Why Stolen Valor doesn’t violate 1st Amendment
Last month I wrote about the Denver Post going squishy on Richard Strandlof’s impending trial for a violation of the Stolen Valor Act. The Post wrote that convicting him would violate his 1st Amendment right to free speech. Well, apparently, there’s some case law that says otherwise.
In 2008, Xavier Alvarez, while running for office on his local water board made the following statement on the campaign trail;
“I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.
Aside from the sheer idiocy of the comment, Alvarez, in his motion to dismiss, stated;
The law is overbroad for other reasons. It applies not only to mistakes but to
innocent bragging as well. It includes satire. It would apply to person to claim they had
received a military decoration while playing a role in a play or movie. Certainly the
government’s interest in banning such speech is outweighed by the First Amendment
rights implicated.
Yeah, when I saw Clint Eastwood in Heartbreak Ridge, as Gunny Hiway, state he wearing the Congressional Medal of Honor, I didn’t for a moment think he was trying to imply that he was awarded the CMH. In response, the court wrote;
Here, this Court is presented with a false statement of fact, made knowingly and intentionally by Defendant at a Municipal Water District Board meeting. The content of the speech itself does not portray a political message, nor does it deal with a matter of public debate. Rather, it appears to be merely a lie intended to impress others present at the meeting. Such lies are not protected by the Constitution.
As Defendant’s statement does not merit the protection of the First Amendment, the statute under which Defendant is being prosecuted, 18 U.S.C. § 704, cannot be deemed unconstitutional as applied in this case. Furthermore, a legislative act is facially unconstitutional only when no set of circumstances exist under which the act would be valid. United States v. Salerno, 481 U.S. 739, 745 (1987). In finding that the application of 18 U.S.C. § 704 is not unconstitutional as applied here, this Court therefore concludes that the
Act is not unconstitutional on its face.
So, nice try, Denver Post/Strandlof/Rutherford Institute…try again.
Thanks to 1stCavRVN11B and POW Net for the .pdfs.
Category: Phony soldiers
I’d think even a cursory consideration of slander and libel laws would put lie to any claim that this is “protected speech”, given that said laws establish that false and injurious statements are legally actionable. The statements being demonstrably false, the real target of attack here has to be “injurious”, which pushes the Post’s article from stupid to deplorable. In fact, the Post claims, “if anyone is injured by such false claims, it would be the person who is lying.” Not much to say when someone claims that heroes are not damaged by liars laying claim to the same awards.
[…] Why Stolen Valor doesn’t violate 1st Amendment Last month I wrote about the Denver Post going squishy on Richard Strandlof’s impending trial for a violation of the Stolen Valor Act. The Post wrote that convicting him would violate his 1st Amendment right to free speech. Well, apparently, there’s some case law that says otherwise. […]
It is not the lying in itself that is the issue. The underlying issue is fraud. The lying is done in order to obtain some intangible or tangible benefit of being considered a war hero. That is fraud. Not protected free speech.
Do you have the case name and citation for the Alvarez case you quote above? if so would you email it to me?
He gave himself away when he said Congressional Medal Of Honor. It has not been called that for some time. It is called the Medal of Honor. Thank God they got rid of Congressional since there is very little Honor in congress. People who make those claims to advance their careers or wear the Medal or other insignia that they did not earn should be prosecuted.