False Valor: Amending the Stolen Valor Act to Conform With the First Amendment's Fraudulent Speech Exception

• Publication year: 2021

FALSE VALOR: AMENDING THE STOLEN VALOR ACT TO CONFORM WITH THE FIRST AMENDMENT'S FRAUDULENT SPEECH EXCEPTION

Jeffery C. Bamum(fn*)

Abstract: The Stolen Valor Act (SVA or "the Act") was enacted to protect against "fraudulent claims" of receipt of military honors or decorations. It does so by criminalizing false verbal or written claims regarding such awards. However, the Act failed to include all of the elements of an anti-fraud measure required by the First Amendment. Most critically, the SVA fails to require actual reliance on the part of the defrauded. Although fraud is generally not protected by the First Amendment, courts cannot construe the SVA as an anti-fraud measure if the statute does not require actual reliance. Therefore, the SVA as written has been subject to the higher strict scrutiny standard when challenged on First Amendment grounds. However, this oversight is easily remedied. Congress should amend the SVA to require that targets of the fraudulent claim alter their behavior based upon the false representation of military honors without necessarily suffering an economic injury. By modifying the SVA in this limited fashion, Congress will enable courts to construe the SVA as an anti-fraud measure while protecting against harm caused by false claims of military honors.

INTRODUCTION

Presenting the first military award for the Continental Army, General George Washington recognized those who had served with "bravery, fidelity and good conduct. "(fn1) General Washington expected "those gallant men" awarded this badge of recognition(fn2) would "on all occasions be treated with particular confidence and consideration."(fn3) General Washington also warned that "should any who are not entitled to these honors have the insolence to assume the badges of them they shall be severely punished."(fn4) Today, Americans generally show deference and respect to decorated military veterans.(fn5)

Shortly after General Washington made his pronouncement, the First Amendment was proposed and ratified. (fn6) The First Amendment prohibits Congress from making any law "abridging the freedom of speech."(fn7) Because the guarantee of freedom of speech is so "intimate to liberty,"(fn8) the First Amendment has profoundly impacted the functioning of American society.(fn9) Although the First Amendment does not prohibit all government restrictions on speech,(fn10) it allows such regulation only in certain limited circumstances.(fn11)

These two values-respect for military valor and freedom of speech-collided when Congress enacted the Stolen Valor Act (SVA or "the Act") in 2006. Although the wearing of unearned military decorations has been unlawful for many years,(fn12) Congress found the proscription on wearing unearned decorations insufficient to protect against "fraudulent claims" of unearned honors.(fn13) Congress thus enacted the SVA, which prohibits any false verbal or written claims regarding receipt of military awards.(fn14) For example, if an individual made a false claim to colleagues about receiving the Purple Heart, the federal government could prosecute under the SVA.(fn15) In passing the SVA, Congress not only sought to protect the meaning of military awards themselves(fn16) but also the public who relies upon the awards' symbolic meaning.(fn17)

In 2010, the Ninth Circuit heard the first free speech challenge to the SVA and declared it facially unconstitutional as an impermissible restriction on free speech. (fn18) The government defended the SVA on the grounds that the Act proscribes only knowingly false speech,(fn19) which the Supreme Court has held lacks any constitutional value or protection.(fn20) The Ninth Circuit rejected this argument on the grounds that a recent Supreme Court decision, United States v. Stevens,(fn21) did not list false speech as an unprotected category.(fn22) The Ninth Circuit then examined each of the Stevens categories of unprotected speech and concluded that the speech prohibited by the SVA does not fit in any of the established exceptions to the First Amendment.(fn23)

While fraud is one of the categories of unprotected speech identified in Stevens,(fn24) the Ninth Circuit rejected construing the SVA as proscribing fraudulent speech. (fn25) Fraudulent speech requires actual reliance by the listener,(fn26) whereas the SVA does not require anything more than a false representation by the speaker to impose liability.(fn27) Additionally, the Ninth Circuit held that an anti-fraud statute must protect against an economic injury.(fn28)

This Comment argues that while the Ninth Circuit was correct in requiring actual reliance as a prerequisite to construing the SVA as an anti-fraud statute, it erred by requiring an element of pecuniary injury. To remedy the statutory defect identified by the Ninth Circuit, this Comment suggests an amendment to the SVA that will address its constitutional infirmities while continuing to protect the public against false claims of military honors. Part I considers the symbolic nature of military decorations, the public's reliance on these decorations, and the government's actions to protect the integrity of its symbols. Part II explores the SVA's history and purpose in addition to relevant First Amendment jurisprudence and its application to the SVA. Part III examines false personation, a subset of fraud that is similar to the conduct proscribed by the SVA. Part IV advocates for a narrow amendment to the SVA that only requires a victim's reliance as a precondition for liability but not a concurrent economic injury. Part IV also argues that a narrow amendment is possible because the SVA (as written or amended) conforms to other First Amendment mandates.

I. MILITARY HONORS REPRESENT AN INDIVIDUAL'S HISTORY AND CHARACTER THAT INFLUENCES OTHERS' BEHAVIOR

The Stolen Valor Act prohibits false claims of military honors, principally because "fraudulent claims" of military decorations diminish the symbolic power of those awards. (fn29) Military decorations imply certain personal or biographical details about the wearer that are relied upon by members of the public.(fn30) And the federal government has taken steps to prevent misappropriation of government symbols-including military decorations.(fn31)

A. Military Decorations Express the Experience and Character of the Wearer

Military decorations convey both historical and personal details about the wearer. The public reasonably assumes that an individual claiming a military decoration served in the armed forces.(fn32) Military decorations may also indicate whether the claimant has served in specific situations. For example, an individual may display medals signifying service in Vietnam,(fn33) Afghanistan,(fn34) Iraq,(fn35) or Korea.(fn36) Armed forces members may receive medals for non-combat duty, such as service in Antarctica(fn37) or outstanding volunteerism. (fn38) Other awards signify participation in combat.(fn39) The Purple Heart, for example, is awarded to individuals who receive wounds from hostile enemy action that require medical treatment.(fn40) Although the Purple Heart might denote participation in combat, it does not characterize the wearer's performance in combat.(fn41)

In addition to biographical details, an award may signify exemplary service and thus reflect upon the wearer's character. For example, armed services members receive the Distinguished Service Medal for "exceptionally meritorious service to the United States in a duty of great responsibility."(fn42) Of course, not all individuals have the opportunity to serve in positions of "great responsibility."(fn43) However, they may still earn awards such as the Legion of Merit,(fn44) Meritorious Service Medal,(fn45) or a particular service achievement medal.(fn46)

Such awards have a powerful effect on public perception, reflected by the intense campaign waged by the Swift Boat Veterans for Truth during the 2004 presidential campaign. (fn47) The Swift Boat Veterans for Truth spent twenty-four million dollars(fn48) alleging that Democratic Presidential Candidate John Kerry had not earned his military awards.(fn49) The Swift Boat advertisements forced Kerry to defend the legitimacy of his military awards instead of simply letting him claim the symbolic power of his wartime decorations, which spoke to his performance in combat.(fn50) The symbolic power of military awards is not limited to presidential candidates. There are approximately twenty-two million veterans living in the United States,(fn51) many of whom have earned various decorations throughout their service. Each veteran's decoration symbolizes a part of his or her character and history.

B. Individuals Rely upon Claims of Decorated Military Service

Military decorations are powerful symbols because individuals respond favorably to the symbol itself and frequently accord its claimant deference or respect. For example, wearing a military symbol such as the Purple Heart may enhance the credibility of a witness in a civil or criminal trial. In United States v. Hinkson,(fn52) the government's case rested solely on the testimony of Elven Swisher, who claimed Hinkson solicited the murder of three federal officials.(fn53) While testifying, Swisher wore a Purple Heart medal on his lapel, an honor he claimed to have earned serving in the Korean War.(fn54) Hinkson's attorney noted that, given Swisher's 1937 birthdate, he...