“Lying was his habit.”
That’s the first line from Justice Kennedy’s plurality opinion in United States v. Alvarez, last month’s Supreme Court decision striking down the “Stolen Valor Act,” which made it a federal crime to lie about having been awarded a military decoration.
Justice Kennedy’s point was that the defendant—who, in addition to lying about receiving the Congressional Medal of Honor, also lied about playing professional hockey and marrying a Mexican soap star (sounds like when this guy drinks beer, he prefers Dos Equis)—is pretty sleazy. Sure he is. But, as Justice Kennedy also noted, we should all take a breath before we throw him in the clink: “[f]undamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.” Hear, hear.
Unfortunately, certain members of Congress are doubling down on “Stolen Valor.” Senator Scott Brown (R-Mass.) and Representative Joe Heck (R-Nev.) are sponsoring a new version of the bill. Despite claims to the contrary from the sponsors, it’s much broader, and, in fact, poses an even greater threat to basic free speech rights than its now-invalidated predecessor.
The original Stolen Valor Act was limited to lies about medals (and upped the punishment for false claims involving the Medal of Honor). Brown-Heck goes for broke. It says:
(a) Offense- Whoever, with intent to obtain anything of value, knowingly makes a misrepresentation regarding his or her military service, shall--
And then it proceeds to explain that lies about serving in a combat zone, in a special operations force or about receiving the Medal of Honor are punishable by a year in prison and a fine, and any other lie about your military service is punishable by six months imprisonment and a fine.
The sponsors suggest that the revamped law looks a lot like a fraud statute, in that it punishes the material gain from the false statement. Wrong. Fraud requires that the speech in question actually cause real harm (or at least be extremely likely to cause harm). In order to be charged with fraud, one has to act with the specific intent to defraud, and through statements that one knows to be materially false. Further, the target needs to reasonably rely on the fraud, and there must be damages. Most jurisdictions actually make it more difficult to prove a fraud case than other crimes, precisely in order to protect people from being punished for garden-variety lies.
By contrast, this bill would make it a crime to lie about anything related to your military service, so long as you’re acting with the “intent to obtain anything of value.” Try and impress a girl by claiming infantry service when you were in a supply unit? Jail. Run for office and embellish your military service? Jail. Imply you served in a particular campaign to get a job? Jail. Swift Boat Veterans for “Truth”? Jail.
The only requirement is that you intend the lie to secure something “of value,” which is undefined and totally open-ended. Proponents of the bill claim that an exception for things of “de minimis” value would protect you from prosecution if you lied to get a beer in a bar. But that’s totally up to the prosecutor. “De minimis” is lawyer-speak for “not a big deal,” and doesn’t really mean anything hard and fast in practice. An ornery prosecutor who is particularly ticked off at the town drunk could certainly use this statute to teach him a lesson if he lies at a bar about military service to get a drink.
Senator Brown said at a press conference yesterday that “[t]his is not a controversial matter.” Sure, protecting the integrity of the military decorations system isn’t controversial. But, making normal lies crimes, even when they are intended to secure for the liar something of value, is. We exempt certain types of falsehoods from constitutional protection because significant harm, either to individual victims or to government processes, is all but guaranteed by the nature of the conduct (think perjury, fraud, defamation, false statements during an investigation, etc.).
But, that kind of harm is not present here. Yes, lies about military service offend. Yes, individuals should not be able to secure material gain from lies about military service. In those cases, however, where true harm could occur (misstating your qualifications for employment, for instance), the conduct will already be subject to punishment under existing law. Further, for other cases (especially in the Medal of Honor context), public government databases are a better solution than the long arm of the criminal law.
Protecting and preserving the honor of those who served with distinction is crucial, but there is nothing valorous about the new Stolen Valor Act. It’s a terrible idea.