Pretend military heroes could face up to a year in prison under the latest version of the Stolen Valor Act, which President Barack Obama signed into law Monday. It’s a bill nearly identical to one the Supreme Court deemed unconstitutional just last year.
Congress passed the original version in 2005, making it illegal to falsely claim certain military awards or honors, such as the Congressional Medal of Honor, in any setting. The U.S. Supreme Court struck it down on First Amendment grounds, saying lies were a protected form of free speech.
The Stolen Valor Act of 2013, however, has one key difference that sets it apart from the 2005 version: It likens the lie to fraud and makes it illegal to falsely claim military honors for the purpose of obtaining “money, property or other tangible benefit.”
“I’m pleased that the valor and integrity of our military awards, along with the men and women who have earned them, are once again protected by law,” said Rep. Joe Heck, R-Nev.
Ken Paulson, president of the First Amendment Center, said the distinction between the two versions is important.
“The 2005 Stolen Valor Act could’ve been used to punish a braggart in a bar,” said Paulson. “The 2013 version can’t do that.”
Xavier Alvarez was one such braggart, though he didn’t do his boasting in a bar.
After being elected to the board of the Three Valleys Municipal Water District in California, Alvarez lied while introducing himself at a board meeting by saying he had received the Medal of Honor. In 2007, he was charged under the Stolen Valor Act, pleaded guilty and then challenged the law on First Amendment grounds; he ultimately won a 6-3 decision from the U.S. Supreme Court.
The newly signed law probably would survive judicial scrutiny, according to First Amendment experts. But they’re still leery of the bill, saying it is unnecessary and therefore disruptive to freedom of speech.
“The 2013 version is better than the one that was struck down, but it’s still not necessary,” said Gabe Rottman, legislative counsel for the American Civil Liberties Union. “Fraud is already illegal.”
Both Rottman and Paulson expressed concern that the phrase “tangible benefit” was ambiguous and could mean problems later in defining what tangible benefits include. They would have preferred the bill stick to more easily defined language such as money and property.
Supreme Court Justice Anthony Kennedy, who authored the majority opinion in U.S. v. Alvarez, said the 2005 Act was unconstitutional because of its chilling effect on freedom of speech. He also said the public ridicule and contempt Alvarez suffered after lying about receiving the Medal of Honor was an appropriate form of punishment.
“Once his lie was made public he was ridiculed online, his actions were reported in the press and a fellow board member called for his resignation,” Kennedy wrote. “There is good reason to believe that a similar fate would befall other false claimants.”
Justice Samuel Alito, who authored the dissent, wrote that in the past, limits to free speech included lies that caused harm and served no legitimate interest. He also pointed out that it’s a federal offense for anyone to wear, manufacture or sell certain military decorations and military uniforms without authorization.
Rottman said that while it’s hard to say for sure because of the phrase “tangible benefit,” he doesn’t think Alvarez could’ve been charged under the 2013 version. He believes judges will apply the law in a similar way they do fraud, which means the tangible benefit would have to be something material or something that helped the guilty party win some sort of elected position.
The Senate unanimously approved the 2013 version, and only three members of the House voted against it: Reps. Paul Broun, R-Ga.; Thomas Massie, R-Ky.; and Justin Amash, R-Mich.
Veterans’ interest groups, such as Veterans of Foreign Wars and AMVETS, strongly supported the legislation. VFW chief John E. Hamilton, a Purple Heart recipient, said veterans are “very pleased” with the legislation.
“We want all con artists to pay a very severe penalty – and a very public price – for daring to steal the valor of those too few who survived and of the great many who did not,” Hamilton said.
Jay Agg, national communications director at AMVETS, said he believes it “answers the Supreme Court’s issue with the First Amendment question on lying being a form of speech.” AMVETS also supported the 2005 version.
Violators of the newly passed law could face fines and up to a year in prison.