Cowardly Lyin’: Is Lying About Being a "War Hero" a Crime? The Power of Free Speech Under the First Amendment

“Ten hut! There’s an officer on deck!” With these words towards the end of the film A Few Good Men, Tom Cruise is saluted as a hero by the men whom he successfully defended in a court-martial.  

But what about those who merely pretend–and there are a multitude–to be heroes and officers? An upcoming case in the U.S. Supreme Court will shed light on a very unusual criminal law called “The Stolen Valor Act.”  

Like previous controversial cases about flag-burning, abortion protests and pornography, US v Alvarez presents us with a key question: “Can mere words ever be a crime?” It’s a classic case of Free Speech versus defenders of an ideology–in this case patriotism and honoring war heroes. 

“The Stolen Valor Act” (Title 18 U.S. Code Sec. 704) was enacted by Congress in 2005 and makes it a federal crime for persons to falsely claim that one has received a military medal or decoration; it provides for a fine or prison up to six months for conviction. The prison term can be lengthened to a maximum of one year if the lie involves the Congressional Medal of Honor, the Navy Cross, the Air Force Cross, the Silver Star, a Purple Heart, or a Distinguished Service Cross.

The precise issue in Alvarez is whether a lie, without any other factor, can be banned without violating the First Amendment.   

In July 2007, Xavier Alvarez of Pomona, CA, was an elected member of a local county water board. Mr. Alvarez introduced himself as a “retired Marine” who had been wounded many times, and had won the Medal of Honor. None of those claims was true; in fact, Alvarez had never served in the U.S. military.

Alvarez thus became the first person ever charged with violating “The Stolen Valor Act”–he pled guilty, but kept his right to appeal the law under the First Amendment. 

One court has already ruled that the Act is unconstitutional, saying that speech–even false speech (that doesn’t defame)–is protected: "If this Act is constitutional ... then there would be no constitutional bar to criminalizing lying about one's height, weight, age or financial status on Match.com or Facebook, or falsely representing to one's mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is that most people lie about some aspect of their lives from time to time.”  

In other words, talking about oneself “is precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tall tales,” the 9th Circuit Court said. Indeed, Mr. Alvarez himself admitted being a “chronic liar, embellisher, a phony.”

The U.S. government is asking the court to uphold the law, saying lower courts were wrong to apply a “strict scrutiny” test as opposed to whether society, the government, the public, and the military have any mere “rational interest” in having such a law on the books. The government says the law includes the legality of mailing and shipping of medals, and “protects” the reputation and significance of military heroism medals. Under the Act, it’s also illegal for unauthorized persons to wear, buy, sell, barter, trade, or manufacture “any decoration or medal authorized by Congress for the armed forces of the United States,” or any of the service medals or badges awarded to the members of such forces.

The Act was likely passed to address the issue of persons claiming to have been awarded military awards for which they were not entitled, and exploiting their deception for personal gain. For example, as of June 2006, there were only 120 living Medal of Honor recipients, but there were far more known imposters. There are also large numbers of people fraudulently claiming to be Navy Seals and Army Special Forces.

The U.S. Supreme Court will hear oral arguments from lawyers for the government and for Mr. Alvarez in Washington, D.C., next Wednesday, Feb. 22, 2012.

(Richard G. Marcil www.MarcilAttorney.com 586-412-0444 is an attorney in Clinton Township practicing in divorce, criminal defense, civil rights, and personal injury cases, as well as juvenile, Probate, real estate and business litigation.)