The Better Part of Valor: Should Lying About Medals Be A Crime?

Below is my column today in the Washington Post (Sunday) Outlook Section. The column concerns the Alvarez case to be heard on Wednesday before the Supreme Court. I have been a long critic of the Stolen Valor Act — not because I am not highly sympathetic to its purpose but because I am concerned about the means of achieving that purpose. I share the anger over people who falsely claim to be war heroes. However, the government often selects popular causes for expanding its power over speech or conduct of its citizens. The question before the Court is really not about this specific form of lying, but the legal basis for criminalizing lies generally. The Act is different in that it seeks to criminalize lies simply because they are lies as opposed to lies that are used to commit a specific crime like larceny or fraud or perjury. I also spoke to NPR on Talk To The Nation on this subject.

Xavier Alvarez will soon have something to brag about, assuming anyone believes him. On Wednesday, he will join the small number of citizens who have appeared before the U.S. Supreme Court. He has secured this distinction, however, not by what he achieved in his life but what he falsely claimed to have achieved.

Alvarez, you see, is a liar. Upon that much, everyone agrees. What has perplexed judges is whether his lies are protected by the First Amendment.

In the annals of deceit, Alvarez is something of a standout. After his election to a water board in California, he introduced himself at a public meeting as “a retired Marine of 25 years,” a repeatedly wounded warrior and a Medal of Honor recipient. He also told people that he was once a professional hockey player with the Detroit Red Wings and was secretly married to a Mexican starlet. A few people thought it curious that a former hockey star and war hero ended up on the Three Valleys Municipal Water District board in Claremont, Calif., so far from his starlet wife. It seemed like virtually everything he said about himself after “I am Xavier Alvarez” wasn’t true. He was found out, publicly ridiculed and hounded out of office.

Normally, that would be the end of it. However, for local prosecutors, it was not enough to expose Alvarez as a fraud — they decided to make him one of the first people prosecuted under the Stolen Valor Act of 2005. Signed into law by President George W. Bush, the act makes it a crime to falsely claim “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” Across the country, a number of rather pathetic individuals are being prosecuted for parading around in uniforms and pretending to be heroes.

The problem with the law they may have broken is not just that it is unnecessary, but that it can be dangerous to criminalize lies. After all, with the power to punish a lie comes the power to define the truth — a risky occupation for any government.

After Alvarez was convicted, he challenged the constitutionality of the law, claiming that it violated his First Amendment rights. The federal court of appeals in San Francisco ruled in his favor in two separate opinions. Now the case will go to the Supreme Court, where the Obama administration will argue that the First Amendment does not protect lies as it does true statements.

Under this logic, Congress would be able to criminalize statements solely because they are lies, alleging some type of amorphous social harm. The government would become the truth police, determining when fibs become felonies.

Lying about military service is a long and dishonorable tradition, standard since the founding of the republic. Some of our greatest colonial heroes were accused of lying about their military records. Gen. Friedrich Wilhelm von Steuben, who served in the Continental Army during the American Revolution, passed himself off as a “lieutenant general in the king of Prussia’s service” when it appears that he not only had been discharged under a cloud of controversy from the King of Prussia’s service but had achieved only the rank of captain.

The Stolen Valor Act criminalizes what many view as a common human impulse. When the issue was raised before the federal appeals court, Chief Judge Alex Kozinski balked at the notion that lies can be crimes in a society saturated by untruths. “Saints,” he noted, “may always tell the truth, but for mortals living means lying.” Kozinski is supported by a host of studies on the human propensity, even necessity, to lie. This tendency to shape the truth can combine with a certain human inclination toward fantasy.

While common, lies have limits. The dividing line in the law has always been fraud or related crimes — using lies to gain money or benefits. When someone lies about their military service or makes other claims, such as an incurable illness, to enrich themselves, it is a crime. It is not the lie but the larceny that is being prosecuted. But the Stolen Valor Act was designed to address cases in which the individual is not deriving financial gain or other benefits; rather, the law punishes the boast or the brag itself.

Faux warriors tend to be liars who take the added step of merging their fantasy lives with their actual lives. Darrow “Duke” Tully, once a close associate of Sen. John McCain, often discussed his harrowing moments as a combat pilot with 100 missions over Vietnam and told of surviving the crash of a fighter jet in Korea. It turned out that he did not receive the Purple Heart, the Distinguished Flying Cross or the Vietnam Cross of Gallantry — he was never even in the military. For Tully, the penalty was public shame and the loss of the respect he had enjoyed as the publisher of the Arizona Republic.

The people who take their fantasies to the extreme of wearing uniforms and medals are few, and they are usually easy to spot. When Michael Patrick McManus walked into a party for Houston Mayor Annise Parker in 2010, he was covered in military medals, including paratrooper jump wings and a chivalric medallion indicating that he was a Commander of the British Empire.

For these individuals, the desire to self-promote is often irresistible and eventually insatiable — even when they take things to absurd levels. When former Marine Staff Sgt. David Weber promoted himself to a two-star major general with two Purple Hearts, he was quickly uncovered by someone who simply looked at the relatively short list of generals. Likewise, Illinois judge Michael F. O’Brien was exposed after he sought special license plates to go along with the Medal of Honor he claimed to have earned. He was denounced and forced off the bench.

Steve Burton, a bank employee from Palm Springs, Calif., was uncovered at his high school reunion in 2009 when he appeared in the uniform of a Marine lieutenant colonel decorated with an array of medals, including the Purple Heart, the Bronze Star and the Navy Cross. All were recognitions, he claimed, from a grateful nation for his service in Afghanistan and Iraq. Unfortunately for him, he ran into a former classmate who was a real Navy commander and who exposed him as a fraud.

These stories, and the public ridicule that comes with the make-believe, show that we have little tolerance for fake heroes and ample means to detect them. The Stolen Valor Act merely adds a criminal charge to public scorn.

Supporters of the bill insist that prosecutions are needed to maintain the value and dignity of our military citations. The Congressional Medal of Honor Foundation has taken this argument one step further in its amicus brief to the Supreme Court. It says these medals are not just recognitions of heroism but the very inducement for heroism. It chastised the federal court for its “lack of appreciation” when the court said it was insulting to suggest that heroes are motivated by the desire for medals. The foundation insisted that heroes do seek these medals in risking their lives, curiously citing the tradition of Roman generals giving spears and cups to soldiers who distinguished themselves in battle.

Putting aside the question of whether these frauds discourage real heroism, the implications for free speech are chilling. If the government can criminalize lies about medals, it can criminalize lies about other subjects. If it is harmful to lie about soldiers, what about lying about being a former police officer or a former firefighter? How about lying about politicians or religion or terrorism?
Once we criminalize lies, someone must determine what is a lie and what is harmless embellishment. One person who appears comfortable with that role is Judge Jay Bybee, who wrote one of the dissenting opinions in the Alvarez case. Bybee, who was an assistant attorney general in the Justice Department’s Office of Legal Counsel from 2001 to 2003, is one of the authors of the Bush administration’s infamous “torture memos.” These memos justified the use of waterboarding and were later retracted by the Bush administration as “flawed.” Bybee was accused of misrepresenting legal authority to justify what many view as not just a torture program but a war crime. That form of falsehood, however, appears protected — the Justice Department didn’t even report Bybee to his bar association.
In my view, misrepresenting legal authority to defend torture is far more damaging to the nation than someone prancing around with a Silver Star and some French Foreign Legion medallion.

The First Amendment protects free speech, not just truthful speech. It exists to give a certain breathing room to citizens to avoid the chilling effect of the threat of prosecution. Free speech is its own disinfectant. It tends to expose lies and isolate liars. But it means that we often protect speech that has little value in its own right. We are really not protecting the right of Xavier Alvarez to tell lies. We are protecting the right of everyone to speak, even when they may be called liars.

As for our heroes, they are no more diminished by pathetic pretenders than top singers are diminished by bad karaoke. We know the real thing when we see it.

Jonathan Turley is the Shapiro professor of public interest law at George Washington University.

Washington Post (Sunday), February 19, 2012.

48 thoughts on “The Better Part of Valor: Should Lying About Medals Be A Crime?

  1. Medal of honer, medal of honer?:It should be a medal of shame. All war is shameful. God sees human throwing their souls away, and weeps. Why make God weep?

  2. The medalist screwed up. Along with the First, he should have TakenThe Ninth. That is the Ninth Amendment Right of Privacy. When one wears a medal, a tatoo, a Flag lapel, a Bybee For Congress button, one does not have to disclose where they got the item. Like where did WaterBoarder Bybee get his law degree? While we are on the topic of liars. A guy like Bybee would have been prosecuted by the United States at the Nuremberg Trials. Herr Altstoeffer and Herr Bybee are from the same neighborhood. Please Google : The Judges Trial- Nuremberg. Dismanteling laws intended to protect civil liberties, life and property. I hope that people show up for the oral argument with some faux medals on. Westminster Dog Show Hero of The Year.
    Just a Dog Talkin. I am back.

  3. This is a law that would fall under the category of “superfluous laws”. By that I mean laws written for no purpose other than to enhance the credentials of its sponsors. If one lies and by lying does no harm, nor receives no illegal gain, then they have the right to do so as a matter of free speech.

  4. I’m with the Professor on this one. The best thing that should happen is that if these liars trade on their stolen valor for public consumption to enhance their consideration for advancement or public gain then they need to be exposed.

  5. For once I totally agree with you Professor. I know of a teacher that lied about his military past among other things. While wrong I do not believe that that teacher should be prosecuted for his lies. This is a really big case.

  6. Mike Spindell, I agree with you on everything except the primary motivation for the sponsors of these laws. I am sure for some of them it is mere padding to show they are “doing something” but for many, especially those laws passed in that time period, these sorts of laws are about testing the waters as to how far they can go in eroding our freedoms. The Patriot Act is much the same.

  7. And don’t forget the employment factor and expansion of a profitable industry: Detection, trial, and incarceration for long terms.

    America shall lead world again, as Obama promised.
    The first to outlaw lies, all categories. We got the tip from the Saudis.
    But they’re only pikers, just Mohammed, the king, and a few other “minor” infringements are protected from “lying”.

    Funny, I didn’t see George coming down from the mountain with tablets.
    I thought he was coming back from his “grass” plantation, mumbling about God’s mission for him.

    Otherwise, I’m with Christine Noble.

    PS Why didn’t we follow the Talmudic path, not the documents, but the one allowing human oriented persons to interpret our Constitution, instead of a power center, SCOTUS?

  8. raff,

    I think you are correct…. when you start penalizing liars…you can start in the courtroom and quickly move to expert witnesses…. they can be the biggest liars….depending how much you pay them…..

  9. Artiewhitefox,

    You may have picked the wrong venue to spout your hate. Some of us here have kids serving in harms way, and others of us have lost family members. You appear to be ignorant of the fact that the Medal of Honor is almost always awarded to heroes who ignore their own wounds and risk their own lives to save others. Three of our most recent recipients were awarded the MoH for fallinig on hand grenades, saving the rest of his buddies in the at the cost of his own life. The fourth in Afghanistan, SFC Paul R. Smith, held an attacking squad of enemy at bay. allowing for the wounded to be carried out. Sgt Smith died in the process. One of my distant cousins was awarded the MoH while trying to secure a helicopter crash site so the wounded could be evacuated.

    The one woman MoH recipient was Dr. Mary Edwards Walker, a Civil War surgeon.

    The first African-American to be awarded the MoH was Sgt. William Harvey Carney who, despite being shot in the face, shoulders, arms, and legs, refused to let the American flag touch the ground.

    Take your verbal diarrhea someplace else.

  10. Well said, JT.

    Meanwhile the prosecutions continue:

    BATON ROUGE, LA—United States Attorney Donald J Cazayoux, Jr announced that a federal grand jury returned an indictment on Thursday, February 16, 2012, charging ANDREW I BRYSON, 31, of Baton Rouge, Louisiana, with falsely claiming to have been awarded the Purple Heart and unauthorized wearing of military medals. BRYSON faces a maximum sentence of two years in prison and fines of $200,000.

    The indictment alleges that BRYSON falsely represented himself to have been awarded the Purple Heart in an attempt to defraud the Louisiana Office of Motor Vehicles and obtain a military honor license plate for Purple Heart recipients. BRYSON is also charged with wearing several military medals and ribbons, namely the Purple Heart and Joint Service Commendation medals, at an awards ceremony honoring veterans without authorization.

  11. The military takes this kind of thing seriously, but still, some do it anyway. I recall there was a scandal during the Clinton administration where an Admiral committed suicide after being caught wearing an unearned “V” device on one of his ribbons.

  12. OS
    Touched a nerver did the Afox dude.
    I can understand that, but I thought it was war being attacked, not (s)heroes.
    Or duped participants, surrogates for the rich, those (currently) who have little better choice, and thus bearers of weapons where hegemony needs martial reinforcement.
    I sympathize with you, having served myself, and for purely humanitarian reasons as well.
    Some prefer to walk the uncertain edge of the abyss to maintain world control. Is this inevitable? We’ll likely never know.
    Be glad for their faithful service. Would that we were prepared to equal sacrifince here at home. The constitution needs defending, and there are so many traitors affirming false declarations of allegiance.

  13. I-707, afox jumped the shark by calling it the “medal of shame,” which is a personal attack on my family as well as all those who cannot speak for themselves. More MoH are awarded posthumously than any other medal. Some cannot separate the warrior from the war. War is a failure of diplomacy and the old gobblers in the halls of power who will never hear the whine of a bullet passing by their heads. The nineteen and twenty year old kids who die on foreign soil are not to blame for the failings of their commanders.

    Look at the numbers of our own Presidents who have actually looked over a gunsight at an enemy. Just a handful. Eisenhower was a high ranking officer who commanded men, but never had to crouch in a foxhole himself. His predecessor and successor in the White House had seen actual combat. GHW Bush was a highly decorated Naval Aviator who knew when to quit in Iraq. His son, who went AWOL and disgraced the uniform, not so much.

    If we had more political leaders who are combat veterans (not just veterans), they would not be so eager to go fight wars on foreign soil.

  14. Several years ago I was nominated to be a recipient of the medal of honor.

    …..So, did I just lie or not? Am I in violation of the SVA or not?

    I decided not to accept the honor.

    …..Same questions.

  15. OS,
    Missed the “medal of shame”. There can be no shame in their deeds,
    Shall we also honor JFK?
    Did you read Profiles in courage. I did not, campaign literature, I thought.
    But maybe it had some interesting historical comparisons. Probably not.
    JFK was briefed by Ellsberg when visiting Vietnam, very early on as a Senator. It’s in “Secrets”.

  16. “The FBI reports that in 2009 alone, it was “tipped off” to more than 200 fraudulent representations. The Chicago Tribune studied obituaries and Who’s Who and compared them to military records for a 2008 series on people claiming to have received medals of valor. The investigation found that of 273 obituaries published in the last decade, four out of five claims of having received decorations for bravery were untrue. Of 333 Who’s Who declarations claiming a high military medal, a third proved to be false. Fifteen of the untrue Who’s Who claims related to receiving the Medal of Honor.”

    http://www.calbarjournal.com/November2011/TopHeadlines/TH1.aspx

  17. The dissenting judges, who wanted an en banc hearing, and who appointed them are: O’SCANNLAIN (Reagan), GOULD (Clinton), BYBEE (Bush II), CALLAHAN (Bush II), BEA (Bush II), IKUTA (Bush II), N.R. SMITH (Bush II).

    That is 7 out of 44 9th Circuit judges.

  18. Those who give the illegal orders to make war and the thereby medal winners commit war crimes. Those who follow the illegal orders are also committing war crimes. We need a better jobs program at home so there are no soldiers to send to whatever target the corporate world wants.

    If we are attacked, and not by false flag, I will join the front lines in defense.

  19. On the specific topic, I should be able to say whatever I want about myself – and be prepared to take whatever social backlash there may be should I be exposed. It should not be illegal. Maybe the military copped a bribe: protect their precious medals from pretenders and they won’t make a big deal of chicken hawks in the administration, including the deserter in chief.

    Lying in order to make war should be illegal. Isn’t it fraud? Telling lies that lead directly to killing and maiming?

  20. Kairho 1, February 19, 2012 at 9:28 am

    Several years ago I was nominated to be a recipient of the medal of honor.

    …..So, did I just lie or not? Am I in violation of the SVA or not?

    I decided not to accept the honor.

    …..Same questions.
    ======================================
    Did you do so under your real name (Kairho) or an alias or a handle?

    That raises an interesting problem, would the law apply if one’s real name was not used when making the false claim?

    The answers to all these questions depends on what the Supreme Court will do.

  21. “Mike Spindell, I agree with you on everything except the primary motivation for the sponsors of these laws.”

    Christine,

    I agree with your expansion of the reason I gave hastily. There is a portion of people who support laws like this who are looking to expand repression.

  22. eniobob 1, February 19, 2012 at 10:03 am

    “The FBI reports that in 2009 alone, it was “tipped off” to more than 200 fraudulent representations. The Chicago Tribune studied obituaries and Who’s Who and compared them to military records for a 2008 series on people claiming to have received medals of valor. The investigation found that of 273 obituaries published in the last decade, four out of five claims of having received decorations for bravery were untrue. Of 333 Who’s Who declarations claiming a high military medal, a third proved to be false. Fifteen of the untrue Who’s Who claims related to receiving the Medal of Honor.”
    ===============================================
    That tends to support Chief Judge Kozinski’s elaboration on the proliferation of untruth that is rampant in the nation.

    There is a book “On Bullshit“, by H.G. Frankfurt that also fits.

  23. As with so many free speech issues we have to think further than our initial, often emotional, reactions to really understand the ramifications of a proscription of speech. Prof Turley has done that quite well here, showing us the possible unintended consequences that lie in having this knee jerk law on the books.

    It’s the dangerous precedent that it sets that threatens our freedom and liberty. We must think these things out. I hope that wisdom will be forthcoming from the Court.

  24. I agree that this type of laws are unnecessary and dangerous. I must echo what OS said about the real medal winners. They are heroes for actually making a life and death decision on behalf of their comrades and their country. They are not politicians who decide when we go to war, but they answered the call. My son put his life on the line as a Marine in Helmand Province last year and it was the toughests year of my life. They will always be heroes, no matter what artiewhitefox says.

  25. Someone gave me a link to Kantian “categorisk imperative”.
    After an only casual consideration, I concluded it gave man the ultimate out of being delusional as cause for his mistakes. “I did my best and according to this principle, not out of self-service.”
    For example, the “out” of “duty” as an imperative.
    Seems we heard enough of that after WW2.
    Relevant as to the “higher” motives of warmongers? Survival of whatever?

  26. I don’t know…..could be something good here. Just imagine Jon Kyle’s “not meant to be factual”, or Newt’s “Kenyan anti-colonialist” entire Bush admin’s WMDs, just about everything that comes out of Romney’s mouth, Bdadam’s climate crud. Sorta brings me a piece of mind that I haven’t had since the Scotus 2000 election decision.

  27. […] Here’s Turley’s take on the case that will be heard this week by the United States Supreme Court: “Once we criminalize lies, someone must determine what is a lie and what is harmless embellishment. One person who appears comfortable with that role is Judge Jay Bybee, who wrote one of the dissenting opinions in the Alvarez case. Bybee, who was an assistant attorney general in the Justice Department’s Office of Legal Counsel from 2001 to 2003, is one of the authors of the Bush administration’s infamous ‘torture memos.’ These memos justified the use of waterboarding and were later retracted by the Bush administration as ‘flawed.’ Bybee was accused of misrepresenting legal authority to justify what many view as not just a torture program but a war crime. That form of falsehood, however, appears protected — the Justice Department didn’t even report Bybee to his bar association. In my view, misrepresenting legal authority to defend torture is far more damaging to the nation than someone prancing around with a Silver Star and some French Foreign Legion medallion. The First Amendment protects free speech, not just truthful speech. It exists to give a certain breathing room to citi- zens to avoid the chilling effect of the threat of prosecution. Free speech is its own disinfectant. It tends to expose lies and isolate liars.” ~Read more @ JonathanTurley.com […]

  28. “The recognized constitutional remedy for false speech, as Justice Louis D. Brandeis famously said, is not suppression but “more speech.”” (from the following article)

    http://www.nytimes.com/2012/02/20/opinion/is-there-a-right-to-lie.html

    “Is There a Right to Lie?”

    by WILLIAM BENNETT TURNER
    Published: February 19, 2012

    Berkeley, Calif.

    Excerpt:

    “The public humiliation that follows such exposure is punishment enough. The recognized constitutional remedy for false speech, as Justice Louis D. Brandeis famously said, is not suppression but “more speech.” The court should reject Congress’s attempt to police what we are allowed to say about ourselves.”

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  30. Reblogged this on Glory to man in the highest and commented:
    I am not familiar with the details of this case but the government should not be able to outlaw real (or imagined) lies unless connected to fraud.One might support outlawing counterfeiting government medals,but this goes beyond that I believe.

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