And i think it’s a good decision., even though i suspect that the Supreme Court might end up overturning it.
We’ve discussed this law on these boards before, of course, and i maintained on those occasions that, while lying about military service and honors is a rather repugnant act that is worthy of contempt and ridicule, it should not be subject to legal sanctions unless it is done in order to make a material gain through fraud or deception.
It seems that the Ninth Circuit Court of Appeals agrees, as they’ve just declared the law unconstitutional in a 2-1 decision. In their ruling, they presented a similar argument to the one i have made above, saying:
They also specifically noted that the defendant in the case, Xavier Alvarez, had not done any harm with his false claims, as those claims were made during some offhand remarks at the beginning of a Water Board meeting. The defendant has also, in the past:
The court found that the government had not shown a compelling need to restrict claims about military honors, and it also noted that the motivation to honor the troops could be satisfied in ways other than restricting freedom of expression.
This last factor is, i think, one of the things that most perplexed me about the people who argued in support of these laws. Many of these supporters argued that allowing people to boast of medals they never earned devalues the service and the sacrifice of the real soldiers. I never found this very compelling; my respect for those who fight is in no way diminished by the presence of a few lying douchebags. The fact that some blowhard can claim to have won medals when he was never in the armed forces is in no way a reflection on those who do serve.
I think a judge in Denver said it best last month, when he dismissed charges in a Stolen Valor case, and called the Act unconstitutional:
I can see the issue from either side, depending on the situation. If the guy is just making crap up to make himself look good, as it appears it was in this case, then fine. Let him. It’s no different than guys who claim to have a 9 inch penis. Eventually someone who cares will be in a position to know he’s lying, and things probably won’t go well after that.
OTOH I could see a law in cases where a guy is lying to benefit himself. For example, if he’s claiming military service/awards to gain veterans benefits, to appear more trustworthy as part of a scam, or to get elected to some office or another then it seems to me to be more of an issue of fraud than lying. I think these sorts of hypotheticals are already illegal though. I don’t believe I can claim I earned a gold star for not peeing my pants in combat in order to try winning an election, when the truth is I’ve never served at all. If I’m wrong on that, then perhaps a law like this is needed. Suitably limited and written specifically to target fraud instead of just plain lying of course, which the Stolen Valor Act is not.
Well, I made a strong argument on this issue (or perhaps my critics would say that I argued, strongly but poorly) that the Act was constitutional, based on the lack of case law finding otherwise.
Of course the Supremes may still weigh in, but inasmuch as there’s now precedential case law saying otherwise, it behooves me to say: looks like I was wrong-o.
I think existing fraud laws would cover that stuff. I’m sure they would cover something like veterans’ benefits.
I said in the previous thread that I didn’t have a problem with these laws (I didn’t think there was much comparison between, say, wearing a military costume for Halloween and telling people you served in the special forces), but I don’t have a real objection to this decision either.
Well, as I told Bill Brennan when I was helping him write the Texas v. Johnson decision, someday you’re going to regret this overbreadth freedom. But Bill was just a headstrong kinda guy.
As I mentioned in the previous thread on this topic:
The dismissed cases linked to in the OP are even further down the scale, IMHO–in that you simply have people who falsely claimed to have been a veteran, or to falsely claimed to have served in a particular conflict, or to have falsely received a medal, or some combination thereof.
I can see that making a false claim for something that occurred in the past might indeed be protected speech, for all the reasons that have been discussed.
I would have more of problem with someone falsely claiming to be an active-duty servicemember, and would take the most issue with someone actually putting on the uniform of an active-duty servicemember and impersonating a servicemember–like the fake Marine discussed in the earlier thread. In my mind, these actions are little different from someone falsely claiming to be a police officer, or more seriously, actually putting on a police uniform and impersonating a police officer.
As one of the articles linked to in the OP states:
I just finished the test run for my time machine. Went back to six BCE and totally nailed some teen-slut in Nazareth. Good times. But my hobby of high-energy physics can wait, I’ve got to return to duty as an Ultra-Violet Level Clearance Navy Seal to continue my ongoing mission, killing the people who uncover the *truth *about 911.
While facially similar, the two situations are different in some pretty important ways. Police officers have authority to act differently to non-police officers in everyday life. Members of the military in general don’t, at least not in ways that affect people on a day to day basis. Pretending to be a police officer has a much greater potential to cause harm, such as a person wasting time reporting a crime, for example. I’d be willing to bet that someone impersonating a military member around a nuclear facility, for example, would already be prosecutable under existing laws.
I don’t think you can justify the law under a public interest/protection standard, and it seems to be another part of the fetishization of military service. It strikes me as odd that claiming to have received a Nobel Prize for Medicine for curing AIDS is not prosecutable, but claiming to have spent three months drinking at Naval Station Great Lakes, protecting against the Canadian hordes, and drinking until receiving a dishonorable discharge would be. The same situation can be seen with the protesting at funerals situation - no one in power gave a crap about Matthew Shephard’s funderal being picketed by fundies, but as soon as veterans became involved, it was cause for legislation…
Now, that doesn’t make it unconstitutional of course. I wasn’t under the impression that deliberate falsehoods (outside of political campaigns and satire) had any degree of protection. I guess I need to read the opinion and see what they based this on.
I think it would be difficult to write laws outlining exactly it would be permissable to impersonate an active-duty service member. Should it only be illegal if a state of martial law exists, for example? I don’t think it’s an overreach of government authority to prohibit impersonating an active-duty member of the country’s armed forces in all cases.
I disagree, for reasons I’ve mentioned previously.
:rolleyes: That’s a bit inflammatory, isn’t it?
Well, now you’ve shifted gears and are back to talking about someone lying about past service. I’ve already agreed, and so have a couple of federal judges, that this is probably protected speech (though I think that it is reprehensible conduct).
I never said it was an overreach. I specifically later said I wasn’t sure if it was unconstitutional. But if you want to criminalize something, I think it is incumbent on you to provide a reason. I noted there was a reason for criminalizing impersonating a police officer. Can you think of an actual, reasonably common situation, in which harm is caused by impersonating a member of the military, that isn’t already illegal?
I’m pretty certain if you dressed up in military uniform and tried to get into a nuclear facility, for example, you’d be committing some kind of crime other than the impersonation.
But you didn’t provide a realistic example of the harm impersonating a member of the military can cause. Again that isn’t already illegal.
Not really. We do fetishize military service. I have respect for those who serve in the military, but I don’t think it automatically makes a person a saint.
OK - change it to a person claiming to have won the Nobel Prize for curing AIDS and a person currently serving at Naval Station Great Lakes. Same difference.
But OTOH claiming to be a physician and currently giving people medical treatment without actually having the degree or license IS prosecutable.
I could see the logic in outlawing (misdemeanor and fine only level) a deliberate effort to impersonate a military or civil official in a context where it could lead others to assume you are vested with the authority or perquisites of the office. True, it is only upon you actually exercising the misappropriation of authority/perks that it really becomes a burden on society, but it seems to me it would not be nuts to make Step 1 in the process also an offense, just so you are well warned to NOT take the next step.
Of course, in my case I am a Colonel, with a commission… … signed by the governor of Kentucky, for social-event purposes
