DD 214 in your face and expect you to pull over. He may be falsely acquiring social status of some kind, but if he gets that it is given because somebody wants to, not because he is obligated to by law. If somebody claims vet status to defraud the gov, that is already covered under criminal law.

That is how I figure it. Mike, you can now tear that apart.

if you want, I'll tear you apart; but since I don't want to, I won't. Too many people are tearing each other apart on too many threads - it must be something in the water from the new SWC water cooler.

Anyway, here is your impersonating a LEO example:

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If somebody installs red lights on his car, impersonating an officer, and gets behind you and turns them on, you will stop where otherwise you would not have.

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You are including acts in the example - so it goes beyond speech.

Suppose a guy (in civvies) says to you, in the course of a normal conversation, "I'm a Michigan State Trooper".

Or, in the same type of situation, he says, "I'm retired Special Forces".

In both cases, he is neither - so, in each case, there is a "false pretense".

I see a distinction where there are acts accompanying the false pretense.

The question is what difference should that distinction make.

Regards

Mike

Mike:

You can tear my attempt at legal reasoning apart. I don't mind that a bit because I'll learn from it. When lawyers tore me apart for real I was embarrassed but didn't hold it against them because they were doing their job and helping me to learn.

To my mind the addition of the act makes the difference, especially an act that takes advantage of people's obligation to obey another law-you must stop when a police car turns on his lights. That is so serious a matter that it requires a criminal statute to punish and discourage it.

Claiming to be a ex military whatever (a guy I know told me everybody he met in Texas of a certain age group was a sniper in 'Nam, part of the famous Texas Volunteer Sniper Division) might get you social status, but nobody is obligated to give you that status. In certain circles it might go against you. So that is not so serious a matter as to require a statute. It is one of those things that can be handled by informal social sanctions, like the group that exists to expose all the phony ex-SEALs out there.

Sometimes, there oughn't a be a law.

for enacting a law in the first place.

Those will vary from place to place. Let's look at this from a Hancock, MI perspective - which you've some handle on.

If I had to characterize veterans status here (where I'm typing this), I'd say it amounts to an intangible property interest - created over the period of military service via the experiences and tests of that service; and perhaps leaving a body part or two behind.

I'm not talking about VA benefits or the like; and not about social status. What I'm saying is that the guy who walks in here wearing a Marine Corps League jacket, or on other days, a USMC "Sniper" jacket, earned and retained something (as I said it is an intangible) that has a value that cannot be expressed in monetary terms. All property rights, tangible and intangible, deserve to be protected from impairment - that is a basic beyond doctrinal law.

So, that, in my noggin, is what the Stolen Valor Act is really about. So, yeh, what I'm saying now ain't legal analysis - it's a belief, with which there is no argument.

Go down the road 100 miles to Marquette - perhaps a different set of beliefs. Go down the road 500 miles to Ann Arbor - probably a different set of beliefs.

If you'd ask me how I'd vote on the Stolen Valor Act - I'd vote "yes" (and would re-enact it just to let the courts know that I disagree with the decision).

Regards

Mike

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Originally Posted by jmm99

If I had to characterize veterans status here (where I'm typing this), I'd say it amounts to an intangible property interest - created over the period of military service via the experiences and tests of that service; and perhaps leaving a body part or two behind.

I'm not talking about VA benefits or the like; and not about social status. What I'm saying is that the guy who walks in here wearing a Marine Corps League jacket, or on other days, a USMC "Sniper" jacket, earned and retained something (as I said it is an intangible) that has a value that cannot be expressed in monetary terms. All property rights, tangible and intangible, deserve to be protected from impairment - that is a basic beyond doctrinal law.

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I understand your point, but I have some questions because I just don't know the applicable law.

To a layman, property equates with the ability to sell something. If you can sell it, it's your property. If you can't sell it, it's not. So if you can't sell it, and you can't sell your status as a veteran, is it property? That is basically a question about whether property equates to the ability to sell is valid or to simple I guess.

Second, is a property right a property interest and how would they relate?

Hi Carl,

My point is not that a body of law (simple or esoteric) states that military service gives rise to an intangible property interest that should not be impaired by imposters.

My point is that I believe that military service gives rise to an intangible property interest that should not be impaired by imposters.

What is derived in and from military service is a system of beliefs and values. Some of those beliefs are extremely strong - e.g., belief in a band of brothers such that one will die that the other may live. As such, those beliefs and values tend to be collective and collaberative - and they are very intangible.

These basic links may not be helpful at all - Intangible property and Intangible asset. Both speak of "competitive intangible property" and "competitive intangibles" - which are not "up for sale", but which are one factor in gaining Competitive advantage.

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As stated, I have a belief in a set of beliefs. So, anyone is free to reject - unless, of course, we have a real vote and I win. :D

That brings us to another point - which ties into our discussion about "rule of law" and "rule by law". The Stolen Valor Act was enacted according to our usual constitutional process. So, as close as we can get, it was a statute ordained and established by the People; and thus, a "rule of law".

Once it was enacted, a minority special interest group headed into the Federal courts to set it aside. Same for the Marine Burial Case.

Since the Federal courts are not elected, finding the People in that process is more difficult. In fact, that process appears more "rule by law" than "rule of law".

We tolerate that judicial process because it adds another set of checks and balances to our constitutional equation - and because it used ti occur but rarely until my lifetime. That is just another intangible to think about.

Regards

Mike

Mike:

I believe a person should be judged on what they do and what they have done, as individuals. Their accomplishments are greater if they are harder and are judged thusly. That accomplishment is not diminished if Mr. Faker falsely claims to have done they did. I have never heard anybody say that their accomplishments were truly diminished by Mr. Faker. They still did the deed. What seems to be the main motivation is resentment toward Mr. Faker for getting something Mr. Faker didn't deserve. There is no indication that Mr. Faker's false claim costs the real deal anything. His reputation is not diminished, if it was Mr. Faker would have given up the game by now as unproductive. There have been many cases like this and I don't believe the respect and admiration for people with accomplished military records has been diminished.

What should be derived from military service is an admirable set of beliefs and values, a set that is professed by the military. That set of beliefs and values is internalized by only some of the people who serve, not all. They may be able to fake it but they don't live it. In spite of this, that value system is still held up as the ideal and is admired. People know that an awful lot of guys don't live up to the ideal but that doesn't do fatal damage to the reputation of the institution or the people who were in it. If bad behavior by people in the institution doesn't fatally damage the respect for the service records of the good ones, I don't see how a Mr. Faker can do serious damage. People are discerning enough to make the distinction between good and bad troops and I think they can even more easily make the distinction between a real troop and Mr. Faker.

It bothers me a little bit that the reputation of person a can be thought to have been impunged (sic) by person b's actions when person b's actions were not related to person a's actions at all. Person b didn't lie about person a, he lied about himself. The shame falls to him for what he did.

I do see your point. But I just think it isn't so serious a matter as to require a criminal statute. Informal social sanctions can be pretty powerful and are sufficient for the purpose at hand, discouraging fakers.

No sin in that. If I excluded people on the basis of variant beliefs (esp. as to the wisdom of setting crimes and punishments), I'd have a dataset of one (me).

Regards

Mike

It seems to me the problem is that you're creating a special category for military service. Why should military service receive legal protection from fakers while other professions do not?

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REVISED JUDICATURE ACT OF 1961 (EXCERPT)
Act 236 of 1961
600.916 Unauthorized practice of law.

Sec. 916. (1) A person shall not practice law or engage in the law business, shall not in any manner whatsoever lead others to believe that he or she is authorized to practice law or to engage in the law business, and shall not in any manner whatsoever represent or designate himself or herself as an attorney and counselor, attorney at law, or lawyer, unless the person is regularly licensed and authorized to practice law in this state. A person who violates this section is guilty of contempt of the supreme court and of the circuit court of the county in which the violation occurred, and upon conviction is punishable as provided by law. This section does not apply to a person who is duly licensed and authorized to practice law in another state while temporarily in this state and engaged in a particular matter.

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The argument (if that is being made) that the legislature must cover all professions if it covers one is suspect. Do you have any legal authority for that proposition ?

Regards

Mike

Mike,

Fraud is fraud no matter what the profession. If someone tries to practice any licensed profession without the license then that is rightly illegal. That's not my point however. Let me put it this way: Should it be illegal for someone to claim they used to practice law, or won some award as a lawyer? I don't know of any profession where that is the case except for military service. Again, if someone is using that deception for material advantage, then that is fraud which is already criminalized. If someone falsely wears the uniform or military medals, then that has long been criminalized. In my opinion I don't think it's justified to criminalize merely lying about receiving military awards or any other award for that matter unless, of course, there is actual fraud involved.

on this topic is similar to Carl's and different from mine:

1. A distinction where there are acts accompanying the false pretense - commonality.

2. The question is what difference should that distinction make - if no acts

3. Sometimes, there oughn't a be a law - Carl & Entropy.

I feel much more strongly about the Stolen Valor Act than MI's "don't represent yourself as a lawyer" statute (the bolded part does not require an act, but only the "false pretense").

Anyway, it's a matter of beliefs and adding up votes in either the legislatures or courts. That is probably frustrating to anyone who thinks logical reasoning and argument should prevail in all situations.

There is nothing wrong with that, if it is basicially an academic discussion and if everyone signs on to the rules before the discussion begins. I'm talking about Van's Flow Chart:

http://critical-thinkers.com/wp-cont...Discussion.jpg

If I were a client and if my lawyer were to adopt Van's Discussion Rules, I would fire that lawyer real quick. Different arena - different rules.

The bottom line is that intractible belief differences do not bother me in the least. We who win in Round 1, but lose in Round 2, can hope to win in Round 3. Hey, look at Alan West. :)

Regards

Mike

I'm not a lawyer obviously, so I do have some questions and based on what I've been able to read, the answers to both of these makes the act problematic:

1. As a legal matter, is there any historical basis in case law for the stolen valor act?
2. Is there any other profession in which similar apples-to-apples conduct is criminalized in a similar fashion as to what the stolen valor act does?

And yes, I do come at this from a pretty strong pro-free speech position.

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1. As a legal matter, is there any historical basis in case law for the stolen valor act?

2. Is there any other profession in which similar apples-to-apples conduct is criminalized in a similar fashion as to what the stolen valor act does?

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If one's bias (belief) lies in one direction, what someone coming from the other direction cites, either as an "historical basis" or as "similar apples-to-apples conduct", will not be seen by the first one as either "historical" or "apples-to-apples".

In the real legal world, party 1 files his motion and brief; party 2 his answer and brief; the judge decides. That is a determinate process - one wins; the other loses.

As far as I am concerned, I've cited both "historical basis" and "similar apples-to-apples conduct" for the Stolen Valor Act (and the Marine Burial Act, elsewhere). I'm sure I could spend much more time on both - write a long legal opinion letter, etc. For what purpose ? Ain't no judge of the case going to be reading it.

Regards

Mike

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If one's bias (belief) lies in one direction, what someone coming from the other direction cites, either as an "historical basis" or as "similar apples-to-apples conduct", will not be seen by the first one as either "historical" or "apples-to-apples".

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Well, all people are biased and all arguments are biased to include both yours and mine. That's kind of the point of argument and debate to begin with. But I get that you don't want to discuss this further which is fine by me. I'm perfectly content to agree to disagree.

Sonia McNeil at Lawfare has a good summary of the Stolen Valor Act oral argument before SCOTUS Weds, Lies, Crimes, and United States v. Alvarez, outlining several possible outcomes besides outright affirmance or reversal. The article has numerous links (in the snips below, I've hyperlinked only a few to original documents in the case).

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Wednesday’s oral argument on the constitutionality of the Stolen Valor Act generated a flurry of anticipatory and postmortem coverage, as well as divided commentary. The brief of the United States is here, the respondent’s brief is here, and a transcript of the oral argument is here.
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Observers note at least two possible ways to uphold the Stolen Valor Act. Justice Anthony Kennedy and Justice Stephen Breyer appeared to support arguments which avoid the First Amendment and frame the Act as means of safeguarding the military’s ability to show appreciation for service, thus “protecting the rough equivalent of a government trademark covering military honors.” The United States mentions this argument in its brief, but the theory is explored more fully in an amicus brief filed in support of the government by the Veterans of Foreign Wars of the United States and other service associations. “At its core,” the amici argue,

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this case is about theft, not lying in general. It is undisputed that the First Amendment does not protect people who falsely claim to have received military awards in order to fraudulently receive tangible or pecuniary benefits . . . . This Court likewise should conclude that the First Amendment does not protect those who wrongly appropriate for themselves the intangible, nonpecuniary advantages and acclaim that flow from the goodwill associated with military awards they have not earned.

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The Court’s alternative, grounded in the doctrine of constitutional avoidance, seems to be essentially to rewrite the Stolen Valor Act. Although a competing tradition stresses that “judges should not actually rewrite a law to make it constitutionally acceptable . . . sometimes the line between the two traditions is quite blurred.” Judge Smith’s opinion for the Ninth Circuit suggested a great deal would have to be read into the Act to save it, while Solicitor General Donald Verrilli emphasized during oral argument that the Act covers only “a carefully limited and narrowly drawn category of calculated factual falsehoods.” The extent to which the sharply divided Court agreed with either view is not clear.

If the Court does strike down the Act, however, Congress may respond. Last May, Congressman Joe Heck (R-NV) introduced the Stolen Valor Act of 2011. The amended Act would expand the statements subject to penalty by making it a crime knowingly to misrepresent past service in a combat zone or special operations force, as well as to claim falsely to have received military honors. An offense under the new Act would also require, however, that the misrepresentation was made “with intent to obtain anything of value.”

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Now we can wait, realizing that what SCOTUS holds as to the present statute will not likely be an end to the story.

Regards

Mike

I like what Congressman Joe Heck's version is angling at, that the misrepresentation is made “with intent to obtain anything of value.” The Libertarian in me believes the issue devolves down to what the end result of the lie is.

A person who sits in a bar and claims to have been a Navy SEAL is a liar. If he uses that lie to get a job he has committed fraud. Currently there is no law that proscribes anyone from claiming they are a Navy SEAL, but there are several websites devoted to debunking posers and shaming them into ceasing their posing. True, some people are pathological liars and a public shaming may not work, so be it. But most posers are just extreme Walter Mittys and usually the embarrassment of being outed as a poser is enough.

My concern is the whole freedom of speech and expression versus fraudulent activities. As a libertarian I feel government has no business regulating my private activities. The less government the better. The “Stolen Valor” law needs to be recrafted to be of a fraudulent gain through false pretenses with remuneration to the aggrieved party law. That way it covers not just fraudulent MoH cases, but also someone posing as a veteran to get VA benefits, a person claiming a PhD to get a professorship, and padding a resume. What it doesn’t cover, and shouldn’t, are garrulous posers who make unsubstantiated claims at a bar or a party or like to play dress up on a socila networking site or a party.

When one gets creative on a resume it is incumbent on an employer to do the due diligence to verify an individual’s bona fides prior to hiring them. If the lies result in a job and then are discovered later that is fraud. Under the type of overarching statute I outlined above the employer could regain past wages and benefits paid. Or the VA could recoup past benefits rendered. It works in a variety of scenarios, not just specific ones in regards to decorations and service. A national database could also be set up similar to the sex offender one so future fraud by those individuals caught could be available.

To Entrophy's earlier question as to other cases in any other professions I would cite Ward Churchill, former professor at the University of Colorado. While his behavior was not, and has not, been criminalized, it did cost him as far as position and credibility.

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Originally Posted by jmm99

Hi Carl,
Once it was enacted, a minority special interest group headed into the Federal courts to set it aside. Same for the Marine Burial Case.

Since the Federal courts are not elected, finding the People in that process is more difficult. In fact, that process appears more "rule by law" than "rule of law".

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That position seems to be extremely problematic, since taken to its logical conclusion it would invalidate the judicial branch altogether. The courts exist as a check on the power of "the people", for the specific reason that "the people" can very easily become a tyranny of the majority. Or even a tyranny of the minority, if the minority has enough money and/or influence.

To me, the Stolen Valor act looks very much like a blatant tug at the heartstrings that conceals a very troubling abrogation of free expression. Does military service gives rise to an intangible property interest that should not be impaired by imposters? Yes, I think it does. However, the ideals that the military is in service to override that intangible property interest. Those ideals include free expression--the right, among other things, to mock things that others believe are important. There are no cows so sacred as to be exempt from that. All else being equal, I don't think people should pretend to have served in the military. But part of why I did serve is that I think the ideals that the United States has built itself on--free expression primary among them--need to be defended.

I don't see the "position" you are attacking - presumably based on the quoted material ? - but I don't see it there.

This argument:

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... since taken to its logical conclusion it would invalidate the judicial branch altogether. The courts exist as a check on the power of "the people", for the specific reason that "the people" can very easily become a tyranny of the majority. Or even a tyranny of the minority, if the minority has enough money and/or influence.

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is extremely superficial; and not fairly based on anything I've written here or elsewhere.

Moreover, I don't appreciate having my statements cherry-picked. Here is what I said in full:

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That brings us to another point - which ties into our discussion about "rule of law" and "rule by law". The Stolen Valor Act was enacted according to our usual constitutional process. So, as close as we can get, it was a statute ordained and established by the People; and thus, a "rule of law".

Once it was enacted, a minority special interest group headed into the Federal courts to set it aside. Same for the Marine Burial Case.

Since the Federal courts are not elected, finding the People in that process is more difficult. In fact, that process appears more "rule by law" than "rule of law".

We tolerate that judicial process because it adds another set of checks and balances to our constitutional equation - and because it used to occur but rarely until my lifetime. That is just another intangible to think about.

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I'll stand by that statement - as written.

Regards

Mike

Have some slippery slope.

John Giduck; Stolen Valor bully
http://thisainthell.us/blog/?p=30958