Washington Markup

Constitution Doesn’t Need Purple Heart After Narrower Stolen Valor Bill Approved

By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office at 6:46pm

A couple weeks ago, I wrote about a revamped version of the so-called Stolen Valor Act. The revamp responded to a Supreme Court decision that declared an earlier version of the legislation—which made it a crime to falsely claim to have a military medal—unconstitutional. Sponsors of that bill failed to learn the lesson of that decision (which was written, not incidentally, by the radical leftist Justice Anthony Kennedy, and joined by card-carrying ACLU member, Chief Justice Roberts). If the original Stolen Valor Act were a seven on the scale of unconstitutionality, the revamped version in the House went to 11. Fortunately, cooler heads prevailed and the initial H.R. 1775 was replaced by a far preferable version introduced by Rep. Tim Griffin (R-AR).

The original Stolen Valor Act was limited to false statements about military decorations. The bill that was marked up today (and discarded in favor of the Griffin Amendment) was sponsored by Rep. Joe Heck (R-NV) and Sen. Scott Brown (R-MA) and went all out. It would have expanded the crime to cover any “misrepresentation regarding . . . military service.” Under Heck-Brown, if you lie about serving in combat or in the special forces, or claim to have won the Medal of Honor, you would be looking at a year in jail and a fine. Any other misrepresentationwould get you six months and, again, a hefty fine.

The Griffin Amendment is much narrower, and those who worked on it deserve applause. It would only apply to “fraudulent” representations about military decorations. Now, while this still poses First Amendment concerns (it would require the courts to determine what constitutes fraud, which is a complicated question and prosecutions under this statute could still sweep in protected speech), it’s a huge step forward. Most notably, by requiring that the speech be fraudulent, it also requires that the prosecution prove fraud, meaning that it’s not enough to lie about the medal—there has to be fraudulent intent and harm too.

From what I understand, there is still a competing bill in the Senate, introduced by Sens. Jim Webb (D-VA) and Kent Conrad (D-ND). It’s broader than the Griffin amendment in the House (as it applies to lies about having served in the military), but it’s also thankfully narrowed from Heck-Brown. Webb-Conrad at least requires the lie to be a “whopper” before the feds get involved, and it’s limited to a narrow set of circumstances (like lying to get a job). If the Senate is going to insist on getting Stolen Valor done before the election, it should slightly narrow the bill to reflect the Griffin approach. 

Now, I would humbly submit that Congress need not do anything. Lies about military decorations are odious, no question. But not everything that makes us hold our nose should rise to the level of a federal crime. This is especially true where—as here—providing more information would eliminate any possible harm from these falsehoods. A government database (or even something like a hotline) with a comprehensive list of who has received a decoration would serve that purpose well (and if decorations are that important, and they are, such a database should both be feasible and a priority).

In large part, the Constitution (and especially the First Amendment) is about limiting the power of our elected representatives to make laws criminalizing unpleasant but merely offensive activity. With respect to those who have served and to those who do serve (and I mean that), this is one of those areas where limits are important, though efforts to narrow the legislation deserve appreciation.

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