# Stolen Valor Act ruled unconstitutional. **URL:** \ **Category:** Great Debates\ **Created:** [August 19, 2010, 6:06am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721 "2010-08-19T06:06:06Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [August 23, 2010, 2:29pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/41 "2010-08-23T14:29:56Z")
> [@Bricker](#): > > I think the Federal Circuit suffers from a tiny sample size, which dramatcially skews its percentages. All the sample sizes are small, but the Federal Circut numbers aren’t wildly smaller then the others. They had more cases before the SCOTUS then the 10th, 3rd and 1st over the ten year period. > [@](#): > > And of course the Federal Circuit is limited in jurisdiction to IP cases, which is not really the subject matter that we’re discussing here. True that their subject matter is different then the other courts (but I don’t think its just restrained to IP, according to the link some 15 out of the 35 cases brought to the SCOTUS were not patent cases) , I was remembering a thread from a few years ago where the ninth circut was below average for a several years, so I thought their placement in the rankings of number of reversed cases was still below average. Still, in the interest of fighting ignorance, its not true that the ninth is the most reversed federal appeals court. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [August 23, 2010, 2:30pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/42 "2010-08-23T14:30:03Z")
> [@Bricker](#): > > > [@villa](#): > > > > Isn’t the relevant percentage rate the number of cases overruled by SCOTUS out of the total number of cases decided by the Court of Appeals, rather than the number of cases SCOTUS reviews from that Circuit? > > No. > > The Court has a number of motives to hear a given question: > > 1. The court below got it wrong (or there’s a split in circuit authority, which means even if they don’t care strongly what the right answer is, SOMEONE is wrong) > 2. There’s a substantial federal interest in the question > 3. They have to, because it’s part of their original or appellate jurisdiction. > > Even so, the size of the Ninth Circuit dwarfs the other federal circuits. The Supreme Court simply lacks the resources to grant more certs than they do. So to take 2006, the Ninth Circuit cases they DID accept generated almost a third of their workload for the year. I still don’t see how the correct “reversal rate” isn’t: Number of cases Overturned by SCOTUS/Number of cases decided by Circuit. I see there is some value in the number calculated, but it’s a less accurate indication of how often the circuit is ‘wrong.’ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 23, 2010, 2:56pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/43 "2010-08-23T14:56:19Z")
> [@Simplicio](#): > > Still, in the interest of fighting ignorance, its not true that the ninth is the most reversed federal appeals court. Correct. It’s the most reversed general jurisdiction federal appeals court. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 23, 2010, 3:00pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/44 "2010-08-23T15:00:02Z")
> [@villa](#): > > I still don’t see how the correct “reversal rate” isn’t: > > Number of cases Overturned by SCOTUS/Number of cases decided by Circuit. > > I see there is some value in the number calculated, but it’s a less accurate indication of how often the circuit is ‘wrong.’ Because that figure would assume that the Supreme Court has the capacity to accept as many cases as it likes. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 23, 2010, 3:19pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/45 "2010-08-23T15:19:29Z")
More on the Federal Circuit’s jurisdiction: [United States Court of Appeals for the Federal Circuit - Wikipedia](http://en.wikipedia.org/wiki/Federal_Circuit) A NYT article on the Ninth Circuit’s liberal reputation and frequent reversals, [http://www.nytimes.com/2010/04/25/us/25sfninth.html](http://www.nytimes.com/2010/04/25/us/25sfninth.html), includes this passage: “Those who criticize the court say the best evidence for their argument is the Supreme Court, which overturns the decisions of the Ninth more often than those of any other circuit. According to the Administrative Office of the United States Courts in Washington, the Supreme Court reversed the Ninth 14 times of the 16 cases in the 2008-2009 term — an 88 percent reversal rate.” But others disagree, as you’ll see on p. 2 of that article. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 23, 2010, 3:22pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/46 "2010-08-23T15:22:56Z")
> [@Bricker](#): > > > [@Simplicio](#): > > > > Still, in the interest of fighting ignorance, its not true that the ninth is the most reversed federal appeals court. > > Correct. It’s the most reversed general jurisdiction federal appeals court. Nitpick again, it’s the general jurisdiction federal appeals court that’s had the highest percentage of its cases reversed and vacated. According to Simplico’s list, the 10th has a higher percentage of cases reversed, but the higher number of 9th circuit cases vacated pushes it over the edge. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [August 23, 2010, 3:25pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/47 "2010-08-23T15:25:43Z")
> [@Bricker](#): > > > [@Simplicio](#): > > > > Still, in the interest of fighting ignorance, its not true that the ninth is the most reversed federal appeals court. > > Correct. It’s the most reversed general jurisdiction federal appeals court. Reading the decision, I am more convinced by Judge Bybee’s dissent than by the opinion. Now, I am just an uneducated layman, but there you go. I won’t predict what the Supreme Court would do, but my original opinion was that the act was constitutional. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [August 23, 2010, 3:32pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/48 "2010-08-23T15:32:32Z")
> [@Captain\_Amazing](#): > > > [@Bricker](#): > > > > Correct. It’s the most reversed general jurisdiction federal appeals court. > > Nitpick again, it’s the general jurisdiction federal appeals court that’s had the highest percentage of its cases reversed and vacated. According to Simplico’s list, the 10th has a higher percentage of cases reversed, but the higher number of 9th circuit cases vacated pushes it over the edge. Is it? Or is it the general jurisdiction federal appeals court that has had the highest percentage of its _ **reviewed** _ cases reversed and vacated? It could of course be both, but I don’t know the numbers. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 23, 2010, 3:42pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/49 "2010-08-23T15:42:50Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What if the Federal Government decrees that all military decorations awarded henceforth remain the property of the US Federal Government, and may only be worn, carried or claimed by those so awarded and their progeny? Anybody want to tackle this? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 23, 2010, 3:46pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/50 "2010-08-23T15:46:40Z")
> [@villa](#): > > > [@Captain\_Amazing](#): > > > > Nitpick again, it’s the general jurisdiction federal appeals court that’s had the highest percentage of its cases reversed and vacated. According to Simplico’s list, the 10th has a higher percentage of cases reversed, but the higher number of 9th circuit cases vacated pushes it over the edge. > > Is it? Or is it the general jurisdiction federal appeals court that has had the highest percentage of its _ **reviewed** _ cases reversed and vacated? > > It could of course be both, but I don’t know the numbers. Well, it could be both, but you’re right. **Simplicio’s** numbers only show that it’s the general jurisdiction federal appeals court that has had the highest percentage of its reviewed cases reversed and vacated. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [August 23, 2010, 3:52pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/51 "2010-08-23T15:52:24Z")
> [@Captain\_Amazing](#): > > Well, it could be both, but you’re right. **Simplicio’s** numbers only show that it’s the general jurisdiction federal appeals court that has had the highest percentage of its reviewed cases reversed and vacated. The ninth had the third highest percentage of cases reviewed by the SCOTUS (after DC and federal appeals), so at best taking into account the total rate of cases over-ruled, ninth might move from second to third highest. If you want, the numbers in the pdf shoud allow you to calculate the actual rankings in terms of percentage of total cases over-ruled, but in anycase, it won’t make that much of a difference in terms of the ninths relative placement. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [August 23, 2010, 5:42pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/52 "2010-08-23T17:42:39Z")
> [@Bricker](#): > > In 2006, the Supreme Court heard 21 cases from the Ninth Circuit, 29% of its overall workload. It reversed or vacated 18 of those cases for an **86% overrule rate. No other circuit was this high.** > > In 2005, the Supreme Court heard 18 cases from the Ninth Circuit. It reversed or vacated 15 of those cases for an 83% overrule rate. **No other circuit was this high, again, in either percentage or total cases overruled.** I have to ask where you’re getting your figures from, because the figures in **Simplicio** ’s link, and my figures outlines below, make clear that your statements about percentages are simply flat out wrong. Did you actually look into the reversed/vacated numbers for the other circuits, or did you just assume the 9th was highest by percentage in those two particular years. [SCOTUSBlog](http://www.scotusblog.com/) has been producing Supreme court stats for various aspects of the Court’s decisions (agreement between Justices; 5-4 decisions; opinion tallies; decisions by final vote; etc.) for the past few years, and their figures tell quite a different story. For the two years you picked, they concur with your numbers for the Ninth Circuit. Reversed or vacated 15 of 18 in 2005 and 18 of 21 in 2006. And they agree that this represented the highest absolute number of cases. But they do not concur that this represented the circuit with the highest percentage. In 2005, the 1st (100%), 2nd (86%), 3rd (100%), 7th (100%), DC (100%), and Federal (100%) circuits all had higher percentages. In 2006, the 3rd (100%) and 5th (100%) both had higher percentages. The 2005 stats can be found on [this page](http://www.scotusblog.com/blog/2006/06/29/the-numbers/), and the 2006 stats on [this page](http://www.scotusblog.com/blog/2007/06/28/ot06-the-statistics-and-a-super-statpack/). On each page, click on the Circuit Scorecard link for the relevant PDF file. Also, the 9th Circuit did not have the highest reversal percentage for [2004](http://www.scotusblog.com/blog/2005/06/30/final-versions-of-term-summary-documents/), [2007](http://www.scotusblog.com/blog/2008/06/26/end-of-term-super-statpack/), [2008](http://www.scotusblog.com/blog/2009/06/29/end-of-term-super-stat-pack/), or [2009](http://www.scotusblog.com/blog/2010/07/07/super-stat-pack-ot09-available/) either. They didn’t do a Circuit Scorecard in the years before 2004, so that’s as far back as i can go with those figures. I’ve tallied up the figures for the years 2004-2009 inclusive, and got the following figures: ```auto Circuit Total R/V % 1st 13 7 53.85% 2nd 37 26 70.27% 3rd 15 10 66.67% 4th 23 17 73.91% 5th 30 23 76.67% 6th 40 30 75.00% 7th 26 18 69.23% 8th 22 16 72.73% 9th 99 79 79.80% 10th 17 11 64.71% 11th 39 23 58.97% DC 13 8 61.54% FC 18 14 77.78% ``` The percentages in my 6-year period are pretty close to those for **Simplicio** ’s 10-year period. As you can see, the 9th is the most reversed/vacated by percentage over that six year period, but not my much. Political science professor and researcher Susan B. Haire, who spends time investigating precisely this issue, notes in [this New York Times piece](http://www.nytimes.com/2010/04/25/us/25sfninth.html?_r=2&pagewanted=2):In the context of the total volume of cases, she said reversals are “marginally higher than the other circuits, but such a teeny-tiny difference from a substantive perspective even if it is statistically significant, people might say that’s to be expected when you have such a high volume” of cases. [/quote] ---
**Author:** ![Nars\_Glinley](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nars_glinley/32/8177_2.png) [@Nars\_Glinley](https://boards.straightdope.com/u/Nars_Glinley)\ **Post date:** [August 23, 2010, 6:05pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/53 "2010-08-23T18:05:07Z")
[Somewhat recent poll](http://boards.straightdope.com/sdmb/poll.php?do=showresults&pollid=275) on wearing unearned medals. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 23, 2010, 6:13pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/54 "2010-08-23T18:13:41Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What if the Federal Government decrees that all military decorations awarded henceforth remain the property of the US Federal Government, and may only be worn, carried or claimed by those so awarded and their progeny? Hmmm. I think that could work. It’s similar in principle to the practice of states which provide that the actual, physical drivers license or license plates remain property of the state after issuance, giving them broader latitude to recall them, demand their surrender or refuse permission to modify or adopt their content (as with vanity plates). Might be a problem extending the USG’s reach to military decorations handed out before enactment of the statute, though, as it would amount to a taking… or would it? It’d just be an assertion of ownership, 99.99999999999% of the time, after all, not a demand that the medals or ribbons be given back to Uncle Sam. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 23, 2010, 6:16pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/55 "2010-08-23T18:16:31Z")
That’s where I got the idea. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [August 23, 2010, 6:22pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/56 "2010-08-23T18:22:31Z")
> [@Elendil\_s\_Heir](#): > > > [@Really\_Not\_All\_That\_Bright](#): > > > > What if the Federal Government decrees that all military decorations awarded henceforth remain the property of the US Federal Government, and may only be worn, carried or claimed by those so awarded and their progeny? > > Hmmm. I think that could work. It’s similar in principle to the practice of states which provide that the actual, physical drivers license or license plates remain property of the state after issuance, giving them broader latitude to recall them, demand their surrender or refuse permission to modify or adopt their content (as with vanity plates). I’m sure they can probably get around it with some sort of silly law like this, but that wouldn’t change my objection to the principle of the matter. There are readily-demonstrated and compelling reasons for the state to retain ownership of license plates and driver licenses, given the purpose that those identifying markers serve in authorizing people to drive, in authorizing cars to be on the road, and in helping police and other authorities make proper identification in the course of their duties. Encompassing medals under such a law would have no such compelling rationale. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 23, 2010, 6:26pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/57 "2010-08-23T18:26:15Z")
Well, why stop there? By the same token, you could argue that there is no compelling rationale behind the awarding of military decorations at all. After all, if they have no intrinsic value… ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 23, 2010, 6:28pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/58 "2010-08-23T18:28:45Z")
I disagree, **mhendo**. While acknowledging the importance of free speech, I believe that any nation has a valid and lawful interest in seeing that its hard-won symbols of military heroism and service are not worn by those who did not earn them. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [August 23, 2010, 6:45pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/59 "2010-08-23T18:45:19Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, why stop there? By the same token, you could argue that there is no compelling rationale behind the awarding of military decorations at all. After all, if they have no intrinsic value… What a silly thing to say. Even if we accept, for the sake of argument, that what you say is true, the fact is that we’re talking in this thread about curtailing one of the most basic rights that we have - the right to freedom of expression. Any law that curtails such rights should be able to demonstrate a compelling reason to do so, and a compelling reason should never simply come down to “Some people are offended by what you’re saying,” which is what the Stolen Valor Act effectively said. > [@Elendil\_s\_Heir](#): > > I disagree, **mhendo**. While acknowledging the importance of free speech, I believe that any nation has a valid and lawful interest in seeing that its hard-won symbols of military heroism and service are not worn by those who did not earn them. Why? What is the interest? Who is harmed by it? (And by harmed, i don’t mean simply annoyed or offended). ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [August 23, 2010, 6:45pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/60 "2010-08-23T18:45:47Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Well, why stop there? By the same token, you could argue that there is no compelling rationale behind the awarding of military decorations at all. After all, if they have no intrinsic value… But issuing medals doesn’t restrict anyones rights, so there doesn’t really need to be a compelling reason. But preventing someone from claiming to have won a medal does restrict someones speech, so there needs to be a compelling reason. In anycase, I don’t really see how the State retaining ownership solves the constitutional issue. > [@Elendil](#): > > I disagree, mhendo. While acknowledging the importance of free speech, I believe that any nation has a valid and lawful interest in seeing that its hard-won symbols of military heroism and service are not worn by those who did not earn them. I guess if every schmoe on the street claims to have a purple heart, it might cheapen the award, but I don’t really see how it harms the military or real award winners any to have a few scattered fakes running around. Plus, it seems a lot easier and much less fraught with constitutional issues just to publish an online database of military award winners. That way frauds would be more likely to get caught and subject to oppobrium, and real winners wouldn’t have to worry about people thinking they were faking somehow. [Previous page](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721.md?page=2) [Next page](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721.md?page=4)