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Stolen Valor - a crime or free speech?

Discussion in 'Sports and News' started by Evil ... Thy name is Orville Redenbacher!!, May 12, 2011.

  1. I side with the idea this is a punishable offense.
    If people want to believe soldiers are heroes for their service then faking medals and honors and embellishing claims should be an offense.
    I think it's a disservice to those who served.
  2. franticscribe

    franticscribe Well-Known Member

    Sorry, but criminalizing pure speech rankles my skin. Prior to the Stolen Valor Act, it was already a crime to wear a medal or uniform and represent that you had earned them. This makes it a crime to simply claim to have earned a medal or honor, and that's a step too far.

    The Ninth Circuit has already held the law unconstitutional twice (on a panel and en banc).

    What will be interesting is if the Tenth Circuit says the law is constitutional then this becomes ripe for Supreme Court review. If the Tenth Circuit ends up concurring with the Ninth Circuit it becomes much less likely that it will go up to the high court.
  3. Smallpotatoes

    Smallpotatoes Well-Known Member

    Do a lot of people lie about this stuff for financial gain?
    In that case, yes, it should be illegal.
  4. Dick Whitman

    Dick Whitman Well-Known Member

    Free speech all the way. It's not a policy question, Evil, and shouldn't be evaluated as such. It's a Constitutional question. And as a Constitutional question, at first glance, there seems to be no way to criminalize it without inventing new First Amendment doctrine. I don't think that the Court would recognize that this is a "compelling state interest." And, even so, it has to then be "narrowly tailored" to achieve the government's end. That's an extremely, extremely difficult burden to meet. Schools, prisons, government employers, and the armed forces can often meet the burden imposed on restricting speech, but I don't think it's as heavy. Might just be a substantial state interest in that case, with less of a requirement that the solution be the least restrictive means. Anyway, as far as this case goes, I don't think that the interest is arguably "compelling," but the law is not narrowly tailored or designed to materially serve that interest. I can practically hear Scalia now, ranting about how someone lying about their medals does not have any effect on the integrity of the people who earned the medals. It doesn't diminish them whatsoever.

    I think a case of recent vintage that might illuminate how the Court examines these kinds of laws was the crush videos case last year. Some people in the public were just aghast that the Court said that the law criminalizing them was unconstitutional. People just couldn't get past how awful the product was. But the Court said that it wouldn't create a new category of less protected speech, and also hinted that the law was overbroad (for example, hunting instructional videos might be prosecuted in some jurisdictions). We'll also probably see within the next few weeks the Court strike down the California video game labeling law, on similar grounds.
  5. Dick Whitman

    Dick Whitman Well-Known Member

    If they advertise it. For example, they advertise being a motivational speaker, on the basis of their valor medals. At that point, you evaluate under the Central Hudson Gas & Electric test, and the very first step of that, if I recall, is whether the ad is truthful (though that doesn't necessarily save it - for example, the Fourth Circuit last year held that under the Central Hudson test Virginia can ban alcohol ads in college newspapers).
  6. So (I'm asking here) knowingly, willingly lying is protected by the first amendment?
    Because IMO that's what this is.. This is different than offering a opinion "The President is a jackass."
    This is flat-out lying about things. And it is for gain, though not always financial.
  7. Dick Whitman

    Dick Whitman Well-Known Member

    Yes, it is absolutely protected. I will dig up some case law if you'd like, on the matter.

    Some exceptions:

    (1) Libel/defamation.
    (2) False advertising.
    (3) Perjury under oath.

    Other than that, it's basically let if fly.
  8. Stitch

    Stitch Active Member

    You get into criminal fraud and tort issues. Lying is not illegal on its own, but combined with other circumstances, it can be.
  9. Dick Whitman

    Dick Whitman Well-Known Member

    Because at that point, it's conduct and not speech, right? There was a case in Michigan a few years ago about an Internet threat and if it was prosecutable if the target never saw it. Really interesting stuff if you're into this kind of thing.
  10. Piotr Rasputin

    Piotr Rasputin New Member

    Is impersonating a police officer, or a federal agent, a crime?

    Then this should be too. Don't insult the people who actually served, with your lies.
  11. Stitch

    Stitch Active Member

    Difference is a police office and federal agent serve as officers of government. Lying about a medal to get people to admire you is a bit different, worse personally, but not legally wrong.
  12. Dick Whitman

    Dick Whitman Well-Known Member

    Again, that's conduct, not speech. The law is aimed at the conduct. This law is aimed at the speech itself. That's an unbridgeable gulf, as it should be.


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