On 19 August, I was contacted by the father of a Marine sergeant killed in action in Helmand Province, Afghanistan, earlier in the summer. I had met and come to know the young man’s family during his “Dignified Transfer” ceremony at Dover Air Force Base. The father, reiterating repeatedly that he made no presumptions, told me he was ordering the final engraving on his son’s gravestone. The sergeant’s unit buddies had indicated to the father that they believed an individual commendation would be forthcoming for his actions. The proud father, wishing to include such a distinction on the stone, simply wanted to know if it made sense to hold off on the engraving.
Meanwhile, that same week, the U.S. Court of Appeals for the Ninth Circuit ruled that a federal law known as the Stolen Valor Act, which criminalized the wearing of unearned military awards, was unconstitutional and an infringement on the right to free speech.
At a time when cheap knock-offs of Navy Crosses and Medals of Honor are available for sale on the Internet, those two events called attention to the relative value of military awards. To those who’ve earned them, and perhaps more so to their families, those pieces of cloth and metal are priceless symbols of service and sacrifice, of time spent away from children, of foregone opportunities, and in some cases, of the ultimate sacrifice. As Chief of Naval Operations Admiral Gary Roughead put it when asked about the ruling: “I really do believe that what we wear on our chest talks about what we did for our country.” The court’s decision reduces the false wearing of those awards to the equivalent of a barroom fib, removing the penalty and effectively the stigma from this shameless act.
When President George Washington created the forerunner of the Purple Heart for those who have “given of his blood in the defense of his homeland,” he declared that, “should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.” The 2006 Stolen Valor Act revised and toughened legislation that forbids anyone to lie about having received a military medal or service badge. The measure sailed through Congress, receiving unanimous approval in the Senate. Since then, federal prosecutors have charged 48 people under the act.
Violators have ranged from the preposterous (the non-veteran from Houston who showed up at a political event wearing an Army uniform bedecked with parachute wings, a Purple Heart, two Distinguished Service Crosses, and a medal around his neck marking him as a Commander of the British Empire) to the shocking (the sitting Illinois circuit judge who claimed not one but two Medals of Honor—complete with a display in chambers for visitors. It was only after he applied for Medal of Honor license plates that he was eventually uncovered and forced to resign from the bench).
Perhaps most troubling are those who have gone a step further in their fraud and sought to profit from their shamefulness, like the retired Coast Guard chief warrant officer who claimed to be a decorated and combat-hardened SEAL and managed to get a disability rating from the government. Or the man who passed himself off as a former SEAL and prisoner of war and defrauded the Veterans Affairs Department and Social Security Administration of $280,000 over seven years.
The case that led to the Appeals Court decision involved a local official in California who depicted himself as a Marine and a recipient of the Medal of Honor. He was neither and had been indicted in 2007 and sentenced under the Stolen Valor Act to a $5,000 fine and 400 hours of community service at a veterans hospital. But his guilty plea came on condition that he be allowed to appeal on First Amendment grounds.
In the Ninth Circuit’s 2-1 ruling, the court declared the law unconstitutional because it infringed on the defendant’s freedom of speech, even if that speech was false. Judge Milan D. Smith Jr., writing for the majority, said that if the law were held constitutional, many everyday lies could become criminal acts: “There would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time.”
For the government to limit freedom of speech, it would have to show a compelling need, the decision argued, and not just that a person was lying about military honors. The majority concluded that the central intent of the law, to motivate and honor troops, could be accomplished without restricting speech. Finally, they also found no malice intended nor harm done, since the fabrication came during introductory remarks before a local board.
In his dissenting opinion in the case, Judge Jay S. Bybee asserted that no proof of harm was needed to limit the untruthful speech of the accused. “Such false representations not only dishonor the decorations and medals themselves, but dilute the select group of those who have earned the nation’s gratitude for their valor,” Judge Bybee wrote.
Congressman John Salazar (D-CO), who introduced the bill in 2005, said, “I am confident that upon appeal to the Supreme Court their misguided decision will be overturned. We live in a society that wants to honor our nation’s veterans.”
The question of where to draw the line between free speech and criminal conduct is a sensitive and important one, central to the values we swear to defend. When consideration of this law reaches the Supreme Court, an easy “bright line” test for prosecutions would consist of simply distinguishing acts of false bravado from false statements used to secure financial gain, and then prosecuting them as routine fraud. But the Stolen Valor Act envisioned something wider and more monumental. For example, one purporting to be a recipient of the Medal of Honor, the nation’s highest award typically presented posthumously, is simply different and deserves a heightened level of scrutiny. Arguably, congressional authority to criminalize such cases exists under the Constitution’s direction to support an army. Surely included in that authority is the protection of the worth and value of the symbols of the associated duties. If we as a nation hope to continue to recruit and raise the quality of personnel we do in an all-volunteer force, then protecting the badges of that sacrifice is in the national interest.
Not criminalizing the acts of those who would don such symbols without earning them, in the name of the same Constitution that legitimate heroes act to defend, belittles that sacrifice. I’m hopeful that the Supreme Court, the ultimate guardians of that document, will recognize the sacrosanct significance those medals hold in the constitutionally mandated congressional duty to support an army.