Rewrite may save Stolen Valor Act

Friday, May 13, 2011

The Stolen Valor Act is back before a federal appellate court, but its real future may lie with Congress.

The 2006 federal law makes it a crime to claim falsely to have been awarded military medals. It faced its first test last year when the 9th U.S. Circuit Court of Appeals threw out a case against Xavier Alvarez, who lied about being an ex-Marine who had received the Congressional Medal of Honor.

“The general freedom from government interference with speech … without the government injecting itself into the discussion as the arbiter of truth, contribute(s) to the ‘breathing space’ the First Amendment needs to survive,’ Judge Milan Smith Jr. wrote in the court’s decision striking down the Stolen Valor Act.

In other words, free-speech protections would be undercut if we give government the right to assess and divine the truth.

Now the 10th U.S. Circuit Court of Appeals is reviewing a similar case involving Rick Strandlof, a California man who falsely claimed to be an Iraq war veteran who had been awarded a Silver Star and Purple Heart. The Denver Post reported that the judges seemed skeptical of the government’s right to regulate lies.

“That’s a pretty broad category you’re proposing, false statements of fact,” Judge Timothy Tymkovich said, according to the Post.

The challenge for those who want to punish military-related lies is that the First Amendment provides extraordinary protection for freedom of speech in America and judges are going to be reluctant to carve out an exception when the only crime is loose talk and bravado.

That’s where Rep. Joe Heckman, R-Nevada, comes in. Heckman has introduced a bill that would revamp the Stolen Valor law by including a requirement that the false statements be made for personal gain.

That may be enough to have the Stolen Valor act upheld. In theory, at least, the law would be punishing the criminal act of defrauding, and not the speech itself.

That means con artists could be charged and the First Amendment would remain intact.