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Stolen Valor Act Under Consideration by Courts

By Tanya Roth, Esq. on October 11, 2010 | Last updated on March 21, 2019

The Stolen Valor Act may be heading for reconsideration in the 9th Circuit Court of Appeals in California and to the 10th Circuit Court of Appeals in Colorado. Then, experts say the law may go next to the Supreme Court.

The Stolen Valor Act, passed by Congress in 2006, makes it a crime to falsely claim to have won a military medal. The crime is punishable by up to one year in prison, reports the Associated Press. The aim of the law is to protect those who rightfully have won medals of honor in combat from having their accomplishments lessened by those who would lie about it. However, two federal courts have already said the law violates the free speech clause of the First Amendment.

The California case began in 2007 when a Pomona, Caifornia, water board official named Xavier Alvarez was charged for claiming in a public forum that he was a retired Marine who received the Medal of Honor. Alvarez apparently never served in the military. He pleaded guilty to the charge on the condition that he be allowed to appeal on First Amendment grounds. In August, the 9th Circuit ruled the law was unconstitutional.

However, even though the three-judge panel of the 9th Circuit found the law was unconstitutional, the vote was divided on that decision, 2-1. The AP writes that due to close vote, the Justice Department has asked the entire court to re-hear the case.

As the AP reports, should the case go up to the Supreme Court, this Court is one that has come down firmly on the side of the First Amendment, even when there are strong arguments on the other side of the question. Two examples of this are the Citizen's United campaign finance case and the crush videos case, where the Court struck down laws both cases that they said unconstitutionally limited free speech. One other free speech case currently before the Supreme Court is that of the church protesters at military funerals.

Some legal experts say there is no need for such a law, those who lie about their military record for any kind of monetary gain are already covered by the laws against fraud. Eugene Volokh, a UCLA law professor, told the AP the Court requires the government to prove it has a compelling interest to restrict free speech, which could be difficult to prove in this case. "I don't think that anybody's going to stop being a brave soldier, or be a less brave soldier, or have less respect for a brave soldier, because some number of people lie about it," he said.

The bill's author, Colorado Democratic Rep. John Salazar, defended the law. "You go out and you sacrifice and you earn these awards because of heroism. If somebody comes and tries to act like a hero, it kind of degrades what they did," he said. "It's defending their honor, as I see it."

Salazar's statement almost sounds as if those in the armed forces may have heroism as a goal or a motivation for serving their country. Maybe those who have earned medals would be the first to say that becoming a hero was not the reason they did what they did.

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