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.
...
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,
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.
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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