Fifth in a series of articles addressing “Stolen Valor”

​By Barry J. Bernstein*

           Prior articles in this series addressed the issue of “stolen valor.”  They also reviewed the first Congressional Act, which was struck down by the US Supreme Court and the replacement Act that probably resolved the Court’s issues.  This article addresses South Carolina’s version of stolen valor protections.

            The 2013 federal Act is narrowly defined and corrected the issues that the US Supreme Court relied upon to strike down the prior Act.  The South Carolina version passed in 2014 is much more expansive and subject to Court scrutiny.  The South Carolina version is known as the “South Carolina Military Service Integrity and Preservation Act.” S.C. Code Ann. 16-17-760 (2014).  Part of the state Act mirrors the protections of federal law, but now makes it a state crime as well.  That portion of the SC version is probably safe in Court review.

             However, the state Act differs significantly in two ways from the federal Act  Both distinctions may find problems in the Courts.  The first significant difference is that instead of only protecting combat awards, it protects ALL federal military service.  Even lying about serving at all or earning the most trivial decoration would be a violation if accompanied by a benefit of the lie.  The second significant distinction from federal law is that where federal law simply states “tangible benefit” for the fraud, the SC statute includes specific examples that may be scrutinized by the Court.

               Like the federal counterpart, the state Act requires a lie about service accompanied by a tangible benefit to for a fraud.  These two parts to form the fraud have different issues:

                         THE LIE.  The federal Act is limited to only the “top 3” medals, the Purple Heart, and combat service awards.  The SC version is tied to any federal military service.  The court may have issues with such a broad incursion into 1st Amendment protected speech.
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                             TANGIBLE BENFIT.  Both federal and state acts identify money, property, or a “tangible benefit” for the lie to form a fraud.  The SC version notes tangible benefits to include employment issues, any action that can effect the outcome of a court case, and seeking elective office as a tangible benefits.  Each of these have different issues for Court scrutiny.

            Clearly, South Carolina has upped the ante on Stolen Valor as a crime.  It still must face Court scrutiny as to 1st Amendment free speech issues.  It will be interesting to see how well the South Carolina Military Service Integrity and Preservation Act hold up in the future.

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.

Fourth in a series of articles addressing “Stolen Valor”

By Barry J. Bernstein*

            Frustrations with military imposters led to Congressional action.  The Stolen Valor Act of 2005 was struck down by the US Supreme Court as trying to create a new crime against free speech for lying.  Fortunately, two swing votes in the Court’s opinion established a means where the Act could be revised in a manner to survive 1st Amendment challenges. 
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            Upon the 2005 Act being overturned, Congress almost immediately passed the Stolen Valor Act of 2013. The new Act went from a newly introduced bill to presidential signature in less than five months.  It specifically addressed the concerns of the swing vote and tied lying about entitlement to the protected decorations to gaining a financial benefit.  In doing so, it made the crime about fraud.  Fraud is an existing exemption to 1st Amendment protected speech and is firmly established in law.  With the new language of the Act creating a crime for fraud, the new Act has a great chance of surviving court scrutiny.
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So what does the new Act protect?
A. The “High 3” medals
      1. The Medal of Honor
      2. Service crosses (Distinguished Service Cross, Navy Cross & Air Force Cross)
      3. The Silver Star

B. The Purple Heart
C. Combat service awards:
     1. Navy & Marine: The Combat Action Ribbon
     2. Army: Combat Infantryman Badge, Combat Action Badge, Combat Medical Badge
     3. Air Force: Combat Action Medal

         Keep in mind, even if someone falsely represents to have entitlement to one of these decorations, they also must receive some “tangible benefit” for it to be a federal crime under the Act.

        The Stolen Valor Act of 2013 is still to be tested in the Courts.  The new Act is more than likely to survive the prior 1st Amendment attacks that invalidated the 2005 Act.  Because the 2013 Act specifically is founded in the concept of fraud it is already outside the protection of the 1st Amendment.  Also, the Court has become more conservative in composition and most of the newer justices are likely to side with the minority in the Alvarez case.  The battleground in any appeal of a conviction under the Act is likely to be found in the issue of what constitutes a “tangible benefit.”   

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.