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 As originally enacted, section 704 criminalized the wearing, manufacture, or sale of unauthorized military awards.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

[Entropy]

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

[jmm99]

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

The majority raises an interesting discussion point:

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.

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:

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.

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

Regards

Mike

[Tom Odom]

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

Regards

Mike
__________________

I am with you...

Hang the bastage with a blue and white starred ribbon

[Global Scout]

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.

[jmm99]

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:

...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.

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:

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).

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:

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.

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

[AdamG]

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.

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

[jmm99]

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

[120mm]

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....

[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.

[jmm99]

(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:

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

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:

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.

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

Regards

Mike

[120mm]

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.

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.

[selil]

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.

[jmm99]

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

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

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.
....
(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.

So, what you describe here:

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

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) :

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.

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

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

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).

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):

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:
.....
[punishments depend on the punishment for the underlying offense]

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