Third in a series of articles addressing “Stolen Valor”

            In prior posts I noted the rising tide of concern for military imposters and a book called Stolen Valor.  The book’s name became synonymous with the issue and “stolen valor” took a life of its own as an issue.  Following a number of high-profile cases, Congress was ready to act. 

          Congress overwhelmingly passed the Stolen Valor Act of 2005.  The Senate was unanimous in passing it, and the House simply used a voice vote to approve it.  The Act specifically had an intent to “to protect the reputation and meaning of military decorations and medals.”  Interestingly the Act only protected a handful of combat awards, not all military service.    

             In 2007, Xavier Alvarez introduced himself as a newly elected water district member at a formal meeting saying “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.”  The Medal of honor was one of the protected decorations in the Act.  None of the statement was true. Alvarez was subsequently indicted for violating the Act and the trial court rejected his claim that the Act violated his free speech rights.  On appeal, the 9th Circuit reversed the trial court in agreeing with Alvarez that the Act violated free speech. United States v. Alvarez, 617 F. 3d 1218 (2010).  On appeal to the US Supreme Court, the 1st Amendment issue was going to be clarified.

         In 2012 the Supreme Court ruled in Alvarez’s favor, basically saying lying was protected free speech.  The Court struck down the 2005 Act in a 6-3 plurality as being a legislative attempt to increase the limited exceptions to free speech.  United States v. Alvarez, 567 U.S. 709 (2012). A plurality means that not enough were in his favor for a clear majority.  Two justices made up the “swing” vote to concur with the outcome, but not the reasoning.  The swing vote is important because with some revision, they could swing to the minority form a new majority to sustain a future challenge.  The swing vote found that if the stolen valor lie was associated with fraud, then it would fit within an existing limit on free speech.  They even suggested if the government thought it was an important issue that a public database should be available to expose imposters.

            Almost immediately after The Stolen Valor Act of 2005 was invalidated, the DoD established a website with the names of recipients of the Medal of Honor, the different service crosses and the Silver Star.  This was just as the swing vote had suggested in its opinion, so today the “High 3” medals recipients can be easily confirmed or exposed.  Congress also listened to the swing vote, and quickly passed the Stolen Valor Act of 2013.  It specifically addressed the concerns of the swing vote and again overwhelmingly passed both houses of Congress. My next article addresses the new Act and where it stands today.

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    * The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.

Second in a series of articles addressing “Stolen Valor”

By Barry J. Bernstein*

            Since the Supreme Court loosened restrictions on misappropriations on military uniforms, the issue seemed to fade.  However, while the wear of the uniform faded as an issue, the post-Vietnam era brought a new issue of people claiming military service or awards falsely.  This created a new legal battle about military imposters and 1st Amendment free speech which brought a new term “Stolen Valor.”

           High-profile stories of false claims of military service in the 1990’s raised this issue.  Senator Tom Harkin falsely claimed to have flown combat missions in Vietnam.  Congressman Wes Cooley lied about serving in the Special Forces in Korea.  Ambassador Larry Lawrence was disinterred from Arlington Cemetery when revelations of his lying about military service arose.  Actor Brian Dennehy (the sheriff in the first Rambo movie) said he was wounded in Vietnam, but publicly admitted it was a lie. 

             Stolen Valor: How the Vietnam Generation Was Robbed of its Heroes and its History was written and self-published by B.G. Burkett in 1998.  Its timing was after so many high-profile lies of military service.  It addressed general misperceptions of the war, but one of its parts struck a nerve.  The third part of the book addressed military imposters and the ineptitude of anyone to expose them.   

          By example, Burkette exposed Frank Dux.  Dux was a well-publicized martial arts guru who was portrayed by Jean Claude Van Damme in 1988’s “Bloodsport.” Dux claimed to have been awarded the Medal of Honor and even wrote a phony memoir of being an “American Warrior.”  Dux’s “memoir” was published by a major publisher just before Stolen Valor.  The book proved Dux served as a reservist, after the Vietnam War, and with no overseas duty. Dux quickly faded away from celebrity status.

         Stolen Valor also hammered the media’s gullibility to present stories without first substantiating the alleged military service.  Burkette’s example would be humorous if not pathetic.  In 1994 CBS’ 60 Minutes featured a Vietnam Marine with a Bronze Star, 2 Purple Hearts and being a Khe Sanh veteran that turned to heroine and murder as a result of his combat experience. As a result of the public response, the Massachusetts Governor commuted his sentence to parole.  Following exposure of the lie in Stolen Valor, the man admitted on rival ABC’s 20/20 that he never saw Vietnam. 

            After the book, others have taken to exposing military imposters.  Joseph Cafasso was a Fox News “expert” as a retired Special Forces lieutenant colonel, and Silver Star recipient.  He was fired in 2002 when Cafasso was exposed as being discharged from basic training with 44 total days of service.   

          The issue of military imposters, misappropriating service, or “stolen valor” had reached its peak.  Congress was ready to act.  The issue became so hot that allegations (later proven false) that each party’s presidential candidate had fabricated tales of his service.  By 2005 stolen valor more than a political issue and was becoming a legal issue. 
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While these articles are intended to inform you of unique issues of the military and veterans,  it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    * The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.

First in a series of articles addressing “Stolen Valor”
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By Barry J. Bernstein*

              For many years there has been federal law limiting the wear the military uniform and decorations.  This went unchallenged for many years as the reality of having a military in a free society.  This began to change in the 1960’s and 1970’s.
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        The unrest of Vietnam brought in an era of change and anti-war demonstrations brought 1st Amendment challenges to limitations on military needs.  The first real challenge was United States v. O’Brien, 391 U.S. 367 (1968).  O’Brien was a war protestor that burned his draft card in defiance of a provision of a law similar to the uniform prohibition.  He was charged with a federal crime and convicted.  On appeal to the Supreme Court his conviction was upheld, saying they would uphold statutes where they advanced a legitimate government interest and the law was not intended to inhibit free expression.  However, the Court began modifying its foundations as the Vietnam era of protest transformed American society.
           Though there were limits on the use of the uniform, an exception existed for the wear of the uniform for actors in a performance.  The exception went so far as to say that it could only be for performances that reflected positive images of the uniform (if you think of war movies before the 1970’s, they were never negative).  As part of an anti-war skit in front of an induction center, Daniel Schacht wore parts of a military uniform.  He was convicted for wearing the uniform.  

         The Supreme Court focused only on the limit of positive portrayals in a positive light as a 1st Amendment violation of free expression.  Basically, the Court found the government was limiting expression to only supportive portrayals and was intentionally limiting free expression against the government.  The Court sidestepped issues of Schacht only fragments of a uniform, ignored whether that he was not a typical “actor,” and even avoided determining whether the demonstration was an actual “performance.”  Instead, the Court focused on the exception’s limited use only “if the portrayal does not tend to discredit that armed force.” 10 U.S.C. § 772(f) (1956).  The free speech argument zeroed in on the government controlling free expression to only positive portrayals.  The Court noted that even where the “performances were crude and amateurish and perhaps unappealing” it was protected free-speech.  Schacht’s conviction was reversed. Schacht v. United States, 398 U.S. 58 (1970).  The 1st Amendment issue seemed settled, and the ruling spawned a new generation of war movies and military comedies in less than patriotic themes.

            The law is still on the books as previously written, where only positive portrayals are allowed.  However, with the Schacht ruling it is unenforceable.  It was also a significant change in the law as far as the 1st Amendment.  With the end of the Vietnam protests, so seemed the issue for a generation.  However, things stirred up in the 1990’s and the issue of protecting the uniform changed to a broader issue of “stolen valor.”  Future articles in this series will address these 21st century issues.

While these articles are intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
    *The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, South Carolina, advising clients and attorneys on military issues.