Yesterday, we introduced you to PFC Hamilton, who was convicted of theft of benefits from the Veterans Affairs and of wearing medals and ranks not issued to him. Today, we discuss the constitutionality of the Stolen Valor Act.
In 2010, Hamilton posed as a Colonel, in full dress blues, with two Navy Crosses, four Silver Stars, one Bronze Star, and seven Purple Hearts, while giving a speech at a Vietnam Veterans' Recognition Ceremony. This was his fourth known attempt to display a rank or insignia not awarded to him.
Though his case proceeded in parallel with Alvarez, with the SCOTUS arguments and decision released during briefing and oral arguments for Hamilton's case, the court was able to consider and differentiate between the two cases.
Alvarez dealt with the conflict between free speech and a statute meant to protect the accomplishments of true heroes. While we may not agree with false boasts of heroism, such verbal speech is generally protected, and in this case, specifically protected, as the court felt that the provision used to convict Alvarez was an "overbroad" restriction on free speech. Efforts are underway to fix the issue by adding "for monetary gain" language.
Hamilton's actions were not verbal. They were physical. While the Fourth Circuit could not decide whether this form of expressive speech was subject to O'Brien's "relatively lenient" standard or strict "most exacting" scrutiny, they held that the law survives under either, so long as the law is constructed in a constitutionally-appropriate manner.
What does that mean? The law prohibits wearing medals that are not one's own. This could lead to children, Halloween revelers, and actors all imprisoned. Some might object to that.
Instead, the law has to be interpreted in a narrower manner than drafted. The Ninth Circuit handled a similar case and implied an "intent to deceive". The Fourth Circuit adopted their logic, and the scienter requirement, because it was not contrary to the intent of Congress.
The government's interest in protecting prestige and the accomplishments of soldiers, in upholding the chain of command, and in fighting the black market for medals is compelling, to us, to the Fourth and Ninth Circuits, and to SCOTUS.
But is the statute narrowly tailored? Alvarez overturned the speech statute because a database of true heroes could be put online and because the remedy for false speech is more speech.
Speech is less convincing than a medal on the chest, however. A person is more easily deceived, and a liar more easily believed, when physical evidence is provided. Seeing is believing, after all.
In addition, Alvarez was only lying about the Medal of Honor. Hamilton lied about a number of medals and ranks that were not his. A database to prove his deception might require every rank, award, and commendation received by every soldier who ever served - a much taller task than disproving a verbal boast of a Medal of Honor.
- United States v. Hamilton (Fourth Circuit Court of Appeals)
- Can Congress Criminalize Trading on Stolen Valor? (FindLaw's Supreme Court Blog)
- House Passes New Stolen Valor Act: Is it Constitutional? (FindLaw's Supreme Court Blog)