Julie Hilden

Litigating the Stolen Valor Act: Do False Claims of Heroism in Battle Harm Genuine Heroes?

By JULIE HILDEN
Monday, November 22, 2010

In 2006, during George W. Bush's presidency, the Stolen Valor Act (SVA) became law. Section (b) of the law -- codified here -- criminalizes falsely claiming that one has been awarded any one of a number of U.S. military medals. The false claim at issue can be oral or written -- anything from boasting in a bar, to bragging on the Internet.

For most medals, the sentence is up to six months of jail time. But false claims that one has received a Congressional Medal of Honor, or certain other medals rewarding extraordinary valor, may be penalized with up to a full year of jail time. Fines can also be imposed by the court.

To run afoul of the SVA, it is not necessary to actually wear a forged medal, or to use one's false claim about having been awarded a medal to get some concrete benefit (such as money or a job). Nor is it necessary to have damaged any particular person in any way as a result of one's false claim. Simply making the false claim is itself a crime. Accordingly, some argue that the statute runs afoul of the First Amendment by punishing pure speech.

Notably, if a person does falsely claim to have a medal in order to procure a concrete benefit, then longstanding garden-variety civil and criminal fraud statutes will apply. Such statutes are triggered by knowingly false claims that are material (that is, significant in the given context), as long as the speaker intends that the listener will rely upon the claim to his detriment, and as long as damages ensue.

But the SVA does away with any requirement of reliance, materiality, or damages -- focusing solely on the speech itself.

Two Challenges to the SVA Raise A Real Possibility of Supreme Court Review

The SVA has recently been the subject of two federal court challenges.

On July 16, a Denver-based U.S. District Court judge struck down the SVA as unconstitutional. Federal prosecutors there are appealing to the U.S. Court of Appeals for the Tenth Circuit.

Then, in August, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit voted 2-1 to strike down the Act as unconstitutional. However, the Justice Department has requested rehearing of that decision by an en banc panel of the Circuit.

Particularly if the Tenth and Ninth Circuits end up disagreeing with each other, it is possible that the Supreme Court will take an interest in the case.

Alternatively, the Court might take the case if the government ultimately loses in both Circuits, simply because a federal statute has been struck down. The Court may then opt to give the Solicitor General a chance to defend (and potentially revive) the SVA.

Why The First Amendment Protects False Statements of Fact -- Not Just True Statements of Fact and Statements of Opinion

Readers may reasonably wonder why knowing lies ought to be covered by the First Amendment at all. And indeed, one of the threshold questions that the Ninth Circuit panel confronted was the simple question of whether the First Amendment covers false statements and, if so, why.

In support of the conclusion that the First Amendment does indeed protect falsities in some circumstances, the panel's two-judge majority cited the landmark defamation precedent New York Times Co. v. Sullivan. That case held that, when public figures are involved, even outright falsities can be protected from civil liability, if other elements -- such as proof of the requisite state of mind on the part of the writer --are lacking.

Sullivan thus requires not just falsities, but something we might call "falsities plus," before liability for defamation can be imposed. There, the Court reasoned that since criticism of public figures is an aid to democracy, such criticism should be given some leeway even if it proves in the end to be off-base. (Public figures' ability to access the media to seek to clear their names was also a factor.)

The Ninth Circuit panel majority also endorsed the idea that speakers need some margin for error, if they are to be able to truly speak freely, and without fear of government reprisals. Noting that First Amendment freedoms need some "breathing space" to survive, the Ninth Circuit panel majority saw the issue as primarily concerning not the worthiness of the speech at issue, but the ability of all speakers to be free from government interference or the fear of it.

The specter of the government's defining what is truth and what is falsity in marginal cases -- cases that raise questions that are much difficult and complicated than "Was this person really awarded a medal?" -- is a troubling one. Imagine a similar statute that applied to public school teachers who are deemed to be telling "lies" about American history -- a scenario that, in light of recent efforts by school districts to revise textbooks' accounts, does not seem too far-fetched.

In First Amendment doctrine, the "chilling effect" plays a strong role. The idea is that a speaker might want to say something that is perfectly legal to say, but might silence herself due to a lack of clarity in the law regarding what speech can and cannot be punished. The courts' recognition of the "chilling effect" suggests that ambiguities in laws affecting speech, in particular, are especially troubling. It suggests, as well, that letting some liars prosper might be the cost of ensuring that others can tell truths without fear of government punishment.

Along these lines, the Ninth Circuit panel majority wrote, " [T]he right to speak and write whatever one chooses--including, to some degree, worthless, offensive, and demonstrable untruths--without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment."

The Key Question: Do False Claims Harm Real Heroes?

Since the Ninth Circuit panel majority concluded that the First Amendment was indeed implicated by the SVA, it then moved on to apply the test that the Supreme Court has devised for bona fide First Amendment claims.

That test holds that, in order to justify an infringement of free speech, the government must cite a compelling interest, and must demonstrate that the law at issue is a narrowly-tailored means of serving that interest.

The Ninth Circuit panel majority found that the SVA serves a compelling interest: The interest in preserving the "reputation and meaning" of the medals at issue.

However, it held that the SVA was not a narrowly-tailored means of serving that interest. In so concluding, it reasoned that false claims of having been awarded a medal arguably do no harm to genuine heroes who truly have received medals.

UCLA law professor Eugene Volokh made a similar point in an AP interview, while also suggesting that a compelling interest may be lacking here: " I don't think that anybody's going to stop being a brave soldier, or be a less brave soldier," Volokh said, "or have less respect for a brave soldier, because some number of people lie about it."

Relatedly, both the Ninth Circuit panel majority and the Denver-based U.S. District Judge who struck the SVA down, Robert E. Blackburn, refused to credit any suggestion that servicemembers might be incentivized to commit acts of heroism in battle by the hope of their someday receiving a medal. (Indeed, Blackburn not only rejected such a suggestion, but wrote that he was "offended by" it.)

But there may be another kind of harm to real heroes that is at issue here: Could a brave soldier who had earned a medal by risking her life, or even losing a limb, be reasonably very aggrieved if she learns, when she is back home, that a co-worker who never actually went to war is bragging, with impunity, about the "medal" he was supposedly awarded?

I think so. And I believe that that is a real harm to the soldier, one that may cause significant pain and anger. The only question is whether that harm can be taken into account within the framework of First Amendment law.

Can Private Persons and Online Databases Address the Real Harms of Medal Lies, Without Government Intervention?

Importantly, the Ninth Circuit panel majority suggested that even assuming that medal lies do indeed hurt real heroes, there are better remedies than the criminal law to address these lies-- such as private persons' rooting out the medal lies, and shaming the liars.

So, in the workplace hypothetical above, the real soldier with the genuine medal might ask the faker to show her his medal, or she might cross-examine him about where he served and what it was like -- thus shaming him into an admission, or at least showing their co-workers that he is probably lying.

A consolidated, searchable online government database of the names and ages of all true U.S. medal recipients would certainly aid such private efforts at establishing the truth. Until the government creates such a database (and, after a number of searches, I can't locate one online that covers all medals and all recipients), it is hard to credit its claim that it needs to invoke the criminal law to punish medal liars. The government should have started with the easy online-database solution, and then asked for the SVA solution only if it proved truly necessary.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.