Skip to comments.Federal law barring lies about medals is tested
Posted on 02/06/2010 3:31:30 PM PST by The Magical Mischief Tour
DENVER (AP) - The federal courts are wrestling with a question of both liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes?
At issue is a three-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory.
Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn't hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.
Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself.
"Half the pickup lines in bars across the country could be criminalized under that concept," he said.
(Excerpt) Read more at wkrn.com ...
Not especially, no. I hope my ignorance won't be too much of a bother :)
...They own the design and they own the right to who can wear them.
Can you provide a source to verify this claim? For example, has the government registered a trademark in their military decorations?
Just like, for instance, the LAPD owns their patches and can charge you with wearing their patches.
This example does not seem analogous to the issue we are discussing.
First, because the LAPD is part of a local government empowered by a state/local constitution, not the Federal constitution. Second, it seems like the restrictions on wearing the LAPD patch are aimed at preventing police impersonation, which is a public danger, and not as an effort to protect the LAPD logo as intellectual property.
Or am I incorrect on this point? Could you be charged for sewing an LAPD patch onto your jacket in a way that does not make it look like you are an officer (maybe it's on a designer denim jacket with several other patches)?
It is their property, as in intellectual property, and they take those ownership privileges very seriously.
What provision of the Constitution allows them to claim these designs as intellectual property and to protect them with criminal sanctions for unauthorized use?
It can't be Congress's power over the "land and naval forces" since the law applies to those not in the land and naval forces. It can't be "authority over all places purchased" since we're talking about intellectual property, not real property.
Art. IV, Sec. 3, clause 2 might apply. It reads:
"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."
However, both the placement of this clause in Art. IV, Sec. 3 and the records of the drafting of the clause indicate that "Property" meant real property. There's also the question of whether the law's restrictions are "needful." For the sake of brevity I'll set that question aside for later.
-Trademark infringement is usually addressed through civil proceedings, not criminal proceedings.
-Trademark infringement requires that the mark be used in commercial activity. However, neither the authorized use of military decorations nor many of the unauthorized uses of military decorations relate to commercial activity.
-Trademark infringement requires a likelihood that consumers will be confused, but there does not appear to be any "consumer" when it comes to military decorations.
-IMO, the real reason Congress prohibits unauthorized wearing of military decorations is because it is offensive, not because they want to prevent anyone from being confused. Punishing offensive behavior is not an appropriate task for the Federal government. The Feds should not pursue inappropriate ends by masking what they are doing as something else that might be Constitutionally permissible.
Look, if someone wants to lie about his/her service record verbally, so be it. However, if they wish to wear a non-awarded medal, which requires a federal authorization, or claim such on an application of some sort, they should be subject to prosecution. I view this as the same sort of thing as not having a valid drivers license.
I don’t see this as a free speech issue at all.