Stolen Valor Act Unconstitutional ?

[jmm99]

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:'

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 As originally enacted, section 704 criminalized the wearing, manufacture, or sale of unauthorized military awards.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

... 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 ....

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.

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).