Posted on 08/17/2010 6:39:02 PM PDT by markomalley
A federal appeals court panel in California says people have a right to lie about receiving military medals.
The Tuesday ruling involves the case of Xavier Alvarez, who falsely claimed in 2007 to have won a Congressional Medal of Honor. He was charged with violating the federal Stolen Valor Act, which makes it a crime to falsely claim to have won a military medal.
Alvarez challenged the law on appeal as a violation of his free-speech rights.
A panel of the 9th U.S. Circuit Court of Appeals sided with him in a 2-1 decision. The majority said there's no evidence that such lies harm anybody, and there's no compelling reason for the government to ban such lies
(Excerpt) Read more at news.yahoo.com ...
Other than to the liar's reputation, no. For once I hope the USSC upholds these decisions.
There are many well-established situations where it is illegal to lie even absent any oath. It is illegal to lie to a federal agent, it is illegal to lie to obtain commercial gain or benefit, it is illegal to lie on many applications for things like insurance and mortgages, it is illegal to lie where the lie places others in danger, it is illegal to lie in many business transactions involving non-business consumers, etc.
Secondly, “no harm - no foul” may be great in the NBA, or a defense lawyers claim, but it is at best mitigation under the law. All the laws where conspiracy to commit an act or an attempt to commit an act are made illegal (such as attempted murder) assume the possibility or even the probability that the underlying action was never actualized.
If a person tries to hire someone to kill their spouse, but ends up making that request to an undercover LEO, the spouse never dies, but the actor is certainly chargeable.... even though nothing but words and perhaps money were ever exchanged.
This situation is much more significant than just speech in many cases, because it involves the acts of obtaining, affixing and wearing of the medals, not just talking about them.
This legal principle even goes into other more mundane and easily understandable acts. If you are charged with speeding, running a stop sign or reckless driving, the fact that you were not involved in or did not cause an accident thereby harming another person or their property is not a defense.
Wearing these medals is not a statement, or words, it is an act based on a lie and is certainly punishable under the criminal codes.
This situation is much more significant than just speech in many cases, because it involves the acts of obtaining, affixing and wearing of the medals, not just talking about them.
That is not the case with this particular law. Simply walking into a bar, getting drunk then claiming you're a military hero can get you up to a year in jail. No harm to others or conspiracy to harm is necessary.
To falsely claim an award is also, through implication, claiming the existence of such documentation and records, and misrepresenting the authority granted by the government to wear the award.
That's not true. Claiming you single-handedly shot 100 Taliban, then strangled 50 more with your bootlaces after you ran out of ammo is not a crime, and is an exercise of free speech. Claiming that you earned the Navy Cross for doing so is not. When you lie about what you did that's fine. When you lie about what others did (i.e. "the Department of the Army, Navy, etc. awarded me this medal") you have stepped into unprotected speech.
It's exactly what I stated earlier, it's slander against the US government. The courts have never recognized that as a legitimate defense by the government to prosecute. Read the Alien and Sedition Acts, in many ways these two laws are similar.
The dog ate my homework too. :)
A lie is meaningless in the eyes of the law if it doesn’t attempt to defraud someone or cause others harm. Good thing too otherwise we’d all be jail.
I disagree...it’s not slander in the sense that one is generating “false, scandalous, and malicious writing” against the US, which I agree, has first amendment protections. It’s more akin to falsifying official government records, which as far as I know, is still illegal.
Agreed, if you attempt to profit off of those lies.
But to simply state something that isn't true against the government could be construed as slander and is not a crime, or shouldn't be.
You're misinformed about the act. There are exemptions for actors, theatrical performances, etc. Tom Hanks is not going to be prosecuted because he wore a MOH as Forrest Gump, or because he wore Captain's bars and Ranger Lozenge while he was saving Private Ryan...he lied for profit and was protected by the provisions of the act.
The intent of the act, like counterfeiting statutes is to criminalize those acts which are deliberate intents to defraud, however, traditional fraud statutes laws are not adequate because their prosecution is usually too reliant on hard, quantifiable dollar figures to assess damages or the degree of victimization. As I've stated elsewhere, not all things of value can be quantified in dollar figures (i.e. deprivation of liberty), and recognition for meritorious acts is one of those.
Then why the need for a new law when there's already plenty of laws they can use to prosecute for fraud? This particular law specifically attacks speech itself, no other acts are necessary for prosecution. If you're fine with that then this law is for you but get ready for lots more of them because they're coming if this is upheld.
I don't even know why I'm having this discussion with you when you're not reading what I'm taking the time to write...as I previously stated, "...traditional fraud statutes laws are not adequate because their prosecution is usually too reliant on hard, quantifiable dollar figures to assess damages or the degree of victimization."
"If you're fine with that then this law is for you but get ready for lots more of them because they're coming if this is upheld."
I'm as limited government as anybody, and certainly, I don't expect this (or really any foreseeable) administration to take our Constitution seriously. Having said that, providing for the common defense is a legitimate function of the government, and recognizing valor (which promotes future acts of valor) is a legitimate function of, and within the purview of the federal government as it has been from the very beginning of this nation. Actions that degrade and erode that function victimize both the individual award winners by devaluing the recognition bestowed upon them, and the nation as a whole by undermining the function of the nation's defense apparatus. It may not seem to many a particularly large or egregious offense, kind of like stealing pens from the office, but it's one that if left unfettered and unaddressed will have long term effects.
Now you know how I and probably others feel since you're not really addressing the points being made that this attacks speech itself.
It's not about trying to belittle the achievements of military heroes, obviously they're important otherwise people wouldn't lie about it. But when they start prosecuting speech the same rationalization that you make in the post can be used to outlaw almost anything and if history is any guide that's exactly what Congress and state legislatures, particularly liberals will do. They just tried with the Disclose Act.
As I said earlier, be careful what you wish for because your speech will be next.
I think I and others here, who love our Constitution and the First Amendment have presented a reasonably sound case that there are categories of speech and expression that are not protected. I agree that these need to be very rigidly defined and there must be a compelling reason for placing any restrictions upon them whatsoever.
I can not think of too many reasons more compelling, or legitimately grounded in the Constitution than the government's right, and indeed obligation to provide for the common defense.
The military awards program is a critical tool in promoting and maintaining the morale of our servicemembers. It recognizes exemplary behavior within the military culture, and motivates other servicemembers to emulate those that have served above and beyond the call. No less than Napoleon recognized the critical role that just recognition played in military morale..."The moral is to the physical as three to one"..."A soldier will fight long and hard for a bit of colored ribbon". Anything, no matter how seemingly slight its impact upon the military awards program stands to degrade and undermine morale. Now, you might ask "is one guy bullsh!tting in a bar about his Bronze Star going to cause the US military to collapse?" Of course not. But 1,000 guys in 1,000 bars, offices, churches, town halls, etc. bragging about their Bronze Stars are going to make the award of a real Bronze Star seem not so special. I don't see how, under those circumstances you or anybody could argue that a legitimate Bronze Star awardee would not be victimized...perhaps not in monetary terms (although possibly).
What about the person who impersonates an officer? I think that isn't covered by the Stolen Valor Act (only applies to medals?). But if a person claims they were an officer when they never served, would that be contempt of Congress because Congress has the confirmation power for all officers of the United States (or the power to delegate to the Executive the confirmation of lesser officers)?
Wouldn't claiming to be an officer when one is not, in a way be saying that Congress confirmed the person to be an officer when Congress did not?
-PJ
Actually that's a good parallel to the SVA. Impersonating an officer is covered under TITLE 18 USC, PART I, CHAPTER 43, § 912 which states:
"Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both."
I don't think this has ever been challenged under the aegis of protected speech, but I could certainly be wrong about that. The parallel is that wearing a military decoration (or being eligible to wear one) is done under the authorization of the US, just as executing the responsibilities and duties of any other federal officer.
Perjury is a crime because you have subverted justice and there is actual harm to specific identifiable individuals.
Lying in a contract is not a crime. The Federal Government does not put people in prison for breach of contract.
The Stolen Valor act makes bragging a federal crime.
It is irrelevant. FWIW it is already a Federal Crime to counterfeit a Congressional Medal of Honor.
The Stolen Valor act made it a crime to simply claim you possessed one (or any medal for that matter). It criminalized bragging.
I would suspect that under this statute if you had a Marine Corps Semper Fi bumper sticker on your car, but you were not a Marine, that if the Eric Holder justice department wanted to put you away for 5 years because you said something nasty about Obama, that they could conceivably use this statute to do it.
Doesn't that scare you?
The court did not hold that prohibiting the "wearing the medals" was unconstitutional. That was already a crime before the Stolen Valor act*** and that provision was not overturned. What they overturned was the provision that made it a crime to simply claim that you earned one.
The following provisions of the law are still in effect:
****Sec. 704. Military medals or decorations
(a) In General. - Whoever knowingly wears, manufactures, or sells
any decoration or medal authorized by Congress for the armed forces
of the United States, or any of the service medals or badges
awarded to the members of such forces, or the ribbon, button, or
rosette of any such badge, decoration or medal, or any colorable
imitation thereof, except when authorized under regulations made
pursuant to law, shall be fined under this title or imprisoned not
more than six months, or both.
(b) Congressional Medal of Honor. -
(1) In general. - If a decoration or medal involved in an
offense under subsection (a) is a Congressional Medal of Honor,
in lieu of the punishment provided in that subsection, the
offender shall be fined under this title, imprisoned not more
than 1 year, or both.
.
Perhaps you misunderstand what the court did here.
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