Did I Ever Tell You About My Medal of Honor?

This week the U.S. Supreme Court agreed to hear a First Amendment challenge to the Stolen Valor Act, a 2006 law that makes it a misdemeanor to falsely claim one has received "any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces." The penalty includes up to six months in jail for most medals and up to a year for a Distinguished Service Cross, an Air Force Cross, a Navy cross, a silver star, or a Purple Heart. The Supreme Court case involves Xavier Alvarez, who as a freshly elected Southern California water district director introduced himself thusly at a 2007 public meeting:

I'm a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I'm still around.

As a panel of the U.S. Court of Appeals for the 9th Circuit observed in a 2010 decision (PDF), "Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of  'I'm still around,' his self-introduction was nothing but a series of bizarre lies." The court nevertheless agreed with Alvarez that he has a First Amendment right to make shit up, at least when his lies do not fall into a traditionally proscribable category such as fraud or defamation (which require additional elements beyond knowing falsity). The majority said the Stolen Valor Act "concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie." If that standard were adopted, it warned, "there would be no constitutional bar to criminalizing lying about one's height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one's mother that one does not smoke [or] drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway."

Concurring with the full court's decision (PDF) not to rehear the case, Chief Judge Alex Kozinski likewise worried about the "terrifying" implications of upholding the law Alvarez violated:

If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won't hurt a bit. Phrases such as "I'm working late tonight, hunny," "I got stuck in traffic," and "I didn't inhale" could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as "rational basis review."

In his Supreme Court petition, Solicitor General Donald B. Verrilli Jr. argued that Congress has the authority "to guard against dilution of the reputation and meaning of the medals" and that the law "serves a compelling interest in protecting the integrity of the military honors program, thereby preserving the medals' ability to foster morale and esprit de corps in the military." But he may regret that the Court agreed to hear the case. As New York Times legal reporter Adam Liptak notes, "The Supreme Court under Chief Justice John G. Roberts Jr. has generally been sympathetic to free speech claims, ruling in favor of protesters at military funerals, the makers of violent video games and the distributors of materials showing cruelty to animals."

By the way, do you notice anything conspicuously missing from that list? Although the ability to freely discuss politics is at least as important as the ability to sell Grand Theft Auto or dog fight videos, for some reason Liptak leaves out the landmark First Amendment case Citizens United v. FEC. I might ascribe that omission to his paper's bias in favor of campaign finance regulations, except that Liptak himself recognizes the free speech issues raised by such rules, citing Citizens United to illustrate the Roberts Court's "robustly libertarian view" of the First Amendment.

SCOTUSblog has background material on United States v. Alvarez here. Last year Matt Welch noted Bob Barr's criticism of the Stolen Valor Act.

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  • rts||

    the white lies, exaggerations and deceptions that are an integral part of human intercourse

    I see what you did there.

  • ||

    The majority said the Stolen Valor Act "concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie." If that standard were adopted, it warned, "there would be no constitutional bar to criminalizing lying about one's height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one's mother that one does not smoke [or] drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway."

    Why, if they criminalized lying, every President, Cabinet Member, Congressman, Governor, Member of a Legislative assembly, Mayor, etc would be in prison.

  • TrickyVic||

    They will criminalize only the lies they don't want you to tell.

  • Mean Girl||

    Yup. The Zionist Jews control Wall Street. Stuff like that.

  • I Support Occupy Wall Street||

    That's not a lie.

  • Booger||

    Retard

  • ||

    The Constitution immunizes them from this (A1S6):

    They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

  • T||

    "serves a compelling interest in protecting the integrity of the military honors program, thereby preserving the medals' ability to foster morale and esprit de corps in the military."

    The military has already done enough damage here. Handing out bronze stars like candy to everyone at higher headquarters while line troops get nothing has a tendency to do that. Some schmuck who lies about it can't do much worse.

    In any event, most fake military guys set off the bullshit detectors in real veterans pretty quick.

  • ||

    Well put.

  • romulus augustus||

    Can you clarify this Bronze Star remark?
    Every WWII obit I read, where someone served at any level, seems to mention "he was awarded a bronze star"
    and even multiple bronze stars. Did virtually every front line soldier get one in WWII?

  • ||

    I can't speak to WWII, but having been deployed twice to Iraq, I can assure you that, at least in the army, everyone in the ranks of E-7 (Sergeant First Class) and above -- including all commissioned officers -- are routinely awarded Bronze Stars for deploying, regardless of what their particular jobs were. We had logistics officers whose primary jobs were playing Freecell taking home Bronze Stars, while the lower ranking guys were lucky to get Army Commendation Medals.

    It may have a distinguished history, but in today's military, the Bronze Star is a meaningless badge awarded purely to pad promotion packets.

  • ||

    So, like the time me and some other law students were telling some girls in a Chicago bar that we were in midwife school--that was legal?

  • ||

    About as legal as Warty telling you he was a proctologist.

  • Gojira||

    Apparently it was, as long as you didn't claim to have gotten a medal for your efforts.

    I can see this getting confusing real quick, because some kids might lie about getting a "gold star" for their school work, which sounds suspiciously like several military awards.

  • ||

    We kind of went on about the sacred tradition of midwivery.

    Don't very far in Chicago talking about being in law school, what with six law schools in the city and 50,000 lawyers.

  • Gojira||

    Have you tried telling them you are a "community organizer"?

  • ||

    No. I didn't know such things existed when I was in law school, long ago. I did reject a suggestion that we misrepresent ourselves as firemen from Gurnee.

  • Alan Vanneman||

    Why do I wonder if the idea that careless use of the phrase "I'm working late tonight, hunny" might make one a criminal was of particular concern to Chief Judge Alex? Does CJ possibly like to address his wife as "hunny"?

  • Bradley||

    No one cares.

  • ||

    I once knew a guy who had won the Victoria Cross - the highest military decoration in Commonwealth countries.

    He absolutely would not talk about it. If you asked him about it, he would leave (or ask you to leave if you were in his house.)

  • ||

    I understand. It's like me not talking about my Nobel Prize.

    Legal, bitches!

  • Paul||

    It's an interesting first amendment case. I can actually see arguments on both sides. So I don't have much of a dog in the fight.

    But there's something massively smarmy about claiming you're a CMOH winner, and to suggest that it doesn't, at some point, constitute fraud is dubious. I mean, what organization wouldn't be proud to have a CMOH winner on their team?

  • ||

    I'm not familiar with the details of the case, but a lie alone should be protected, unless someone suffers an actual loss as a result.

    And, yeah, it's a dick move.

  • Paul||

    I generally agree that speech should be protected, and the test of our will to protect it when it's most odius.

    But going back to Alvarez. Who would even TRY to claim the CMOH? Aren't there like 12 living recipients or some such low number?

  • ||

    We passed the stage where mere hubris is objectionable, what with all of the spin that goes on anymore. No surprise someone would do something like this.

    It's a damned shame, though. So much bullshit.

  • Paul||

    Ok, I was wrong, a quick perusal of the official CMOHS site shows (approx) 80 living recipients. But still. That's pretty rare company. And uh, it's right there on the website.

    To claim that honor shows two things:

    1. You've got some serious balls.
    2. You assume everyone else around you is retarded.

  • ||

    I think he was representing himself as one who received it posthumously. That list is a lot longer.

  • Art-P.O.G.||

    I LOLed.

  • ||

    I think there are more than that, but IIRC, only 12 people have been awarded it twice.

    WRT to Alvarez himself, I wouldn't object to funding someone to follow him 24/7 crying "shame".

  • Paul||

    Jeebus, I didn't catch that. 12 people awarded twice? What kind of messed up shit did they have to do to get it twice?

    I say if you get it twice, you get to retire to an opulent chateau at government expense for life with a sitting senator and member of congress doing rotating shifts as your personal butlers.

  • Ska||

    Close - your personal ottomans.

  • steve||

    might be 19th century medals. They seemed to give them out a little more freely back in the civil war days. They've tightened it up since then.

  • The Art-P.O.G.||

    My understanding is that this is why lesser awards like Bronze Stars and ARCOMs were developed. Because at one point I believe it was Medal of Honor, Purple Heart, or nothing.

  • SFC B||

    This is a big part of the decline in the awarding of the MOH, Distinguished Service Cross, and Silver Star. Until WWII the only awards for valor were the MOH, DSC, and SS. During WWII the Bronze Star, and ARCOM were added. Now we have several generations of Soldiers raised in a world where awards like the DSC and MOH are only awarded for actions of a near superhuman, and often fatal, effort.

  • romulus augustus||

    Yeah, in Civil War you could get MOH for picking up a rebel regiment's flag after a fight and taking it to your commander.

  • ||

    I've often observed with no small amusement that a great number of Medal of Honor recipients were in violation of direct orders at the time they performed the deeds that earned them the award. (President Obama alluded to that fact when he handed out the most recent MoH.)

    Basically, if you manage to get yourself killed while disobeying orders, you just might win yourself posthumous glory; but if it all works out for you, you're probably fucked.

  • In Time of War||

    Not only is it a dick move, it's a stupid dick move. CMOHS.org has an easily searchable site that lists every single recipient along with their citation, picture, etc. Lying about a Medal of Honor borders on full retard.

  • ||

    I say simply forgo medals all together and award soldiers big cash prizes for going above the call of duty.

  • Paul||

    I'd rather have the CMOH. Even the President has to salute your ass.

  • ||

    How about an award that exempts you from Federal Taxes until the day you die?

  • Paul||

    They already have that. But it requires that you opt for early death before you actually die.

  • Benjamin Franklin Gates||

    That sure as hell didn't work out for me

  • ||

    A friend of mine in the army once said if he ever got CMOH that he'd never take it off and just walk around base all day getting officers to salute him.

  • Paul||

    That's funny. A friend of mine who had been in the military said the exact same thing.

  • ||

    William "Wild Bill" Donovan head of the OSS during WWII did that. He won the Medal of Honor in WWI and used to intentionally walk into meetings at the Pentagon wearing his medal of Honor. He would than stand and wait for all the assembled generals to stand, come to attention, and salute him before he would sit down.
    Now that's a bastard with some brass ones.

  • ||

    Oh, what a hero!

  • Paul||

    Yeah, a guy needling the apparatus of the state is certainly no hero.

  • ||

    Does this affect lying to Congress?

  • ||

    You have to stop lying to them the moment they stop lying to you. It's all in the Symmetry Clause.

  • ||

    "subject only to the rubber stamp of 'rational basis review'".

    Okay Alex, why don't you man up like Hugo Black and take the time to trash all of the balancing tests the judiciary employs where a litigant seeks to vindicate a constitutional right?

  • ||

    Does the law allow you to make up bogus medals for bogus military organizations?

    Yeah I got the Presidential Medal of the Purple Cross for my valiant service with the US Power Force.

  • Paul||

    Obama's the only recipient of that.

  • ||

    You appear to be more interested in focusing upon Mr. Alvarez than the state trying to criminalize a boastful fib.

    Friends of liberty are not impressed by baubles, medals, pins and trinkets given by the state to its hilariously haberdashed killers.

  • Paul||

    It's because I really want the CMOH to be changed into the Iron Cross. All real libertarian societies give those out.

  • Rev. Blue Moon ||

    Friends of liberty are also not impressed by More-Libertarian-Than-Thou Chest-Thumping Neoconfederates.

    Sit down and shut up already.

  • Art-P.O.G.||

    US Power Force is an excellent name. If you ever make a SyFy original film, be sure to include that organization.

  • Paul ||

    He is the de facto defender of liberty on these here internets. All others are posers. I mean, liberty is in his fucking handle...

  • Colonel_Angus||

    "white lies, exaggerations and deceptions that are an integral part of human intercourse"

    THAT'S A LIE!!!

  • Dr. House||

    Everybody lies.

  • DJF||

    If federal judges say that it all right to falsely claim to be in the military or MOH winner is it also ok to falsely say that you are a federal judge?

  • ||

  • Eagle Eye||

    Why is a faux former Marine wearing an Army uniform?!

  • Art-P.O.G.||

    Probably the same reason he says he served from 1976 onward but got a Medal of Honor in 1987. The only thing that could be for is Operation Urgent Fury in Grenada. I'm too lazy to go digging, but I really don't think any MOHs were awarded for that conflict. Even if there were, they were posthumous.

  • The Art-P.O.G.||

    Also, yes. Not being able to tell the difference between Marine Corps and Army Class As is a dead giveaway.

  • ||

    I was wondering the same thing myself!

  • Alan Kellogg||

    The law is redundant, since laws on fraud and misrepresentation already cover this sort of thing. Unless lawyers have argued against it.

  • cynical||

    So, what makes this not fraud? No economic angle? Would it be a legitimate crime if you lied about your military record when trying to get a real job instead of a blowjob?

  • Ob||

    Probably if you were trying to get a govt or security sensative position. Most places would do a background check and it would work itself out.

  • ||

    fraud (in the model penal code sense) is lying to obtain some sort of pecuniary benefit.

    it is not merely lying (obviously)

    many jurisdictions make it a crime to solicit money based on false claims you were in the military (think eddie murphy in trading places)

    the stolen valor act doesn't require that the lie be used as part of a scheme to DEFRAUD (iow obtain funds under false pretenses) , but merely that the lie be uttered

    HYOOOOOGE difference.

    if you are at a bar and claim to be a navy seal because you want the smokin' hawt girl next to you to go home with you, that is not illegal.

    lying to get people to sleep with you is as old as the hills and (obviously) not criminal

    similarly, "i swear i'll pull out" when one has no intention thereof, or " i love you, i really do".

    no laws i am aware of (and certainly none i think would pass constitutional muster) would make it illegal to falsely claim to be a medical doctor, or a lawyer, or whatever.

    making such a claim and then acting in such a capacity (iow telling a person you are a doctor so they pay you to treat them) most definitely is a crime - everywhere.

    boasting that you are a lawyer is not illegal, if untrue.

    making that claim and taking payment and not actually being a lawyer would be fraud.

    i had a guy once claim to be an army member who needed gas money to get to fort lewis. i was in plainclothes i n an unmarked. he turned out to be drunk. he solicited the wrong person for money. he ended up getting arrested for DUI (he drove up to me in the lot)

    many cities in my area have laws making it a crime to solicit for money based on false claims - iow "i am homeless" when one is not, and just wants money for booze or whatever.

    presumably, a vague claim like "i really need the money" could not prosecuted as false claims to solicit money because... well "i need the money" is obviously subjective.

    fraud also generally requires an intent

    so, if you take money to do a project (fix somebody's roof ) and fail to follow through - that is a CIVIL MATTER ... unless, it can be proven that when you took the money you never had the intent to do the project in the first place.

    we have made cases like this based on a suspect's engaging in a PATTERN of taking money and never following through since that evidences that they never intended to do so, when they solicit and take money from 20 people and over the course of 3 months never showed up at any location to do the work

  • ||

    if you are at a bar and claim to be a navy seal because you want the smokin' hawt girl next to you to go home with you, that is not illegal.

    I'm not sure about that. You're gaining the pecuniary benefits of not having to buy her any drinks or dinner.

  • ||

    well yes. in the same respect that the girl could be charged for prostitution for paying you back for the dinner and the movie by schtupping you.

    i once heard a quip that guys don't pay prostitutes to fuck them. they pay them , so they leave afterwards :)

  • Coeus||

    if you are at a bar and claim to be a navy seal because you want the smokin' hawt girl next to you to go home with you, that is not illegal.

    For now. There are several groups actively trying to get that included in the definition of rape. A small but real possibility as long as Biden is still White-Knight-in-Chief.

  • Art-P.O.G.||

    I think he just made it as an offhand remark, which should be legal. Obviously, faking a DD 214 or charging speaking fees as an MOH winner then fall into the 'fraud' category. Also, what Ob said.

  • ||

    The guy in the picture didn't make an offhand comment. He spent probably $400 and hours of time procuring a uniform, combat badges, and (way too many) ribbons representing awards and medals.

  • The Art-P.O.G.||

    True. Although I think he's disrespecting everyone who has actually served and condescending to everyone else, I wonder if that constitutes fraud.

  • SFC B||

    I like his seven unit citations.

  • ||

    It would be interesting to make an order-of-precedence study. See if he had even the faintest clue what he was doing.

  • rather||

    First Amendment right to make shit up, at least when his lies do not fall into a traditionally proscribable category such as fraud or defamation (which require additional elements beyond knowing falsity).

    The law has widened in the context of the internet age. Sending or soliciting emails with false accusations is under the radar of Cyber Bullying

    http://en.wikipedia.org/wiki/C.....egislation

  • Pedant||

    If that standard were adopted, it warned, "there would be no constitutional bar to criminalizing lying about one's height, weight, age, or financial status on Match.com or Facebook..."

    Really? How about the Constitutional bar that they're not fucking empowered by the Constitution to pass such laws in the first place?

  • ||

    actually, there already has been a federal law making it a crime to violate a contract on these type of networks such that if one misrepresents one's name, or even political affiliation etc. (think trolling a democratic website), one is committing a federal crime

    this statute, oft ignored (like most obscenely broad federal legislation) was used in the lori drew case.

    orin over at volokh.com worked on a brief to get this law overturned

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