Some laws are hard to kill, even those declared unconstitutional by the Supreme Court. Like a zombie brought back to life, the Stolen Valor Act, which makes it illegal to lie about military records, is getting a second life. But this time, its supporters have taken the steps to ensure its longevity.
Here’s the key difference that allows it to pass constitutional muster: Unlike the overly broad bill that was shot down last year, this iteration says its only illegal to lie about military accolades for material gain.
Which, of course, raises the question, what qualifies as material gain?
“I don’t see somebody being prosecuted because they scored a free drink,” Rep. Joe Heck, R-Nev., who recently reintroduced the bill to the House, tells me. “That’s not the point of the legislation, but it would be up to the court and the prosecuting attorney to decide whether or not it violated the intent of the law.”
If the issue sounds at all familiar, it’s probably because the law was only struck down by the Supreme Court last year (and got extra attention, because the ruling came down the same day as the one on “Obamacare”). The 2005 version of the Stolen Valor law made it illegal to lie about military service, regardless of intent. If you were trying to pick up a girl, or apply for a job, or score a free drink at a bar, it could be a criminal act. The Supreme Court, however, saw this as a violation of the freedom of speech.
“Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition,” Justice Anthony Kennedy wrote [emphasis is mine] at the time.
Heck saw room in the Court’s reading to propose an updated version of the law, one that included a line about “material advantage” so it could pass constitutional muster. While he doesn’t see lying to get a free drink at a bar as a criminal act, clearly most members in the House agree with him on the new law’s language.
Last September, the House passed his version by a vote of 410-3. It never went anywhere in the Senate. But now, a version introduced by Sens. Jon Tester, D-Mont., and Dean Heller, R-Nev is circulating through the Senate.
But why, exactly is this law even necessary? Free-speech advocates, such as the American Civil Liberties Union, have said the law is a waste of legislators' time.
“Now, there’s really no reason to act here at all,” ACLU legislative counsel Gabe Rottman wrote. “Fraud — including fraud respecting the receipt of military decorations — is already illegal under federal and state law, meaning the bill’s unnecessary.”
Rep. Justin Amash, R-Mich., who voted against this bill (he votes “no” on a lot of bills, recently telling reporters that his modus operandi is to start out as a “no” on every vote until convinced otherwise), agreed with the ACLU. He wrote this on his Facebook page after voting “no” last year:
Lying about being awarded military medals is despicable. People who do that should be ridiculed and called out for their false statements. But in this country, we don't criminalize this type of speech. If listeners suffer real injuries due to the false speech, for example, by giving money to the alleged medal winner, the speaker has violated the law — it's called fraud. This bill, like the 2005 law, seeks to criminalize mere speech without the need to show that someone was injured by relying on the speech. That's outside of our prized tradition of free speech, and that's contrary to the First Amendment.
Clearly, not everybody feels this way. And honestly, it’s easy to see why the vast majority of the House voted in favor of the bill (especially taking into account how close the vote was to Election Day). Almost nobody wants to be seen as in favor of allowing people to lie about military service.
It’s a truly smarmy thing to do, lying about military records. Even after the Supreme Court ruled in his favor, Xavier Alvarez of Pomona, California, is no hero in anybody's eyes. His case ended up in the Supreme Court after he lied about receiving the Congressional Medal of Honor during his campaign for a local water board spot (incidentally he also lied about playing hockey for the Detroit Red Wings and being involved in the Iran hostage crisis).
Then, of course, there is Sen. Richard Blumenthal, D-Conn., whose comments during his campaign made it seem like he fought in Vietnam. Heck wouldn’t say whether Blumenthal’s statements would have violated his law, but did say: “That would certainly be considered personal gain and material benefit.”
Heck says he understands that fraud is already a crime, but notes that each state punishes it a different way. Since military awards are federal awards, he believes there needs to be some standards.
“People who earn these awards have taken an oath to put their life on the line,” he said. “And awards often given posthumously, after dying. These types of issues should be held to a higher standard. Evidently, the Supreme Court thinks it’s OK to lie about winning one of these. But if you are going to lie to actually benefit in some material way, I think that needs to be held to a higher standard.”