The Stolen Valor Act: This Time I Agree with the Government

I think that I am the only member of the First Amendment Lawyers’ Association who thinks that the Stolen Valor Act should be upheld. The Act makes it unlawful to falsely claim that you were awarded a military medal. The 9th Circuit struck down the law:

“The sad fact is, most people lie about some aspects of their lives from time to time,” wrote Judge Milan Smith in a 2-1 decision. “Given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements.” (source)

If I put an “Intel Inside” label on a box of used pinball machine parts, I can be held civilly liable for trademark infringement. If I put a fake “Coach” label on a handbag, I can be held civilly and criminally liable for counterfeiting. What is so objectionable about holding an asshole responsible for lying about receiving the Medal of Honor?

Personally, if I wrote the laws, I would not criminalize lying about receiving a medal. I think that we should privatize the justice in that circumstance. If I wrote the law, it would state:

It shall be an absolute defense to battery, if that battery does not cause death or serious permanent injury, if the battered party lied about receiving a military honor that he did not actually earn, and the battering party was a current or former member of the armed forces, and the beating was administered solely as punishment for the lie.

I’ve said it many times: The First Amendment may prohibit the Government from punishing you, but that should not exempt you from an ass kicking.

10 Responses to The Stolen Valor Act: This Time I Agree with the Government

  1. Charles Platt says:

    You may also be the only first amendment attorney who sort-of advocates assault as a remedy preferable to legislation. But I see this as part of your charm, Marc.

    • blueollie says:

      I like him too, but I sometimes roll my eyes at this constant reference to “ass kicking”. One of these days Marc will take a swing at an ex-boxer and, well, it won’t be pretty. :)

      But yes, that is part of his charm and I admit that I love his intensity and passion for the first Amendment.

  2. andrews says:

    I probably would not criminalize most things, and especially speech; it gives too much freedom to the government and is subject to abuse of discretion. My experience is that government, given discretion, will abuse it.

    We do not criminalize the use of “Coke” to refer to the store-brand cola. It is a civil matter; use someone else’s mark and you can get sued.

    We head down the wrong road when we criminalize copyright, trademark, and trade secret violations. Depictions of a round-eared cartoon mouse may violate a copyright [never mind that it should have expired fifty years ago]; do it right and copyright violations are criminal. Tell someone about the now well-understood “rot13” encryption technology, and you could head to jail.

    I see nothing wrong with allowing something like a trademark registration for the medals. But make it civil. None of this stuff needs to be in the criminal courts. Give an injunction, if appropriate, against someone using the trademark-like substances improperly.

    By making it civil, particularly with injunction, we make it possible to determine the boundaries and test the law without risk of prison. Prison ought to be used mainly for crimes with real victims, and there are no real victims for the “stolen valor” act.

  3. Mark Kernes says:

    Seems to me that if one uses one’s fake military honors to receive anything of value, that’s fraud, isn’t it? I think financial fraud is still a crime, though it’s sometimes hard to tell these days…

    • MikeZ says:

      Seems like it would work exactly the same as marc’s two examples above. Technically it isn’t illegal to put the “Intel Inside” sticker on a box of pinball partts. Intel sells those stickers you can do whatever the fuck you want with them. However you can’t then go sell that box of parts and claim it is a new PC or is made by Intel.

      I don’t think it should be a criminal act to lie about having received a medal. Frankly its a good thing that people can lie about easily checked facts. Helps us to easily separate the douchebags from the rest of the crowd.

  4. […] Liberties and Privacy Randazza brings up an interesting topic: I think that I am the only member of the First Amendment Lawyers’ Association who thinks that […]

  5. ChadKnowslaw says:

    Wearing badges unearned or claiming to have earned honors is lying, but unless it’s used to sell something (like your Intel Inside or Coach label examples) I believe First Amendment protection applies. The First Amendment is not there to protect speech we approve — it is to protect speech that is scorned and ridiculed and despised. The cure for this type of speech is more speech — the person’s face on the evening news with a 60 second story about how he is lying scumbag ought to take the wind of him. A photograph of the liar posted behind the bar he tried to get free drinks using his stories with the caption “Lied about being a hero. Do not buy drinks!” just like the Wall of Shame for bounced checks I’ve seen in some small town establishments.
    Criminalizing lying about earning an award is not permissible under our Constitution, no matter how patriotic we might feel or how repulsive the lie.

    • But isn’t it a species of fraud? The First Amendment tolerates liability for false statements that damage another’s reputation (defamation), it tolerates punishment for false statements about products (false advertising, counterfeiting, trademark infringement), why not false statements about military honors received?

      As I understand it, the statements must be used to procure something in order to be punishable. Does that change your analysis?

      • ChadKnowslaw says:

        The Stolen Valor Act is not about fraudulently obtaining something of value — it criminalizes the statement that one has earned a medal :

        “Whoever falsely represents himself or herself, 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 shall be fined under this title, imprisoned not more than six months, or both.”

        http://www.gpo.gov/fdsys/pkg/PLAW-109publ437/pdf/PLAW-109publ437.pdf

        There is no procuring anything requirement. Does that change YOUR analysis?

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