# 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:** 6
**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:** [October 22, 2011, 9:06pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/101 "2011-10-22T21:06:50Z")
> [@Noel\_Prosequi](#): > > A refusal of certiorari would have been almost as compelling an approval of the 9th Circuit’s view, without SCOTUS drawing on itself the opprobrium necessarily involved in deciding as the 9th Circuit did. > [@John\_Mace](#): > > Why do you say that? When a US Circuit Court overturns a federal law, that means the law is overturned in part of the US (under the jurisdiction of that CC) but not in the rest of the US. ISTM that the SCOTUS is compelled to rule in those cases. SCOTUS isn’t compelled to rule at all, and stretching back to Rehnquist SCOTUS has increasingly allowed “circuit split” situations to stand. For example, the federal circuits are split three ways on [whether a defendant’s silence before being Mirandized is admissible as substantive evidence of guilt](http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/bamalr58&div=36&id=&page=). Three say yes; two say yes, as long as the defendant was not in custody; four say no; two say no, but were ruling only on pre-arrest silence; and one hasn’t ruled on the issue at all but said no in _dicta_. Hell, [this guy](http://splitcircuits.blogspot.com/) maintains a blog devoted exclusively to circuit splits. > [@jtgain](#): > > No Scalia? > > I know he is usually big on free speech, but I can’t see it in this case. First, I think the law is pretty silly. Sure, let some guy lie about earning a Purple Heart. I don’t think it should be a crime. No Scalia. He voted to overturn flag-burning bans. I see this issue as analogous. I agree that lying about having a Purple Heart should be fine. I don’t think wearing one and lying about actually receiving it is okay, though. I still think the proposal I set out on the first two pages (making medals US government property which can only be transferred to the heirs of recipients, and prohibiting the manufacture of replica medals) is the best way around this. Won’t solve the problem WRT existing medals/replicas, of course, unless the fed can renationalize them or something. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [October 22, 2011, 9:55pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/102 "2011-10-22T21:55:46Z")
> [@Elendil\_s\_Heir](#): > > Conservatives on the Supreme Court value free speech, more often than not, but they also honor the U.S. military. I think the latter consideration will drive the decision. Hard to honor the military by stomping on the Constitution. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 22, 2011, 10:16pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/103 "2011-10-22T22:16:27Z")
It doesn’t take a majority of the court to grant certiorari, so the granting of cert doesn’t by itself indicate anything. If it did, we’d always know in advance what the outcome would be. ---
**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:** [October 22, 2011, 10:39pm UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/104 "2011-10-22T22:39:31Z")
Why? They can grant cert and affirm. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 23, 2011, 12:04am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/105 "2011-10-23T00:04:08Z")
That’s the point. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 23, 2011, 12:29am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/106 "2011-10-23T00:29:25Z")
> [@Acsenray](#): > > That’s the point. OK, then they could grant cert and reverse. ---
**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:** [October 23, 2011, 12:35am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/107 "2011-10-23T00:35:08Z")
> [@mhendo](#): > > …In other words, you predict that it won’t actually be the law that drives the decision?.. I said nothing of the kind. Obscenity, slander, libel, fighting words, child pornography, disclosing military secrets, crying “Fire!” in a crowded theater - all are speech that is not protected. I predict SCOTUS will add “wearing and/or claiming military decorations to which you are not entitled” to the list. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 23, 2011, 1:50am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/108 "2011-10-23T01:50:35Z")
> [@Bricker](#): > > OK, then they could grant cert and reverse. That’s also the point. ---
**Author:** ![Chimera](https://avatars.discourse-cdn.com/v4/letter/c/8e8cbc/32.png) [@Chimera](https://boards.straightdope.com/u/Chimera)\ **Post date:** [October 23, 2011, 2:01am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/109 "2011-10-23T02:01:19Z")
> [@Elendil\_s\_Heir](#): > > I predict SCOTUS will add “wearing and/or claiming military decorations to which you are not entitled” to the list. I would certainly hope so. Never understood how it could be ruled ‘protected speech’ in the first place. Representing yourself as something you are not is generally considered fraud. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [October 23, 2011, 2:09am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/110 "2011-10-23T02:09:55Z")
“The law” in very many respects is not a syllogistic process; it requires applications of judgment (is this act “reasonable”? Is that interference with liberty justified? etc). Judges are appointed in part to bring their own sets of values to these decisions. And when they do, they exercise restraint - they are well aware that they are not elected by anybody. Nevertheless, to suggest “that it won’t actually be the law that drives the decision” involves a misapprehension of the legitimacy of judges’ allowing their innate level of conservatism (or its converse) to determine those questions of judgment. And by “conservatism” I don’t mean partisan adherence, although the two may or may not coincide. All that said, one of the peculiarities of the US system is that it essentially forces judges to make what elsewhere would be recognisably political decisions - that is a price paid for having an entrenched Bill of Rights. And my guess above that the decision to hear the case is a strong indicator that the court will reverse the 9th Circuit was never intended to be conclusive. In principle, they might accept the case and uphold. But if they don’t take the case, the 9th Circuit’s decision, coupled with a refusal of certiorari by SCOTUS, will be powerfully persuasive elsewhere in the country (albeit not technically binding), achieving much the same result as SCOTUS’s going to all the trouble of hearing and upholding. And of course I agree that the decision to hear the case is not made by the Full Bench. But it is indicative of how at least some members of the court are inclined, on the reasoning above. Hence my view about the decision to take the case being indicative of the likely outcome. My belief that an industry in valour bling would develop is, as I said above, a slippery slope argument, which arguments I generally find uncompelling. But I didn’t make the idea up entirely. It is already possible to buy a “General Patton” [hoodie](http://www.headlineshirts.net/general-patton-hoodie.html). Imagine if you could get replica medals to go with it? “How cool would that be?” would be a question many would find irresistable. ---
**Author:** ![Chimera](https://avatars.discourse-cdn.com/v4/letter/c/8e8cbc/32.png) [@Chimera](https://boards.straightdope.com/u/Chimera)\ **Post date:** [October 23, 2011, 2:21am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/111 "2011-10-23T02:21:56Z")
I have not followed this very well. Has the military raised any objections to be it being considered ‘free speech’? I would think they would have a vested interest in not allowing Joe Schmoe to dress up like an Army Officer and go around presenting himself as one. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 23, 2011, 2:36am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/112 "2011-10-23T02:36:28Z")
> [@Chimera](#): > > I would certainly hope so. Never understood how it could be ruled ‘protected speech’ in the first place. Representing yourself as something you are not is generally considered fraud. Fraud is already illegal. You have to show detrimental reliance on a false statement. This law goes beyond fraud to make the lie by itself illegal, regardless of whether the other elements of fraud can be shown. Generally speaking you can lie as much as you want – the lid by itself isn’t fraud if there are no legally significant consequences. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [October 23, 2011, 2:43am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/113 "2011-10-23T02:43:12Z")
> [@Noel\_Prosequi](#): > > And my guess above that the decision to hear the case is a strong indicator that the court will reverse the 9th Circuit was never intended to be conclusive. In principle, they might accept the case and uphold. But if they don’t take the case, the 9th Circuit’s decision, coupled with a refusal of certiorari by SCOTUS, will be powerfully persuasive elsewhere in the country (albeit not technically binding), achieving much the same result as SCOTUS’s going to all the trouble of hearing and upholding. And of course I agree that the decision to hear the case is not made by the Full Bench. But it is indicative of how at least some members of the court are inclined, on the reasoning above. How can this reasoning be true for this case unless it’s also true for every other case? ---
**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:** [October 23, 2011, 2:45am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/114 "2011-10-23T02:45:50Z")
> [@](#): > > Has the military raised any objections to be it being considered ‘free speech’? I would think they would have a vested interest in not allowing Joe Schmoe to dress up like an Army Officer and go around presenting himself as one. I’m in favor of upholding the law, but I don’t see how it’s any of the military’s business to determine what is or is not free speech. Several veterans’ groups have supported the law, though. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [October 23, 2011, 3:03am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/115 "2011-10-23T03:03:40Z")
Just curious. How far does this act go? Let’s say that I am sitting in a bar chatting some hottie up and I throw in a line about how I just got back from Afghanistan and it was great to be home. A violation? ---
**Author:** ![Chimera](https://avatars.discourse-cdn.com/v4/letter/c/8e8cbc/32.png) [@Chimera](https://boards.straightdope.com/u/Chimera)\ **Post date:** [October 23, 2011, 3:32am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/116 "2011-10-23T03:32:24Z")
> [@Really\_Not\_All\_That\_Bright](#): > > I’m in favor of upholding the law, but I don’t see how it’s any of the military’s business to determine what is or is not free speech. “Hey, if this is ‘free speech’ then we have some security issues” might be one way that it is their business. ---
**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:** [October 23, 2011, 3:42am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/117 "2011-10-23T03:42:24Z")
> [@Elendil\_s\_Heir](#): > > I said nothing of the kind. But it’s essentially what will happen. They’ll make illegal something that does no harm except make some people angry or upset. Which makes it different, in important and substantial ways, from all the other curbs on free expression that you list. Not law; politics. ---
**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:** [October 23, 2011, 4:21am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/118 "2011-10-23T04:21:30Z")
> [@mhendo](#): > > But it’s essentially what will happen. They’ll make illegal something that does no harm except make some people angry or upset. Which makes it different, in important and substantial ways, from all the other curbs on free expression that you list. Not law; politics. Beyond making some people angry and upset, it also makes it difficult to identify people we, as a society, have determined it shouldn’t be difficult to identify. [QUOTE=Chimera] “Hey, if this is ‘free speech’ then we have some security issues” might be one way that it is their business. [/QUOTE] I don’t really understand what you’re saying here. ---
**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:** [October 23, 2011, 4:30am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/119 "2011-10-23T04:30:48Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Beyond making some people angry and upset, it also makes it difficult to identify people we, as a society, have determined it shouldn’t be difficult to identify. What a ridiculous argument. Possibly the least compelling, most stupid single thing i’ve seen written in defense of the law. Kudos to you. ---
**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:** [October 23, 2011, 4:41am UTC](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721/120 "2011-10-23T04:41:32Z")
While ordinarily I might take exception to that, I’m sure you’ll excuse me if I don’t give a shit, since that came from you. [Previous page](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721.md?page=5) [Next page](https://boards.straightdope.com/t/stolen-valor-act-ruled-unconstitutional/550721.md?page=7)