Stolen Valor Part 3: STOLEN VALOR AND THE 1st AMENDMENT

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.