Stolen Valor Act 2: Congress Pushes New Military Impersonation Law After Supreme Court Smackdown

Back in June the Supreme Court of the United States struck down the Stolen Valor Act, a law criminalizing the impersonation of a veteran, declaring it too broadly written to be enforceable and concluding that its vagueness ran afoul of the First Amendment. Congress appears to have taken the Supreme Court’s guidance in stride and is in the process of pushing through an updated version of the law intended to address the justices’ critiques.

The original Stolen Valor Act, signed by President Bush in 2006, made it a crime to falsely represent oneself as having received any U.S. military decoration or medal, with violations punishable by fines and up to a year in prison.

The problem with the original act, as I noted and the Supreme Court confirmed, was that while the goal of the law was well-meaning, the lack of an intent factor made it so that the law criminalized everyone from children wearing their parents’ “I’m a Veteran” t-shirt to actors playing soldiers on screen.

While calling misrepresentations of service a “pathetic attempt to gain respect,” majority author Justice Anthony Kennedy said that criminalizing all such misrepresentations without taking into account how or why they were made would lead to an Orwellian pursuit of potential falsehoods.

“Some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation,” wrote Kennedy, noting that such expressions is something “the First Amendment seeks to guarantee."

The new version, which passed the House yesterday on a 410-to-3 vote and is expected to get similar support in the Senate, addresses that issue directly by adding in a requirement that the misrepresentation be made with the intent to obtain payment or other benefits.

Adding such an “intent” requirement ensures that the law will survive judicial scrutiny should it be taken back to court because the First Amendment does not protect speech intended to defraud or cause harm via misrepresentation or falsehood.

The need for, and effect of, the legislation is questionable at best. Although there was a flurry of media reports that inspired the original act, most actual misrepresentations made to gain benefits are already covered by existing fraud laws. Neither the original nor the updated Stolen Valor Act will make a difference in terms of sentencing, since most state and federal fraud laws can carry much harsher sentences than the year of imprisonment contained within the act.

Similarly, lying about military service for the sole purpose of lying about military service, such as drunken bragging at a bar or embellishing stories at an office Christmas party, will still remain largely legal since proving intent to defraud will be difficult.

Somewhat ironically, Xavier Alvarez, the defendant in the case that went to the Supreme Court, would likely not be prosecutable under the new version of the law since his statements, while completely fabricated, were not actually made to confer any monetary or physical benefits unto him. It was a text-book case of boasting that would not be prosecutable under the updated law.

Although the legislation smacks of solutions looking for problems, the political good-will earned by passing such a bill is explanation enough for its existence. From a Congress dead-locked in partisan bickering heading into a presidential election, expect this to be passed and trotted out soon as the latest example of bipartisan cooperation, regardless of actual utility. 

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Mark Kogan

Mark is a lawyer and Mic contributor living in Washington, D.C.

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