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551 the Stolen Valor Act: Why It Should Be Revised To LUMPKIN.FORMATTED (DO NOT DELETE) 5/16/2012 1:32 PM THE STOLEN VALOR ACT: WHY IT SHOULD BE REVISED TO BETTER PROTECT THE HONOR OF OUR ARMED FORCES Robert Lumpkin INTRODUCTION On November 9, 2009, the line between a liar and a criminal was put to the test.1 Xavier Alvarez (Alvarez), a man fond of tall tales, told a story that led to his arrest. If you listened to Alvarez he would tell you heroic tales from when he was a helicopter pilot in Vietnam, or a police officer, or even about his stint as a hockey player for the Detroit Red Wings.2 He might even tell you about his former wife, a famous Mexican actress to whom he was secretly married.3 While none of these stories were true, Alvarez could not face criminal liability for telling them.4 On the other hand, when Alvarez lied about receiving a Congressional Medal of Honor, he was indicted on two counts of violating the Stolen Valor Act (the Act).5 In 2007, Alvarez won a seat on the Three Valley Water District Board of Directors in Southern California.6 In July of that year at a water board meeting, Alvarez made the statement: “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”7 Alvarez has never been in the United States Armed Forces nor has he won the Congressional Medal of Honor.8 After the FBI acquired a recording of Alvarez’s false 9 statements, he was indicted in the Central District Court of 1. United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010). 2. Id. 3. Id. 4. Id. 5. Stolen Valor Act of 2005, 18 U.S.C.§ 704 (b) (2006). 6. Alvarez, 617 F.3d at 1201. 7. Id. at 1200. 8. Id. at 1201. 9. The summer before Alvarez was elected to the water board, a woman reported 551 LUMPKIN.FORMATTED (DO NOT DELETE) 5/16/2012 1:32 PM 552 Loyola Journal of Public Interest Law [Vol. 13 California for “falsely represent[ing] verbally that he had been awarded the Congressional Medal of Honor when, in truth and as [he] knew, he had not received the Congressional Medal of Honor” in violation of the Stolen Valor Act.10 He was the first person charged and convicted under the current version11 of the Act.12 The Ninth Circuit Court of Appeals overturned his conviction on First Amendment grounds.13 The Act provides in pertinent part: (b) False claims about receipt of military decorations or medals: Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.14 Accordingly, the Act criminalizes false verbal or written representations regarding receipt of military awards.15 It does not require that someone is harmed by these false representations or that another person relied on them, but only that such representations were made.16 While the Act serves desired ends, Alvarez to the FBI for telling lies about his military past. However, the record does not indicate how the FBI obtained a recording of the false statements made at the water board meeting. Id. at 1201. 10. Id. 11. Before the Stolen Valor Act of 2005 was created, legislation existed that criminalized the wearing, manufacture, or sale of unauthorized military awards. The earlier law in pertinent part follows: (a) In general.—Whoever knowingly wears, manufactures, or sells 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, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both. 18 U.S.C. § 704(a)(2006). 12. Alvarez, 617 F.3d at 1201. 13. Id. 14. 8 U.S.C. § 704 (b). 15. Id. 16. Id. LUMPKIN.FORMATTED (DO NOT DELETE) 5/16/2012 1:32 PM 2012] The Stolen Valor Act 553 protecting the honor and morale of American troops, the means violate the First Amendment because the Act was not written in conformity with constitutional requirements. Therefore, Congress should revise the Act so that it can serve its desired purpose in agreement with the First Amendment. On appeal of the Alvarez case, the Ninth Circuit found the Act unconstitutional.17 However, out of respect to the legislative process, the court refused to rewrite the statute or enumerate how the legislature should do so.18 This article will attempt to do exactly that. Through an analysis of Alvarez and other relevant cases, this article will explain why the statute is unconstitutional and will make the necessary revisions for the Act to conform to First Amendment standards. Part I of this article will describe the legislative history and intent behind the Act. Part II will show that the Act is constitutionally invalid as a content-based restriction on speech. This section will also explain why the Act is subject to strict scrutiny review and will demonstrate where the Act falls short under the strict scrutiny test. Part III will argue that false factual speech is worthy of First Amendment protection. Part IV will explain how the Roberts Court has consistently protected free speech. Finally, Part V will offer a revision of the Act. PART I. THE LEGISLATIVE INTENT BEHIND THE ACT Vietnam Veteran, Representative John T. Salazar (R. Colorado), introduced the Act as a bill in 2005 and Congress enacted it in 2006.19 Salazar wrote the bill at the urging of a Colorado State University Student, Pam Sterner.20 Sterner, who was a staffer for Salazar, wrote a paper for school that argued for broader laws concerning false claims of military honors.21 At the time only the false wearing of a war medal was prohibited.22 The 17. Alvarez, 617 F.3d at 1199. 18. See id. at 1217. 19. See Peter Roper, High Court Will Settle Stolen Valor Fight, CHIEFTAIN, (Oct. 18, 2011), http://www.chieftain.com/news/local/high-court-will-settle-stolen-valor fight/article4ee6151a-f942-11e0-b713-001cc4c002e0.html [hereinafter High Court]; James Dao, Stolen Valor Act Is Declared Unconstitutional by Circuit Court, N.Y. TIMES, (Aug. 8, 2010), http://atwar.blogs.nytimes.com/2010/08/18/stolen-valor-act-is- declared-unconstitutional-by-circuit-court/. 20. Id. 21. Id. 22. Anne C. Mulkern, Rep. Salazar’s Bill on Falsely Claiming Medals Now a Law, LUMPKIN.FORMATTED (DO NOT DELETE) 5/16/2012 1:32 PM 554 Loyola Journal of Public Interest Law [Vol. 13 student’s paper persuaded Salazar to draft the bill.23 Before the Act became law, Salazar acted as a whistle blower on those who falsely claimed to have received military awards and decorations.24 The politician even affected advertising for the Hollywood blockbuster, “Wedding Crashers.”25 In the film, the protagonists played by Vince Vaughn and Owen Wilson discussed using fake Purple Heart medals to pick up women.26 The website for the movie included fake cut-out Purples Hearts that fans of the movie could print out and use in their own wedding crashing endeavors.27 Salazar was outraged and urged the production company to end the advertising campaign.28 After the company removed the material from its website Salazar stated: If any movie-goers take the advice of the ‘Wedding Crashers’ and try to use fake Purple Hearts to get girls, they may wind up picking up an FBI agent instead I am pleased that New Line Cinema has agreed to take down offensive parts of the Web site. Our veterans and FBI agents are working hard to make sure that we honor our true heroes, no one should undermine their efforts.”29 An examination of the legislative history behind the Act shows that in its current form, it covers a broader range of speech than the legislature likely intended.30 The legislative history behind the Act demonstrates that Congress intended for the Act to prevent fraud by those who falsely claim to have received military awards.31 However, the Act in its current form covers all lies regarding receipt of military honors, including statements that the listener did not believe, rely upon, or that did not cause THE DENVER POST (Dec. 21, 2006), http://www.denverpost.com/nationworld/ci_48762 10. 23. Id. 24. Purple Hearts Pulled from ‘Crashers’ Site, TODAY, http://today.msnbc.msn. com/id/8701080/ns/today-entertainment/(last visited Feb. 15, 2012). 25. Id. 26. Id. 27. Id. 28. Id. 29. Id. 30. Stolen Valor Act of 2005, Pub. L. No. 109-437, § 2, 120 Stat. 3267 (2006) (codified as amended at 18 U.S.C. § 704 (2006)). 31. Id. LUMPKIN.FORMATTED (DO NOT DELETE) 5/16/2012 1:32 PM 2012] The Stolen Valor Act 555 any harm to the listener.32 When drafting the Act Congress found that: “Fraudulent claims surrounding the receipt of. decorations and medals awarded by the President or the Armed Forces of the United States damage the reputation and meaning of such decorations and medals.”33 The use of the term “fraud,” while referring to the crime that the Act was intended to prevent, was not accidental or limited to this single statement.
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