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Can Congress Criminalize Trading on Stolen Valor?

By Robyn Hagan Cain on July 12, 2012 | Last updated on March 21, 2019

If Congress ends up in another Stolen Valor battle, you can blame Justice Stephen Breyer.

"Wait," you say. "Didn't the Supreme Court just strike down the Stolen Valor Act?"

Why, yes. That did happen. Now we've moved on to new incarnations of the law.

Congress adopted the Stolen Valor Act in 2005, making it a crime to falsely claim receipt of military decorations or medals, and providing an enhanced penalty for false claims involving the Congressional Medal of Honor.

In June, Justice Anthony Kennedy announced that the Act was an unconstitutional limit on free speech. Justice Kennedy suggested, "The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth."

Justice Breyer, in a concurring opinion, noted that a more narrowly-tailored version of the Act might be able to withstand scrutiny. That brings us to talk of three new Stolen Valor-esque initiatives, according to The Hill.

First up, the Brown-Heck Act. Sen. Scott Brown and Rep. Joe Heck, both Republicans, are pushing legislation that would make it a federal misdemeanor for individuals to benefit from lying about military honors. They claim the distinction will satisfy the high court's First Amendment concerns.

Second, there's Stolen Valor 2.0, courtesy of the original Stolen Valor Act author, Sen. Kent Conrad. Conrad, a North Dakota Democrat, told The Hill he is also looking to tweak the legislation. He could sign on to Brown-Heck, but he could also introduce his own bill. (A new Conrad law is actually unlikely, since it's an election year, and Sen. Conrad is not seeking re-election.)

Finally, we have Virginia Senator Jim Webb's proposal, the Military Service Integrity Act. Sen. Webb's legislation would make lies about military honors for personal gain punishable by a fine or imprisonment for not more than six months, or both. It would also reinstate measures to make it illegal to manufacture, sell, attempt to sell, import, or export U.S. military decorations or medals authorized by Congress for the armed forces, except as authorized by law.

(Where some people fight lies with truth, others fight lies with more legislation.)

Both bills employ vague standards to determine criminal conduct. Brown-Heck penalizes a person who lies about military service with "intent to obtain anything of value," while the Military Service Integrity Act looks to whether or not lies were told for "personal gain."

So what qualifies as value or personal gain? Would elected office count? What about a kiss from a crush? Or, what about $10, is that gain, or does it have to be $10,000?

No one actually respects a person who lies about military service, but is Stolen Valor redux is a good idea? Would these bills survive Supreme Court review?

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