Stolen Valor Act: Is the New Version Still Unconstitutional?

Between filibusters and a divided Congress, we often lament the lack of decisive legislation that ever manages to crawl through the legislative branch. But the newest bill to make it through the House of Representatives appears to only be a repackaging of a previous resolution from 2005 that was subsequently ruled unconstitutional. The newest version of the Stolen Valor Act was approved by the House on Monday, with hopefully enough new language to make it constitutional.

Let's take a look at the Stolen Valor Act passed by the 109th Congress in 2005. It broadened the scope of previous federal law to make it officially a misdemeanor to spuriously represent oneself as a recipient of any U.S. military medal or decoration. Back in 2008, the Chicago Tribune reported that there had already been 20 prosecutions in its first 18 months, leading to fines of $10,000 or up to a year in jail for the greatest offenses, such as claiming a Medal of Honor.

Understandably, such a law was met with many contestations, as multiple convictions were only made based on oral reports or circumstantial interviews. In 2007, Xavier Alvarez introduced himself to a district board by saying, “I’'m a retired marine of 25 years …. back in 1987, I was awarded the Congressional Medal of Honor." Having never been a recipient of the award, Alvarez was found guilty of violating the Stolen Valor Act. His appeal reached the Supreme Court in late 2011 where the justices determined, with a 6-3 ruling that the law was unconstitutional per the freedom of speech granted by the First Amendment.

Since the original Stolen Valor Act was overturned, the right to freedom of speech still holds. So, just how does this new act remain constitutional and target the military impostors? The tweaked law, introduced in late 2012 by Rep. Bill Heck (R-Nev) likens the crime to that of fraud and tapers it to only cover those who hoping to profit from their false representation. The bill made it through the House with a 390-3 vote; that’s quite a bit of bipartisan support.

While most congressmen certainly advocate the need to protect veterans and it is undeniable that those who served valiantly in war should be safeguarded from false representation, it is worrisome how similar this new act is to its unconstitutional predecessor. Sticky language, like allowing prosecution if  "a tangible benefit" can be proved, certainly leaves room for interpretation. Could crafty prosecution allow the scope of this new version to be expanded and return it to its former state of infringing on the First Amendment?

Only time will tell. For now we wait to see what version of this bill will make it through the Senate, and who know when that will even make it to a vote!