LEGAL VIEW: Stolen valor - Round 2

By Scott Forsyth

The Daily Record Newswire

Some bills never die in Congress. They get introduced session after session, no matter how few votes they muster or, if they pass, how many times the courts strike them down. The Flag Protection Acts and the Flag Desecration Amendment, last voted on in 2006, are a classic example.

The Stolen Valor Act could be joining this select group. Congress enacted the first version in 2006. On June 28, the U.S. Supreme Court invalidated the law as a violation of the First Amendment, United States v. Alvarez, 567 U.S. __ (2012).

Now Sen. Scott Brown and Representative Joe Heck, both running for re-election, have sponsored a new version of the bill.

The 2006 Act made it a crime to falsely claim the receipt of military decorations or medals. If the Congressional Medal of Honor was involved, the penalty was enhanced.

The new bill goes for broke. It criminalizes a "misrepresentation" knowingly made by a person "regarding his or her military service," "with (the) intent to obtain anything of value." The penalty is a fine and/or 6 months imprisonment.

Value is not defined. Run for office and embellish your military service? Guilty. Imply you served in a particular campaign to get a job? Guilty. Erroneously claim first-hand knowledge of the combat record of a presidential candidate in an effort to smear him? Guilty.

Sen. Brown said at a press conference that "this is not a controversial matter." True, protecting the integrity of the military decorations system is a compelling government interest and the Supreme Court so held. However, it pointed out "that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought," including "the sometimes inconvenient principles of the First Amendment."

The 2006 act lacked this consistency and so too does the new bill.

Mr. Alvarez was a habitual liar. He lied about playing for the Detroit Red Wings and being married to a Mexican starlet. Both misrepresentations caused chuckles but did not bring down the wrath of the state.

Then at a local water district meeting Mr. Alvarez falsely claimed to have received the Congressional Medal of Honor. The media duly reported the claim. The federal government responded by indicting him.

Mr. Alvarez argued he had a First Amendment right to make false statements of fact. The government countered such statements are not protected. They are valueless because they interfere with the truth-seeking function of the marketplace of ideas.

The Supreme Court agreed with Mr. Alvarez. Justice Kennedy wrote the plurality opinion.

The 2006 act bans speech based on the speech's content. "Content-based restrictions on speech (are) presumed invalid ... and the government bear(s) the burden of showing their constitutionality," Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 660 (2004).

Justice Kennedy identified nine categories of speech, the content of which government could regulate. False statements did not fall into any of the categories. He refused to make a new category for false statements standing alone.

"Permitting the government to decree this speech to be a criminal offense ... would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle." Not knowing when and how government would exercise the power would chill speech.

Justice Kennedy also commented the government had not provided any evidence that the public's perception of military awards is diluted by false claims like Mr. Alvarez's. And the government had not shown why counterspeech, such as the ridicule Mr. Alvarez received online and in the media, would not protect its interest. Finally, creating a database of Medal of Honor winners, searchable on the Internet, was a less restrictive alternative.

Justice Kennedy did observe Mr. Alvarez did not "gain a material advantage" from his false statement. The sponsors of the new bill hope the addition of the value language will yield a different result in court. They compare the bill to a statute criminalizing fraud. Fraud is one of the content-based restrictions on speech upheld by the Supreme Court.

The comparison is off-base. Fraud requires a specific intent to deceive, a material misrepresentation, knowledge of the falsehood, reliance and damages, none of which are present in the new bill.

The sponsors are doing what Justice Kennedy condemned -- starting to compile a list of subjects about which false statements are punishable. "The remedy for speech that is false is speech that is true," not suppression of the former.

Hopefully other members of Congress will see the flaws in the new bill and let it die peacefully in committee.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Thu, Jul 26, 2012

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