It makes me nervous that the Supreme Court has decided to hear a challenge to the Stolen Valor Act.  I am worried that they will uphold it’s constitutionality.  The courts should not be in the business of evaluating the nature of lying in non-commercial speech unless it amounts to civil or criminal fraud resulting in direct, quantifiable harm for which  we already have laws on the books.  The Stolen Valor Act provides as follows:

(b) False Claims About Receipt of Military Decorations or Medals.— 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.  (c) Enhanced Penalty for Offenses Involving Congressional Medal of Honor.—

‘Let’s take a goofy but valid hypothetical:

On any given night in Dallas, Texas there are guys hitting the nightclubs armed with their maxed out credit cards, fake Rolex watches, and persona’s of lies and deceit. Their goal? To get laid.  On this particular night we find our 30k millionaire, Trent  at the hot club in town telling women among his many pieces of bullshit that he won the Medal Of Honor in Afghanistan. Gilda Goldigger, in addition to being attracted to the fake Rolex on Trent’s wrist,  is a sucker for men in uniform.  She is a hottie and could have had any douche in the club this night but the Medal of Honor story put her over the top.  Trent got lucky that night.  The next day, Gilda decides to ask around and do a little research on the new “war-hero” man of her dreams.  It turns out that not only is Trent not a Medal of Honor winner,  he never served in the military.  The worst cut of all is that his Rolex is fake.  Gilda however, is no dummy and and wont be suffered the fool.  She reads the news. She is aware of the Stolen Valor Act.   She gives the local authorities a call. The next day Trent is arrested by the FBI  for lying about his  Medal Of Honor in violation of The Stolen Valor Act.  Trent is now facing a year in federal prison for trying to get laid. Let’s take  out the issue of whether Gilda’s chastity is something of value. Gilda recognizes the fake Rolex and shuts him down.  Same result.  The Stolen Valor Act approaches a strict liability crime on par with threatening the President of the United States. With the normal exceptions for parody, and such,  You utter the words and you’ve broken the law.  No intent for anything to happen is required.

As despicable as lying about military service and honors is,  do we want to penalize this type of nightclub douchery and other pure speech b.s?   Speech uttered for no quantifiable financial gain or other criminal purpose.   What is the goverment interest to criminalize such  speech other than it offends our sensibilities?  It presents no danger to society.  It defrauds no one in the legal sense.  Will we next criminalize false claims of being a 9-11 First Responder?  What about denying the Holocaust? As a Jew  I find that incredibly offensive.  That dreaded slippery slope.

The issue is not whether lying about Military honors is bad. It is. It’s despicable.  Shame on anyone who does it.  The issue is whether we want to goverment intruding on our ability to open our mouths and speak in the most inane of circumstances with nothing more at stake than our self respect.

I for one, don’t.

Most do not know that I have actually served in the military. Between my 1st and 2nd year in law school I spent a whole 3 weeks  in the Marines Officer Candidate School at Quantico Virgina before I was drummed out for knee and foot problems.  During that three weeks the only combat I  saw was the daily verbal assault from my Sergeant Instructor about my unworthiness to be a Marine. (He turned out to be right).  The only heroic deed I accomplished was to not cry when I was being yelled at.

I do have some regrets about not being of the caliber the Marines were looking for. Not being one of the Few Good  Men.  If I stayed, I may have been deployed to Desert Storm which is where many of the the people I was in with ended up.  Maybe I would have went on to save my platoon, fallen on a grenade, some other heroic deed.  Hopefully I would have  lived to tell about it and received my medals, maybe even the “Medal Of Honor”.  In the end, the closest I have come to Marine bravery since is finishing the Marines Corps Marathon with a personal best of 3:27.

The Medal of Honor is the highest award for valor in action against an enemy force which can be bestowed upon an individual serving in the Armed Services of the United States. Generally presented to its recipient by the President of the United States of America in the name of Congress.  The bravery required to receive this honor are chronicled in the heroic acts of the living and dead since 1861.

In 2005, Congress felt so strongly about protecting the memory and integrity of military awards  and the “integrity of valor” inuring to military  medals from those falsely claiming they have received them, that the Stolen Valor Act was passed, signed into law in 2006 by President George W. Bush Jr.  The law expanded a previous law against fraudulently wearing a service medal to include falsely representing that one had received that honor. Violators can be fined or jailed for up to six months.

In essence, the new law criminalized lying.  Not just lying about having received a medal to profit in some way but lying for ANY reason.  The constitutionality of this under the 1st Amendment is about to be tested.  Attorneys in Colorado and California are challenging the law on behalf of two men  charged under The Stolen Valor Act taking the position that the First Amendment protects almost all speech that doesn’t hurt someone else.

While I disdain those who would dishonor the honor paid for so dearly by thous fighting for democracy,  I also hold the 1st Amendment in the highest regard. While those lying for the sake of lying are not engaging in any act personifying the debate that embodies the “idea of free speech” such as burning the flag which is protected, they are also not engaging in conduct that creates any “tangible” harm, only perceived intangible harmed.  To criminalize this when it is not an element of another criminal act such as fraudulently claiming medals for profit,  personifies the essence of the “thought police” and is not what our military brethren paid for with their lives and limbs in receiving such medals.

The Stolen Valor Act to the extent it criminalizes lying for the sake lying is unconstitutional and should be struck down.