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 ...
I learned what deception is well before elementary school.
Tell you what, go to your local Sheriffs office and call the receptionist/deputy behind the desk a f*****g b!tch or mo**** f****r and see how far your opinion of HONEST free speech goes.
That is irrelevant to the Constitutional matter at hand. What you or I consider to be silly law is not necessarily unconstitutional.
Jacquerie: “BTW, the term Compelling State Interest is a radical leftist construct designed to prevent a sovereign and supposedly free people from making law that reflects our traditions.”
It may (or may not) have originated with leftists, but the idea of a compelling state interest is a legitimate attempt to try and determine how to apply the US Constitution. That’s why we have hundreds of years of the courts trying to figure out how to apply freedom of speech in unusual cases, such as this.
For example, does freedom of speech mean you can shout fire in a crowded theater and not be held liable for what ensues? Ah, one could argue the US Constitution protects that speech, but that would be taking the freedom to the absurd, wouldn’t it?
So the justices have tried to develop tests so that there can be a black and white line in the law. I’m all for that, so long as the burden always falls on the state to prove a restriction is constitutional.
In this particular case, the freedom of speech is protected. It doesn’t say dishonest or honest speech. It says speech.
You think lying isn’t protected. OK, so draw a line, develop a constitutional test, that can be applied here that doesn’t completely subvert the First Amendment protections. Or, are you seriously implying the government could make any deception whatsoever a federal crime????
Wow, was surprised to see Dave Ward is still anchoring at 13 in Houston.Go Dave!
So then it would be legal to say you were going to kill someone if you did not hurt them.
If it *was* a crime, 99.5% of politicians would go to the joint. Though that’s not necessarily a bad thing.
The problem is, we allow too many silly laws to fill too many law books as it is, Constitutional or not.
BTW, while there are only less than a million of us left of the 2.5 million who served in Vietnam, there are 9 million claiming to be. Again, if you have the orders to support your claim, no problem. If you don't, perhaps a penalty is in order.
We are not too kind to the wannabes. However, they are easy for us to spot.
ASB: “Can a private citizen walk onto a secure military installation?”
Not if they claim to be a member of the military when they are not, but that’s not the same thing as bragging in a bar.
ASB: “In other words, wearing a ribbon that has been trademarked by the U.S. Military extends the control of the U.S. Congress to the wearer.”
No more so than wearing a jacket with “Mt. Dew” on it puts you under Pepsi Co corporate rules. It depends on how a trademark is used. If you use it for personal gain, such as selling jackets marked “Mt. Dew” that you made on your own, then you have a point. Otherwise, no.
In my opinion, the only person potentially harmed would be the redhead who goes home with the fake war hero. Perhaps she could sue for damages?
timm22: “Even if these restrictions are technically Constitutional, it seems obvious that they are being imposed because people are offended by phony veterans, not because anyone is really worried that the lies of a few dirtbags will hinder the operation of the armed forces. As people who value liberty, we should not support using legal technicalities to achieve ends that are contrary to the principles of limited government.”
Very well stated! The leftists aren’t apparently the only ones who like twisting the US Constitution to fit their personal agendas!
I have repeatedly seperated the ideas of bragging about something and actually wearing the ribbon.
I see the difference between the two.
Our Constitution put into practice the concept of Natural Law as espoused in the Declaration of Independence. It is only in the context of Natural Law that our Declaration and Constitution form a coherent whole. While I do claim to be a classical philosopher, I have read enough what our Framer's read to understand what and why they did what they did.
FWIW, the basic sources of my point of view are:
Levin's "Libery & Tyranny," Budziszewski's "Written on the Heart," and "A Miracle That Changed The World," by Skousen.
Thank you for your service in Vietnam.
What we are discussing here is someone who wears an unauthorized ribbon in order to impress people. They are not claiming to be a war veteran to gain benefits other than to...maybe...pick up a bar floozy.
Does the freedom of speech give people the right to lie? I say yes. That’s reprehensible but protected speech.
Pardon me, that is “do NOT” claim to be a classical philosopher!
Thats a really bad analogy. There is a significant difference between me telling you I won a SIlver Star during a job interview as opposed to me telling you that I will kill you if you don't give me a job. One might simply sway your thinking, the other would most likely place you in fear of great bodily harm or death.
Yes, there’s a difference between wearing a ribbing and simply bragging about having one. I see the difference but I don’t see how wearing a symbol is itself criminal. If that symbol was purchased legally, the fake war hero is a legal owner of it. If they wear it without attempting to gain something tangible, then it’s the same thing as you displaying a home-made shirt with a trademarked symbol on it. You can do that. It’s legal.
Thats why I made the point about causing veterans (of which Im one) discomfort. Sorry, but I dont think it should be a crime to offend someone.
Unfortunately, many of these knuckleheads make disparaging remarks about the armed forces.
Remember Jesse MacBeth? He washed out of Army Basic Training, went home and became the star of a newspaper article when he described his exploits as an Airborne Ranger. He became the toast of the anti military crowd. He claimed that his team would grab entire families and kill them one by one until the got the information they wanted. Journalists and communist groups repeated MacBeth's claims without any attempt to verify the info. He was finally busted when real Rangers investigated his claims and exposed him as a fraud. He was never punished for his slander, but he did a few years for receiving VA benefits through fraud.
How about Scott Beuchamp? He was a journalist who joined in order to lend credibility to his hit pieces against the American Military in "The New Republic" online magazine under a pseudo-name. In his articles he claimed to have worn a child's skull as a hat, mocked a female burn victim with his buddies in the DFAC and used "illegal 'square backed bullets' in his Glock." When the Army tracked him down and investigated these and other claims, they determined all of his articles were lies.
These jokers, and others who denigrate American war-fighters, not only tarnish the reputation of true Soldiers, they also give ammunition to America's enemies both foreign and domestic.
Now for the reality check; if some clown in a bar spins a tall tale about humping a ruck in the mountains in Afghanistan so be it. He'll get busted sooner or later. However, if some lying weasel sits in a bar and claims he was in the Army's super secret squirrel corp, and his team killed children and planted evidence to frame al Queda...that's a whole different story. He needs jail time.
That is where we differ. It's not a symbol. It is an acknowledgement of action. It is an official award given for something specific.
A CIB is not a Pepsi logo. It's more than that.
Just like a civilian cannot go onto a secure installation without permission and not face severe criminal charges, likewise I believe that Congress has the authority to charge someone with wearing a trademarked item that is a military award.
Whether you believe that is the ethical thing to do, I believe Congress has absolute legal authority to do so without any legal twistings or relying upon the "necessary and proper" clause.
They make the regulations for the armed forces. Those regulations determine who can wear which award. Those regulations can stipulate the penalty for someone wearing those awards without permission.
As you said at the beginning, it doesn't matter if it hurts anyone's feelings, the law is the law.
You’ve never flipped off a cop?
If Obama can call himself an American citizen...
So then it would be legal to say you were going to kill someone if you did not hurt them.
Thats a really bad analogy? I just went to the extreme of what the lawyers said.
The text of the Constitution suggests otherwise.
The clause you cited earlier from Art. 1 Sec. 8 empowers Congress to make rules "for the land and naval forces". And that's it.
They make the regulations for the armed forces.
Those regulations determine who can wear which award.
I would change that to, "The regulations determine which members of the land and naval forces can wear which award."
Those regulations can stipulate the penalty for someone wearing those awards without permission.
I would change that to, "The regulations can stipulate the penalty for members of the land and naval forces wearing awards without permission."
I don't see how Congress's power could extend beyond that described in my "changed" versions WITHOUT resorting to the "necessary and proper" clause.
Can a private civilian walk onto a secure military installation without permission?
If Congress doesn’t have any authority over civilians under Article I, Section 8, then that answer should be “yes”. Correct?
ASB: “As you said at the beginning, it doesn’t matter if it hurts anyone’s feelings, the law is the law.”
We shall see. My guess is, the court is going to overturn this law.
I believe your understanding of Congress’s power in this matter, that it can only apply to members of the armed forces, is the one that will prevail in court. I will applaud the decision if that is the case.
There’s a difference between using speech to threaten someone and lying in order to make yourself look better. There’s a SUBSTANTIAL difference there.
Not necessarily. Congress's power over military installations is covered by the 17th clause of Art. 1, Sec. 8 which reads "...to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be." As Federally "owned" property Congress can stipulate conditions for accessing or using it.
This clause would not cover the law in question since the law applies both on and off military installations. Again, without a tenuous argument tied to the "necessary and proper" clause I fail to see how Congress is empowered to enact these restrictions.
I am curious to know what you think are the limitations to Congress's power under the "regulation of the land and naval forces" clause. If Congress can prohibit the wearing of unearned medals by civilians not on a military installation, can they also prohibit the wearing of an Army PT shirt or uniform-like clothing? Stipulate a national diet for teenagers to decrease training time for new recruits? Prohibit "boot camp" style fitness programs for civilians?
Thank you for proving my point!
Ribbons are property of the U.S. Armed Forces and Congress can stipulate conditions for using them!
By "property" I meant "real property." I though this was apparent from context since I was referring to clause 17, which covers "...authority over all places purchased...", but perhaps I should have been more precise in my language.
Military ribbons are things, not places. Moreover, the Federal government does not "own" ribbons purchased by private individuals from private sellers.
It is their property, as in “intellectual property”, and they take those ownership privileges very seriously.
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.