The Truth Police: The Supreme Court Takes Up Stolen Valor

Below is today’s column in The Los Angeles Times on the Supreme Court granting certiorari in the Alvarez case and the constitutionality of the Stolen Valor Act. I have long been a critic of the Stolen Valor Act and supported the decision of the Ninth Circuit to strike down the law. Civil libertarians have good reason to worry.

Undo the Stolen Valor Act to Protect Free Speech

Soon after he was elected to the board of the Three Valleys Municipal Water District in Claremont, Xavier Alvarez introduced himself at a public meeting with a lie. “I’m a retired Marine of 25 years,” he said. “Back in 1987, I was awarded the Congressional Medal of Honor.”

That was not Alvarez’s first falsehood about himself. He’d also claimed to have played professional hockey and to have been involved in the Iranian hostage crisis. But it was the Medal of Honor lie that put Alvarez in violation of the Stolen Valor Act of 2005, a law passed by Congress and signed into law by George W. Bush that prohibits anyone from falsely claiming “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.”

Alvarez’s “semper fraud” led to a conviction, which was later thrown out by the Ninth Circuit in San Francisco. The court rightly found that the Stolen Valor Act was an unconstitutional restriction of free speech. Now, ominously, the U.S. Supreme Court has agreed to review that decision.

We have always had fraud laws making it illegal to claim military service or honors to receive financial benefits. Congress, however, wanted to be able to jail people for just telling a lie. While the Stolen Valor Act concerns lying about a military medal, the Alvarez case could establish a legal principle allowing Congress to criminalize virtually any lie – allowing a sweeping new form of regulation of speech in the United States. Politicians have long denounced journalists, political opponents, and whistleblowers as liars, but they could now enact laws that would define some statements as criminal lies subject to arrest.

Lying about military service is a common fib heard in barrooms and board rooms around the country. Traditionally, when people tell such lies, we condemn them. Authors have lost readers, politicians have lost votes, employees have lost jobs when the lies come to light. And sometimes we even forgive them, as was the case with Connecticut Attorney General Richard Blumenthal who won a U.S. Senate seat despite being criticized for falsely claiming to have served in the Vietnam War.

The notion that we should send braggarts and liars to jail may seem odd, but it is part of a long and dangerous trend of criminalizing actions that could be dealt with in other ways. In Texas, lying about the size of a fish in a fishing derby is now a crime, as is snacking on a subway in Washington D.C. Politicians increasingly are insisting that their pet policy peeves should warrant criminal sanctions.

The Stolen Valor Act, however, is a direct attack on free speech and therefore far more dangerous.

It would be comforting to think that no federal judge could believe that the law is constitutional, and the Ninth Circuit did toss it out. But on the original three-judge panel that heard the case in that court, one jurist was willing, if not eager, to give the government the right to arrest citizens for lying. That judge, Jay Bybee, is all too familiar to civil libertarians for his infamous role in coming up with a now-discredited legal justification for the Bush torture program.

It all seems ripped from the writings of the Ministry of Truth in Orwell’s 1984: Bybee, a man accused of falsely bending the law to justify torture, now is a judge arguing in favor of jailing citizens for lies.

Bybee is inexplicably being supported in his assault on free speech by the Obama administration. The administration was not bound to appeal the 9th Circuit’s decision, but it has, brushing aside free speech concerns in its insistence that a “nation’s gratitude for the patriotism and courage” is at stake.

President Obama is likely to find jurists receptive to his point of view on the Supreme Court. It seems unlikely that the justices voting to accept the case did so simply to amplify the views of the Ninth Circuit – the most often reversed circuit in the country. Justices Roberts, Scalia, Thomas, and Alito are all viewed as proponents of police power and opponents of some free speech values. Even some justices on the left may not be reliable votes, including Obama’s nominee Sonya Sotomayor, who was opposed by some civil libertarians for her past rulings against free speech rights.

The power to criminalize lies naturally includes the right to define a lie. Giving the government such power would allow it to target “liars” who it portrays as endangering or dishonoring society. It is enough to make Big Brother blush.

Jonathan Turley is a professor of law at George Washington University.

Los Angeles Times
October 20, 2011

32 thoughts on “The Truth Police: The Supreme Court Takes Up Stolen Valor”

  1. I still see NO response to my question as to whether or not a person should be prosecuted for printing up cards saying that they are an attorney when in fact they are not. If you can criminalize that, then it sure can be done for doing the same with military honors. Or I guess only lawyers are sacrosanct and heroes are not.

  2. I am in complete agreement with JT, mespo, Mike S. and puzzling on this issue. The law and incarceration is not the solution for every problem. In re the “turn in your neighbor” website, to supplement Mike S.’s comment I would simply like to add a “Holy crap! This ends well for nobody.”

    Mike,

    Welcome back. Belatedly, I hope you and Max had a wonderful holiday with the family.

  3. Well said, JT.

    The consequences for those willing to lie about military honors should be disgrace and embarrassment.

    Make the law a capital offense and we can call these honor killings.

    Here are instructions for how to turn in your neighbor.

    1. Puzzling,

      That is one disturbing link, draped in the cloth of reasonable rhetoric. It’s reminiscent of the encouragement given to citizens of NAZI Germany and the USSR.

  4. Mespo,

    You expressed my own feelings elegantly and exactly. We honor those who serve, yet they are to be treated equally under the law. Any preferential treatment endangers our freedom.

  5. This is a difficult issue for me. While I agree that if someone who is running for office or claiming military service and/or honors for financial gain should be actionable, this law seems to go too far. It is part and parcel of the Patriot Act mentality and the politician’s slant to the right since 9/11.
    Culheath asks a good question about Kerry’s Swift Boat attacks that were base on lies. How has the Republican Party and the architects of that Stolen Valor lie been punished?

  6. Arthur Erb:

    I don’t know what “anti-military” means in this context. My father and uncle took fire for this Country as did many of my relatives. I honor their service. I have no problem with national self-defense nor legitimate honors being bestowed on self-sacrificing members of our armed forces in that pursuit. I see military action as a failure of policy rather than its extension, and believe that citizen soldiers deserve our respect for answering the call when politicians fail. I do not however see the military as immune from criticism nor sacrosanct. I find the institution flawed in many ways but, in the main, doing the best they can with what they have. I neither exult nor decry its existence but understand its necessity in the world we live in.

    My comment about military exultism and jingoism was directed at the law and the demagogues who sponsor this type of legislation with the implication that somehow the military and military heroes need more protection than any other institution or person. I find our institutions and heroes equal before the law and see no reason to offer greater protection to winners of the Good Conduct Medal than those winners of the Presidential Medal of Freedom – a civil award. I also believe, like Samuel Johnson, that patriotism is the last refuge of both scoundrels as well as imperialists, and that sometimes it’s hard to tell the difference between the two. In short, I have no problem with heroes or the institution that provided the platform for that heroism. My problem is with their self-appointed protectors who act as much in their own political self-interest as for those they claim to protect, all the while subverting the law which should be designed to protect all of our interests.

  7. .Now wouldn’t that be interesting….lying is a crime prosecutable under the law……hell there goes all the politicians…Now what were those lies that started the war…..

  8. It’s jingoism and military exultism at it’s worst

    While I think the law is overbroad and as the poster says it applies to all awards, it is hardly jingoism. This is the kind of thing that paints the left as being anti-military. All US military action is not illegitimate and imperialist. Nor are all US military persons bloodthirsty baby killers.

    I think the law should be modified to apply only to the top tier awards since almost every vet could possibly be charged under it unless they have a military review of their records to make sure that they have only the awards that they should have. The problem is not that great obviously, but I think it is a reasonable thing to do to ensure that the awards remain as prized things to have. That is necessary to even have a military. Now if you are against any military, then I can see the point of being against such laws.

  9. My legally uneducated belief is that using deception of any kind for personal advancement/advantage is fraudulently wrong. The degree is where the law becomes applicable. To dress up for a costume party is one thing. To run for office based on any lie, for instance, is another and has been punishable for a long time.

  10. “Being in a bar and BSing about stuff is a LOT different from making formal speeches and campaigning for elective office.”

    My, oh my — how many indictments could be returned for statements made during the Republican debates if the general principle is adopted – but that’s one law Congress will never pass.

  11. The law must protect the sanctity of the War Machine and all the honors associated with it, after-all, militarism is the national religion.

  12. Another example of “over-lawing” and finding solutions to problems that aren’t there. It’s jingoism and military exultism at it’s worst. Presumably the law covers falsely claiming a Good Conduct Medal or campaign stripe. The integrity of the award or its legitimate winner is affected not one iota by someone lying about his receipt of the award anymore than falsely claiming membership in a courageous combat unit cheapens that unit’s accomplishments. This is patriotism run amuk and the conservative cabal on the Supreme Court are just the ones to carry water for the runners.

  13. On a related topic, a Seattle businessman who runs an army surplus store had four Medals of Honor on display. His father had bought them forty years ago and the business had the very rare medals in a display cabinet. Some FBI agents shopping in the store saw them and thought they might be counterfeit. Close inspection shows they are not actually counterfeit, but authentic MoH; however, they were never awarded to anyone.

    The business owner turned them over to a real medal of honor recipient, U.S. Army Lt. Col. Bruce Crandall who is now retired. The store owner, Henry Schaloum, received an award of his own: a letter of recognition from Congress for protecting the integrity of the award and keeping the medals out of wrong hands.

    http://www.msnbc.msn.com/id/44966819/ns/us_news-wonderful_world/#.Tp_l8nJWGuJ

  14. There is a complication in California.

    The state constitution in paragraph two, guarantees the right to shout fire in a crowed theater, with the individual being responsible only for actual damages.

    This clause would seem to invalidate the conviction of the Irvine 11.

  15. Kerry lost an election because of Swift Boat lies and we wound up with phase two of the Bush administration horrors. What’s the remedy for that?
    Should people not be accountable for lies that cause damage?

  16. We already do criminalize lies in many areas. If you claim to be a police officer and are not, you can and rightfully will be arrested. I wonder if Prof Turley would think it is OK for a person who is not a lawyer to print up business cards saying that they are in fact a lawyer. I don’t have much of a problem with government being able to criminalize such things because there is a clear cut line as to whether or not it is a lie. There is NO room for debate as to the truth or falsity of such things. The only question that is posed is the lie of such importance that it hurts or threatens an orderly society?
    The answer to that question is a matter of opinion, and so as a veteran I would come down on the side of punishment. I do have a problem with it being applied to verbal matters though. I would think that it should also be put in context. Being in a bar and BSing about stuff is a LOT different from making formal speeches and campaigning for elective office.

    You are also wrong about Blumenthal since he DID serve in the Vietnam war. He did NOT serve in Vietnam though. I believe the question was whether or not he said he was a Vietnam era vet or Vietnam vet. In fact, one can become a member of Vietnam Veterans of America if you served during the war and thus can claim to be a Vietnam veteran without fear of lying.

  17. When abstractions of heroism can be used as weapons against free speech, then we approach the horror of “1984”. The heroism innate in winning a medal like the CMH is not contained within the award itself. Being exposed as a liar and public humiliation is more than adequate punishment.

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