MaxBarrett

FAKING COURAGE:

THE STOLEN VALOR ACT

  Signed into law by President Obama on 3 June, the Stolen Valor Act of 2013 makes it a federal crime for any person to fraudulently claim, with the intention of obtaining money, property or some other benefit, that he or she rightfully received any one of various military decorations.

   The Act represents a second bite of the apple by Congress. An earlier Act, the Stolen Valor Act, 2005, was struck down as unconstitutional in 2012 by the US Supreme Court in the Alvarez case.

   Under the 2005 Act, it was an offence merely to assert falsely that one had undertaken military service or received a military award. Faced with a prosecution under the Act, Mr Alvarez claimed that the Act was unconstitutional in that it contravened his First Amendment right to free speech.

  A divided (6-3) Supreme Court agreed with this contention. However, the majority justices could not agree on a common rationale for their decision and the dissenting judgment of Justice Alito (joined by Justices Scalia and Thomas) is more coherent and, in many ways, more impressive.

  Alito J. asserted simply that the Supreme Court has not historically extended First Amendment to false statements that cause real harm and serve no legitimate interest. In his view, the 2005 Act was a narrow law enacted to address an important problem and did not present a threat to freedom of expression.

  Not surprisingly the Alvarez decision generated a lot of criticism from veteran organizations. It also prompted an almost immediate response from President Obama. In a speech to military veterans delivered at the height of the 2012 presidential campaign, the President announced that his administration would ‘launch a new website, a living memorial, so the American people can see who’s been awarded our nation’s highest honors’ – and double-check any claims that an individual might make in this regard.

   The government website (valor.defense.gov) lists recipients of the three highest awards available to Army, Navy, Marine Corps and Air Force personnel. The 2013 Act extends to 11 named awards and any replacement/duplicate medals authorised by law. 

    Regardless of one’s views as to the merits of the majority judgment in Alvarez, the 2013 Act steps back from making a mere false assertion an offence. It requires instead that the person making the false assertion (the liar) must be seeking some form of benefit.

    In welcoming the 2013 Act, the American Legion touched on the same type of rationale to which Alito J. referred in his dissent, stating that:  ‘Those who deliberately lie about military service, wear medals they did not earn or make claims of combat heroism they did not achieve are more than just liars. They are perpetrators of the worst kind of fraud. Their lies are an insult to all who have truly stood in harm’s way and earned their decorations.’

   One can see why Congress would want to make the specific harm addressed in the 2013 Act a specific wrong under federal law. However, the nature of the wrong criminalised under the 2013 Act is now so narrow in nature that a question possibly arises as to whether such a wrong would not in any event have been prosecutable under the laws of each of the various US states (as a form of obtaining by deception/false pretences).

Dr Max Barrett is a practising Irish solicitor. Views expressed in this article are personal.

*Mr Bowen does not endorse the author or contents of this article.