Stolen Valor Act: UNCONSTITUTIONAL
By a plurality the court ruled the Stolen UNCONSTITUTIONAL.
I am currently going through the decision and the dissent(s) and will post relevant portions from them as the day progresses.
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The Stolen Valor Act was ruled unconstitutional by a plurality decision of the Supreme Court today. As I go through the ruling I will have more information that I will post here.
OK, so the way it broke down I felt was somewhat surprising. Thomas, Scalia and Alito were with us, as expected. But Roberts shifted over, which I had not expected. And so, our hope of a 5-4 win turned into a 6-3 loss when Kennedy joined Roberts on the other side as well. But, all is not lost, there is significant hope to be found even within a ruling that went against us.
Before I leap into parts of it, I wanted to show you what the Scotusblog had to say about the case. ScotusBlog is written by lawyers and constitutional scholars, and lays it out better than I can:
Justice Kennedy announced a plurality opinion – joined by the Chief Justice, Justice Ginsburg, and Justice Sotomayor – and concluding that the Stolen Valor Act infringes on protected speech. The plurality reasoned that, with only narrow exceptions, content-based restrictions on speech face strict scrutiny, and are therefore almost always unconstitutional. False statements of fact do not fall within one of these exceptions, and so the Stolen Valor Act can survive strict scrutiny only if it is narrowly tailored to a compelling government interest. The Court concluded that the Stolen Valor Act is unconstitutional because the Government had not shown that the statute is necessary to protect the integrity of the system of military honors – the interest the Government had identified in support of the Act.
Justice Breyer, joined by Justice Kagan, concurred separately, concluding that the Stolen Valor Act, as drafted, violates intermediate scrutiny. These Justices argued that intermediate scrutiny is the appropriate standard because the Government should have some ability to regulate false statements of fact. However, because the statute, as drafted, applies even in family, social, or other private contexts where lies will often cause little harm; it includes few other limits on its scope, and it creates too significant a burden on protected speech. The concurring Justices believe that the Government could achieve its goals in a less burdensome way, and so they too held the Stolen Valor Act unconstitutional. This opinion leaves open the possibility that Congress will re-write the law more narrowly. Three Justices, led by Justice Alito, dissented.
The main thing to take away from the Alvarez case is that the Supreme Court felt that the bill wasn’t sufficiently “narrowly tailored.” When dealing with anything that touches on a Constitutional Right, it has to be written as small in scope as possible, so that it avoids “chilling” speech which is protected. The Court felt that this statute was too broadly defined. But, it did hold out that other measures are available. I hate to start with a dissent, but Justice Alito ties together the opinion itself (Kennedy writing for the Chief Justice, Ginsburg and Sotomayor) with the concurring opinion of Justice Breyer (and Kagen):
The plurality and the concurrence also suggest that Congress could protect the system of military honors by enacting a narrower statute. The plurality recommends a law that would apply only to lies that are intended to “secure moneys or other valuable considerations.” Ante, at 11. In a similar vein, the concurrence comments that “a more finely tailored statute might . . . insist upon a showing that the false statement caused specific harm.” Ante,at 9 (opinion of BREYER, J.). But much damage is caused, both to real award recipients and to the system of military honors, by false statements that are not linked to any financial or other tangible reward. Unless even a small financial loss—say, a dollar given to a homeless man falsely claiming to be a decorated veteran—is more important in the eyes of the First Amendment than the damage caused to the very integrity of the military awards system, there is no basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality and concurrence appear willing to sustain.
So, essentially what they are saying is that the bill needs to be written much like Fraud Statutes. This is already happening in part, as Congresman Joe Heck of Nevada has already authored one in HR 1775:
Heck offered a tacit endorsement of that ruling a few months later when he offered a new Stolen Valor Act that achieves almost the same ends as the one being challenged at the Supreme Court, while steering fully clear of the matter of speech.
Heck’s law makes it a crime to benefit from falsely claiming to have served in the military or have been decorated for that service. Individuals who knowingly lie “with intent to obtain anything of value” would be subject to the same prison terms: Up to six months for basic lies about military service, and up to a year for lying about receiving the Medal of Honor, should those lies be told with the intention of gaining a job, a reward, or other thing of value.
The bill doesn’t specify exactly what “anything of value” is, though a de minimis clause in the bill suggests it couldn’t be applied if the thing procured by lying is of minimal value, such as a beer at a bar. The thing in question must also have a value that is quantifiable, so lies about military service told with the intention of getting the attention, a date, or something less gentlemanly with a person at that same bar is also likely not prosecutable.
I will have more on this as I get through the reading, but keep getting interrupted with calls from the media.
Category: Politics
@44 (I was #43 and didn’t intend to post anonymously.)
Anyone whose actions risk the public in such a way (taking control of a collapsed bridge under false credentials) should be held liable. As should anyone who scams people out of money, perhaps above a certain threshold. I’m a fairly liberal guy, but I have no problems with the idea of a law against SV, it just needs to be less broad, apparently.
I certainly wasn’t claiming it is a ‘victimless crime’.
@45 I agree that would be interesting, but I naturally dislike any ‘pain and suffering’ notions – make it she marries the guy, gets pregnant, decides to keep the kid in part because her boyfriend’s ‘military benefits’ will help with the health-care, only to find out he’s a fake and no such benefits exist. Then you have an argument with real injury, but it’s not as crystal clear as ‘fake vet scams someone out of $10K’.
I haven’t read the rulings yet, but if SCOTUS really couldn’t find demonstrated injury, I’d be shocked. I had thought their ruling was simply because there ARE instances were the damage done by such a lie is fairly minimal, and making those federal crimes was seen as a reach. (That’s in non-legal terms, obviously.)
This is what we fight for…..
#50 – unless it is to Congress. Then you are only safe if you are a friend of the President.
@46 Agreed – and they should be charged for whatever scams they perpetrate, and, in my opinion, for falsely claiming military honors that may have helped enable those scams. I don’t have any major problem with the idea behind the law, I was simply observing that it might have been too broadly written.
What was the vote of OBO’s appointees ?
Aw golly gee, yoo clazy Amelicans, I hate to be the one who told you so, but I told you so. I saw this coming months ago. It isn’t the SCOTUS or Congress. Amelicans are nuttier than squirrel turds.
SO, when we march on Washington DC, shall we all dress as SCJs?
So it’s okay to mount emergency lights on my vehicle and drive around dressed up as a police officer (subject to firearms restrictions, of course)?
Free speech, you know. As long as I don’t try to GET anything with my misrepresentation, it’s all good… right?
Couldn’t find a real Navy Cross on ebay, but I did get a pretty sweet lapel pin version for under $15. Now I’m seeong if I can get a SEAL badge.
Xavier Alvarez is a first amendment hero. He’s done much more for free speech than any of you faggots.
You also Gallagher fan, I seldom see bravery to match that of a person with an obvious nom de guerre writing on a blog. Just heroic. Go get the medals, you’ve certainly earned them.
@59 Old saying: “You can read all the books you want, but you’re not a horseman until you swing your leg over a horse.”
Buy all the medals you please. All you’ll ever be is a little boy playing dress-up.
@57 Majority decision was: Cheif Roberts,Kennedy, Ginsberg, Breyer, Kagan and Sotomeyor
Dissent: Alito, Scalia and Thomas
By all means, Gallagher Fan – go right ahead.
But you might want to consult 18 USC 704a before wearing them in public. Today’s SCOTUS opinion only dealt with 18 USC 704b.
Technical correction, HM2 FMF-SW Ret: It was a plurality decision, not a majority decision. It went the way it did because that plurality was supported by a separate concurrence which agreed with the decision, but on different grounds. Not the same, as a revised law could meet the objections of the separate concurrence while not meeting the objections of the plurality.
Plurality (4): Kennedy, joined by Roberts, Ginsburg, and Sotomayor.
Separate Concurrence with different rationale (2): Breyer, joined by Kagan.
Dissent (3): Alito, joined by Scalia and Thomas.
For it to have been a majority decision, 5 justices would have had to support the reasoning in the majority decision.
Don’t worry. Most of you’ll will be dead in a few years (cough, cough) and the constitution will still be around. The guy was convicted of lying. Hell, each of us lie every day. Good for Roberts. He is thinking, not knee-jerking like most in here.
Well, we know where all the freakin’ trolls are today…They came over here to strut!
If I can lie about my military service, then I can lie to Congress and law enforcement. It’s all just free speech.
Time to buy that “Made in China” Medal of Honor I’ve had my eye on, along with my Special Forces tab and HALO wings. And mebbe about 10 years of combat hash marks cuz I’ve been deployed for all that time. OOh-OOh-OOh–now I can also be a Longbow pilot!
Man I am BAD to the Bone!
Hey Gallagher, I have an old toy Navy Cross that
I’ll sell to you. But I won’t accept food stamps.
How’s about that we all claim to be members of congress? Wonder how they’d like that??
Although, there is something very appealing about showing up in front of the Capitol wearing black robes.
tj: Roberts didn’t write any of the opinions in this case. The decision’s authors were Kennedy (plurality), Breyers (concurrence based on different legal reasoning), and Alito (dissent). Such errors show you really don’t know what you’re talking about, and kinda detract from your credibility.
Then again, that assumes you care about little things like credibility. Trolls usually don’t.
I believe the justices might have supported the law if it had included a phrase like “with intent to defraud” or “intent to commit fraud” or “intent to gain profit from fraudulent acts”, or some such thing.
So now I can dress up in my Dragonslayer uniform and add all those ribbons I made up out of my creative imagination, right? I’m on it.
And my gun’s bigger than yours is, Gallagher.
Dear TSO,
Before I read this, I want to thank you for the photograph of Justice .
@72 but in such case, isn’t it already against the law? Thus, no reason to have a seperate law. BTW, you always could dress up in your Dragonslayer outfit. Take pictures.
Hey 72, you better aim for my head because I’m going to be rocking so much phony metal that your bullets will just bounce off my chest.
Hey Hondo I’m thinking it’s time to revoke your GED. TJ never claimed Roberts was the author of any of the opinions in the SVA decision, he was just giving him props for being on the right side of the debate. Learn to fucking read.
Hey Gallagher Fan. I invite you to either NYC or Virginia Beach with that NAVY CROSS. When you arrive contact me direct. Ensure you are wearing the NAVY CROSS. Then I will introduce you to some of my friends. Perhaps you can express your right to purchase and wear the NAVY CROSS to them.
BTW I am very easy to locate!
@74 HM2 — I do have a photo of me and LT Uhura. I can’t put a jpg on deese board.
Gallagher, I don’t use bullets. NO Dragonslayer does. We use plasma weapons and they boil your nuts so you can’t reproduce.
Gallagher Fan,
By “lapel version”, I take it you mean “mini medal”?
And you got RIPPED OFF, by the way. On NEX online, a mini medal version of the Navy Cross is only $4.25.
Gallagher Fan,
Wow, a bullet proof rack of medals? Hope you find a better source than e-bay, because man, that will take a lot of cash at the rate you are going. ($15 for a mini version of the Navy Cross! Plus shipping!)
Also, for the love of Pete. Please don’t mix and match regulation and mini medals. It just looks bad.
Take a good luck guy, today our country went to the dogs
Gallagher Fan: Bull. Roberts could have voted with the dissent and the decision would have still turned out the same, albeit with a one-vote plurality. It’s obvious tj was erroneously giving Roberts credit for writing the decision. And it’s just as obvious that you’re not intelligent enough to figure that out yourself.
Any more ignorant comments, child?
If by “obvious” you mean “something that Hondo just makes up in a poor effort to discredit someone he disagrees with” then you’re absolutely correct.
Tell me, if one of the regulars here who supported the SVA called Roberts a piece of shit because of this, would you accuse that person of erroneously thinking that Roberts authored any of the plurality opinions?
Of course you wouldn’t. You hypocritical fucking fraud.
While wearing medals that you haven’t earned may not currently be illegal, nothing has changed the fact that doing so is contemptible and those that do so would be better served spending their money addressing their inadequacy issues in therapy than buying military honors. I personally would not want to broadcast to the world that I was such a profoundly pathetic, insignificant feeling and unethical person as to wear medals I didn’t earn.
What is it really Gallagher fan? Was the micropenis congenital or was it a slip of the circumcision scalpel that makes you feel stealing the diginity of those who have served is necessary to make up for your “inadequacy?”
No, Gallagher Fan – by “obvious” I mean “apparent to any mature adult with 3 or more working brain cells”. Which clearly excludes you.
‘Course, that’s obvious from your resorting to crude insults. That’s also the hallmark of an immature tool.
Now, why don’t you go hang out somewhere else with some other “misunderstood” teenagers instead of bothering the adults here?
Squid Wiz: the SCOTUS decision today only invalidated the prohibition on verbal claims contained in 18 USC 704b. The prohibition on wearing unauthorized military medals in 18 USC 704a – which predates the Stolen Valor Act of 2005 by some 45 years – was not addressed by the SCOTUS decision. That prohibition is presumably therefore still legally binding.
Gallagher, thank god for the internet. where else would you talk shit without eating your teeth? you better hope to god Jonn don’t give me your IP
Thanks for clarifying Hondo.
I also wondered about some of the “Poe”s of the world…presuming some of these individuals are still on IRR, is there any chance that they could be returned to active duty and charged under the UCMJ?
Fellas, don’t feed the trolls. They are just trying to get a reaction out of you, and remember what we are, as military men (and women) above all, is disciplined. We need to keep our fire focused on what matters.
We failed to meet our primary objective today with this ruling. However, there appears to be room for a rewrite of the law. So, that being said, write your congressmen, hound em relentlessly. Remind them that they work for the people and that we, as part of aforementioned people aren’t going to stop our fight to keep these fools from slandering our brave soldiers who’ve actually *earned* their decorations.
So, we fall back, regroup, reorganize and counterattack. It’s part of our creed, after all. Remember,
We will always place the mission first.
WE will never accept defeat.
WE will never quit.
WE will never leave a fallen comrade.
This SVA strike down is the first battle of the first campaign of a long, long war. Lets get to work.
@87 – Squid wiz — the answer to your question is a definitive yes. I was at my car shop getting my car serviced and ran into a PN who was on her way to a sub tender at Guam. I discussed this with her, because you can be reactivated if you are in a critical rate, which she said I was. When I told her I thought I was a bit past the age of reactivation, she specifically said the younger service personnel would go first, and people in my age group last. She had recently processed people who thought they were done with the military by 2006.
Yes, even a slacker like Timmy Poe can be recalled whether he likes it or not. I would not want to be in his shoes, should that happen and he runs into SGT Bone. 😉
While the SVA may not be addressed or another law passed until at least 2013, let me just retort to one point GH made.
Alvarez isn’t a First Amendment hero. He’s a fucking lying piece of dried out fly shit who is going to burn in hell and he fucking knows it. His name is fucking mud. And for you to defend or even rationalize his comments simply confirms you as being the worthless basement dwelling lot lizard you always have been.
Now go fetch your fucking shine box.
The best remedy is to uphold the SCOTUS decision on 1st amendment rights… they have the right to lie; true Americans have the right to expose them as frauds without the fear of reprisal. If some douchebag wants to claim a CMH… let him. Then, expose his ass to ANY media outlet that will listen. Put up billboards in his hometown (freedom of speech) take out radio ads (freedom of speech) post newspaper ads (freedom of speech)… the 1st amendment protects all of us…
What sucks is that on bloggs and everywhere you go you find someone lying about there service. I only got to serve one year becouse of injuries caused by me getting sick and other stuff, and had my militery career cut short. some of these guys that sit there and lie I look at that I would have loved to have a chance to have been as long as them, and would have made what there peise of shit career they had better becouse I wanted it so much more.
It is like a slap in the face to some people who wanted so bad and could have a good career if it wasn’t cut short and to all that sacrifised everything for some wanna be CALL of Duty Solider to make up lies. I can atleast say I was proud of the year I spent in, even though all my injuries happened when in training, I have always hoped that I made another soilder I trained with a better person to respect there job becouse they knew how hard I tried.
I see there lies and call them out all the time online and on xbox so much but it doesn’t seam to make a difference. I say make a web site that names every one of them.
Living in the Florida Panhandle, I can’t tell you how many times I’ve had someone older than I see my Disabled Veteran plate on my car and start talking to me about their “Vietnam Rotation(s)” only to have me question them further and figure out they are full of shit. When this happens, I very calmly, yet forcefully, get into their personal space and tell them how disgusting they are. Among the other things I say to them. Now those kinds of people are just plain sorry ass liars, but it’s their right to talk bullshit if they want to. It’s also my right to hammer the ever living piss out of them and//or stomp a mudhole in their ass if they want to get pissy with me. Veterans need to know how to sharp shoot these people and then, embarrass the hell out of them in public. But the SECOND one of these people takes a single penny from someone, they need to charged with a crime. It’s unfortunate that so many in our Congress and Supreme Court, not to mention our POTUS, haven’t served a single day in the military. If they had, things like this would pass without any trouble.
And just to clarify since I didn’t say so above, the second someone claims a medal, I don’t care if it’s the NDSR or an AAM on up to the MOH, they should serve time for it. If they make service claims that end up in the media, or newspapers or any other mass information streaming outlet, then they go to jail.
If you haven’t done the time, you won’t understand why it’s a crime.
My first reply here>
AMEN Tom!!!!!!
Been saying for awhile now that NO ONE should be pres/v p without having served!!! They have NO RIGHT to send anyone into harm’s way without a clue.
1 year MINIMUM!!!
First we have been playing nice .Let start using the SVA . Let us start filing fraud charges besides exposing the Posers and Bloaters to every media. The Posers are always in for again of some form. As Doug S. has said before look deeper almost all the time there is also ILLEGAL acts by the poser.
Correct 2nd sentence should readWE have bewen using the SVA. Hardball time.
FWIW someone who is legally acting like an a**hole is still an a**hole. This ruling just makes what guys like you and POW net do to out the frauds that much more important, and that much more appreciated by this civilian lurker who’s last uniform was of the Boy Scout variety.
@88 You are correct, more work needs to be done to create the law in a fashion that meets the test of constitutionality. While this topic clearly inflames passion, this decision is not a death knell to the law’s concepts. The challenge is keeping the weak minded fools in DC focused long enough to make the necessary corrections and resubmit this legislation to the process.
Here in the people’s republic of Massachusetts I will see if I can’t get Senator Brown interested in working for the people of this great nation whose service taught them they don’t need to lie to get ahead.
I don’t know where in the hell impersonating a member of the military is protected under the constitution. I’ve read the document, and I’ve never seen any reference to that so-called “right”.
Lying about your military service, fraud, and impersonating is “ free speech”? Well hell, in that case, just provide a fill-in-the-blank DD214 for these turds so they can create their own “history”, carte blanche.
What about perjury, obstruction of justice, or impersonating a police officer or a doctor? Can I computer-generate a law-school diploma along with an impressive resume, and call myself a judge?
It’s called “Stolen Valor” for a reason.