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.