The Stolen Valor Conundrum: How to Honor the Military While Protecting Free Speech

Beth F. Lloyd-Jones
I. INTRODUCTION Members of the United States military serve our citizens throughout the world every day, risking their lives for the nations safety.1 It is only fitting that after incredible displays of bravery and selflessness, they are bestowed with honors upon their return. These individuals can receive awards such as the Bronze Star,2 the Navy Cross,3 and the Purple Heart.4 The most
1. See U.S. DEPT OF DEF., Where We Serve: Information About Defense Department Installations, http://www.defense.gov/faq/pis/sites.html (last visited Nov. 20, 2011). 2. U.S. DEPT OF ARMY, REG. 600-8-2, MILITARY AWARDS 41 (Dec. 11, 2006), available at http://armypubs.army.mil/epubs/pdf/R600_8_22.pdf.

The Bronze Star Medal is awarded to any person who, while serving in any capacity in or with the Army of the United States after 6 December 1941, distinguished himself or herself by heroic or meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy; or while engaged in military operations involving conflict with an opposing armed force in which the United States is not a belligerent party. Id. Service members must be receiving imminent danger pay to qualify for the Bronze Star Medal. Id. (citing 10 U.S.C. 1133). 3. U.S. DEPT OF THE NAVY, SECNAVIST 1650.1H, NAVY AND MARINE CORPS AWARDS MANUAL 2-22 (Aug. 22, 2006), available at http://awards.navy.mil/awards/web doc01.nsf/%28vwDocsByID%29/DL060927142728/$file/1650.1H.pdf. [The Navy Cross is] awarded to individuals who, while serving in any capacity with the Navy or Marine Corps, distinguish themselves by extraordinary heroism . . . performed in the presence of great danger, or at great personal risk, and . . . performed in such a manner as to set individuals apart from their shipmates or fellow Marines. An accumulation of minor acts of heroism normally does not justify the award. Id.
4. U.S. DEPT OF ARMY, supra note 2, at 20. The Purple Heart is awarded to members of the Armed Forces of the United States who, while serving under component

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prestigious award is the Congressional Medal of Honor, which is earned by going beyond the call of duty,5 but what if someone lies about receiving such an award? Such lies have been used to gain the attention of women,6 to help an individual gain recognition,7 and used as part of financial fraud.8 The First Amendment guarantees a right to free speech: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . . .9 Does this mean, however, that individuals have a right to lie about receiving military honors and subsequently benefitting from the prestige of our countrys highest honors? Despite the immorality of these situations, some courts have upheld the criminalization of such speech,10 while other courts have declared that a restriction on these lies would be unconstitutional because the existing statute was not narrowly tailored to a compelling governmental interest.11 In 2005, Congress, with the support of several military organizations,12 proposed a bill criminalizing an individuals false claim of being awarded various military honors: The Stolen Valor Act.13 The Act criminalizes not only the possession or display of unearned military medals, but also false representations of having been awarded any decoration or medal.14 As a result, some courts have held the Stolen Valor Act to be unconstitutional because a mere verbal claim to an honor cannot be criminalized under the First Amendment.15 The Ninth Circuit agrees and has found the Stolen
authority in any capacity with one of the U.S. Armed Services after 5 April 1917, has been wounded or killed, or who has died or may hereafter die after being wounded. Id. 5. See id. at 39. The deed performed must have been one of personal bravery or self-sacrifice so conspicuous as to clearly distinguish the individual above his comrades and must have involved risk of life. Id. 6. Annie Karni, Man Uses Dead Army Heros Photo to Woo Women Online, N.Y. POST, http://www.nypost.com/p/news/national/facebook_seducer_faux_gi_joe_jCgs YyHygvygXOIyFQF7QO. 7. See United States v. Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010). Lying allowed Alvarez to win a place on the Three Valley Water District Board of Directors. Id. 8. See Stolen Valor Act, 152 CONG. REC. at H8820 (statement of Rep. Sensenbrenner). 9. U.S. CONST. amend. I (emphasis added). 10. See United States v. Robbins, 759 F. Supp. 2d 815, 817 (W.D. Va. 2011). 11. See Alvarez, 617 F.3d at 1200; United States v. Strandlof, 746 F. Supp. 2d 1183, 1185 (D. Colo. 2010). 12. 152 CONG. REC. H8819, H8820 (daily ed. Dec. 6, 2006) (statement of Rep. Conyers). The bill was supported by military groups, the Veterans of Foreign Wars, the Military Order of the Purple Heart and the FBI Agents Association. Id. 13. See id. at H8819-23. 14. See Stolen Valor Act of 2005, 18 U.S.C. 704 (2006). 15. See Strandlof, 746 F. Supp. 2d at 1185.

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Valor Act unconstitutional, claiming that the government is reaching too far into the private lives of citizens.16 However, other courts found the Stolen Valor Act to be constitutional because false statements of fact about military awards are not protected under the First Amendment.17 This Note will argue that the Stolen Valor Act, despite its morality, is unconstitutional under the First Amendment in regards to its limitations on verbal declarations and will propose that those who falsely claim to have received military honors should be prosecuted under new fraud legislation. Part II of this Note will discuss the history of the Stolen Valor Act and analyze congressional intent for its enactment. Part III will analyze the First Amendment and its protection of the right to free speech. Part IV will then discuss the morality of declaring the Stolen Valor Act unconstitutional. Part V will reconcile constitutionality with morality, by proposing a solution under the legal label of fraud as well as urging the government creation of an internet database. Finally, Part VI will conclude with predictions regarding the future of the Stolen Valor Act. II. THE STOLEN VALOR ACT: HISTORICAL ORIGINS The Senate proposed the Stolen Valor Act in response to a growing problem of medal imposters. In one example, a marine sergeant was able to obtain $66 million in military security contracts through tales of his military decorations.18 He told false stories of serving in Panama and Somalia and receiving the Silver Star, Purple Heart, Bronze Star, and other Air Medals, awards he never actually received.19 Representative Jim Sensenbrenner of Wisconsin noted that although there were only 124 living Medal of Honor recipients in 2005, more than twice that number claimed to have earned it.20 In its findings, Congress articulated that these fraudulent claims damage the reputation and meaning of such decorations and medals.21 At that time, as Congress stated, the federal government did not have adequate authority to prosecute imposters and legislation was needed to resolve the problem.22 In the debate in the House of Representatives, the members noted the devaluation of the medals by labeling individuals who falsely claimed to have earned military awards phony war heroes.23 Congressman John
16. 17. 18. 19. 20. 21. 22. 23.

See Alvarez, 617 F.3d at 1204, 1218. Robbins, 759 F. Supp. 2d at 817. Stolen Valor Act, 152 CONG. REC. at H8820 (statement of Rep. Sensenbrenner). Id. Id. Id. at 8819 (findings). Id. See id. (Rep. Salazar recognizing these liars as phonies).

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Conyers Jr., a Representative from Michigan, further described the importance of protecting military honors because they symbolize overcoming an instinctual desire for self-preservation found in all of us and summoning a level of courage rarely found but highly coveted.24 Congress desired to protect military members from the phonies who have fraudulently benefited by becoming subjects of documentaries and publishing best-selling biographies from their false claims.25 The Stolen Valor Act was subsequently passed by Congress and later signed into law by President George W. Bush on December 20, 2006.26 Today, the Stolen Valor Act reads, in part:
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.27

The Act, therefore, criminalizes not only the possession or display of military medals, but also false claims of possession. The problem of military imposters has not disappeared. A study by the Chicago Tribune in 2008 found that more than half of the claims to medals were unsupported by military records.28 For example, an investigation into Whos Who and related obituaries uncovered false claims to 84 bogus
24.

Id. at H8820-21 (daily ed. Dec. 6, 2006) (providing a statement of Rep. Kline).

But even for those who did not serve, these decorations and awards have a deeper meaning and value that far outweigh their monetary worth. In many instances, they symbolize overcoming an instinctual desire for self-preservation found in all of us and summoning a level of courage rarely found but highly coveted. . . . It is for this reason that some see to bestow on themselves the symbols of honor and sacrifice earned by others. Regardless of their rationale, those that impersonate combat heroes dishonor the true recipients of such awards. Id. Id. at H8821 (describing how men have profited from these false statements). The Stolen Valor Act of 2005, Pub. L. No. 109-437, 120 Stat. 3266, 3266 (2006) (codified at 18 U.S.C. 704(b) (2006)). 27. Id. 28. See John Crewdson, False Courage: Tribune Investigation Reveals Hundreds of Unsupported Claims Regarding War Medals, CHI. TRIB., Oct. 26, 2008, http://articles.chicagotribune.com/2008-10-26/news/0810260066_1_congressional-medalstolen-valor-act-war-related-illnesses (In all, more than half the medals for bravery examined, including the exalted Medal of Honor, are unsupported by official military records obtained by the Tribune from federal archives under the Freedom of Information Act.).
25. 26.

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Medals of Honor, 119 Distinguished Service Crosses, 99 Navy Crosses, [5] Air Force Crosses and 96 Silver Stars.29 The individuals reasons for their false claims ranged from self-gratification to impressing family members.30 Punishment under the Stolen Valor Act has mostly resulted in a sentence of community service, probation, or fines.31 In some cases, however, individuals have been sentenced up to six months in prison.32 The maximum punishment of one year has been reserved for times when an individuals claims or actions involve false claims to the Medal of Honor or another top medal.33 However, as of 2008, the Stolen Valor Act had only led to forty prosecutions, leaving many false claims untouched.34 Even more telling is that this legislation is being challenged. A Ninth Circuit three-judge panel declared the Stolen Valor Act unconstitutional.35 The defense then asked the entire court to review the decision en banc, but the appeal was denied.36 In Colorado, a district court also found the Stolen Valor Act unconstitutional; the Government has appealed.37 On the other hand, a district court in Virginia held the Act constitutional, finding that false speech has not been and should not be afforded First Amendment protection.38 This current issue is becoming a hot topic as individuals charged under the Stolen Valor Act are claiming that they have a right to free speech, including the right to embellish their past,39 but does the First Amendment protect this type of speech?

Id. Id. Id. Id. For example, a Missouri man was sentenced to 6 months in federal prison for having lied when he claimed to be a Marine captain who earned the Navy Cross and a Purple Heart under fire in Iraq, and a reserve Army major was sentenced to 5 months in prison by a federal court in Utah for having claimed a Silver Star he did not earn in hopes of hastening a promotion. Id. 33. Farid Sharaby, Chapter 93: Expanding the Stolen Valor Act Within California, 41 MCGEORGE L. REV. 619, 621 (2010). 34. Crewdson, supra note 28. 35. Alvarez, 617 F.3d at 1218. 36. Id., en banc denied, No. 0850345, 638 F. 3d. 666, 666 (9th Cir. 2011); see Dan Elliott, Lawyers Say Lying About Being a Decorated Veteran is Free Speech, DENVER POST, Feb. 12, 2011, http://www.denverpost. com/news/ci_17366672. 37. Strandlof, 746 F. Supp. 2d at 1185; see Elliott, supra note 36. 38. See Robbins, 759 F. Supp. 2d at 817. 39. See, e.g., Strandlof, 746 F. Supp. 2d at 1185.

29. 30. 31. 32.

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The First Amendment gives the American people a right to freedom of speech.40 The purpose of the First Amendment has been articulated as foreclos[ing] public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. To this end, the government even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners.41 A. The Stolen Valor Act is Not Narrowly Tailored Under First Amendment case law, if a challenge to a statute or government regulation is content-based, there is a presumption against constitutional validity,42 and the government bears the burden of demonstrating that the restriction imposed is narrowly tailored or that it targets and eliminates no more than the exact source of evil it seeks to remedy.43 The government cannot limit speech without a demonstration that the restriction is justified.44 The findings of Congress, as articulated during the proposal and debate of the Stolen Valor Act, state that the false claims of ownership to military awards damage the reputation and meaning of such decorations and medals, and federal law enforcement has previously been limited in its resources to prosecute such liars.45 It was proposed that this legislation is the necessary solution.46 Yet, it is not narrowly tailored under a strict scrutiny analysis.47 Further reasoning is needed beyond the fact that statements violating the Stolen Valor Act are lies and damaging to an individuals reputation. The congressional intent was to prevent lies that would devalue the military, but even this lofty goal could harm particular viewpoints. Under the statute, as it currently stands, even a political satire in which one pretends to have obtained a medal has the potential to be under investigation. As the defense argues in United States v. Alvarez, the Stolen Valor Act is overbroad and would even apply to a person who claimed he
U.S. CONST. amend. I. Id. See United States v. Perelman, 737 F. Supp. 2d 1221, 1233 (D. Nev. 2010). Frisby v. Schutz, 487 U.S. 474, 485 (1988). See id.; Wygant v. Jackson Bd. of Edu., 476 U.S. 267, 280 n.6 (1986). 152 CONG. REC. S9215 (daily ed. Sept. 7, 2006) (providing a statement of the Presiding Officer). 46. Id. 47. See Wygant, 476 U.S. at 280 (Under strict scrutiny the means chosen to accomplish the States asserted purpose must be specifically and narrowly framed to accomplish that purpose.).
40. 41. 42. 43. 44. 45.

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had received a military decoration while playing a role in a play or movie,48 even though courts protect satire and non-literal commentary as a part of social discourse.49 In doing so the courts provide assurance that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole.50 Furthermore, the First Amendment protects claims that cannot reasonably [be] interpreted as stating actual facts about a person.51 However, these protections are not evident in the Stolen Valor Act; it simply criminalizes statements of phony war heroes that should not be believed. The Supreme Court requires that over-breadth not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep52 in order to challenge a statutes legitimacy. The sweep of the law is immense, requiring neither malice, intent, knowledge, nor actual harm.53 The over-breadth of the Stolen Valor Act is particularly highlighted by the fact that there is no mens rea requirement.54 The government offers no reason for this exception to the scienter requirement that is recognized as a principle of criminal law.55 Strict liability legislation is necessary to regulate public safety.56 However, there is no congressional intent to protect the public through the Stolen Valor Act; instead, it is the militarys reputation that is the focus of the legislation.57 The only reputation at stake is that created by and originating in a government institution. In fact, Congress intends to protect the reputation of military decorations and medals, not an individual or society, but an institution.58 The mens rea requirement is not necessary for minor crimes,59 but here there are significant punishments if the violator is found guilty.60 Violating the Stolen Valor Act can be a Class A misdemeanor leading to jail time, probation, or a fine.61 Due to the lack
Brief for Petitioner at 18-19, Alvarez, 617 F.3d 1198 (No. 08-50345). See Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005) (citing Levinshkys, Inc. v. Wal-Mart Stores, Inc. 127 F.3d 122, 128 (1st Cir. 1997)). 50. Id. (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990)). 51. Id. 52. Broaderick v. Oklahoma, 413 U.S. 601, 615 (1973). 53. See The Stolen Valor Act of 2005, 18 U.S.C. 704(b) (2006)). 54. See id. 55. See, e.g., Morissette v. United States, 342 U.S. 246, 250-52 (1952); Dennis v. United States, 341 U.S. 494, 500 (1951). 56. See Morissette, 342 U.S. at 255-59. 57. See 704(b). 58. Id. 59. See Staples v. United States, 511 U.S. 600, 616-17 (1994). 60. See id. at 616. 61. See 704(c)(1).
48. 49.

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of a mens rea requirement, there should not be such a significant punishment. Furthermore, there is no evidence of congressional intent to specifically exclude the scienter requirement.62 Lack of a mens rea requirement within the statute is not dispositive.63 Meeting no exception to the mens rea requirement,64 the Stolen Valor Act is overbroad. As the Supreme Court is reluctant to allow prohibitions on free speech for strict liability crimes,65 the government should not be allowed to limit such false statements of fact without a narrowly tailored purpose or a mens rea requirement. Congress should not limit such speech for fear of creating a slippery slope of intrusion into private life and regulation of speech. B. Rejection of a First Amendment Free Zone In Stolen Valor Act cases, the government has argued that a right to false statements is not protected by the First Amendment because [p]etty lies . . . do not promote the uninhibited marketplace of ideas and therefore are not protected by the First Amendment.66 Such false statements are utterances that are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.67 However, the Supreme Court has not allowed the government to create a First Amendment Free Zone.68 In fact, as noted in United States v. Strandlof, the Supreme Court has previously rejected the Governments encouragement of a free-floating test upholding constitutionality of legislation when the freedom of speech is outweighed by its cost to society:
They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of

62. See generally 152 CONG. REC. H8819, H8820 (daily ed. Dec. 6, 2006) (lacking discussion of a mens rea requirement). 63. See United States v. U.S. Gypson Co., 438 U.S. 422, 438 (1978) ([F]ar more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.). 64. See Staples, 511 U.S. at 616-18 (1994) (describing that a strict liability statute should contain lower penalties and should not do damage to an individuals reputation). 65. See United States v. X-Citement Video, 513 U.S. 64, 71 (1994); Smith v. California, 361 U.S. 147, 150-54 (1959). 66. Strandlof, 746 F. Supp. 2d at 1186 (quoting Amended Governments Supplemental Brief at 10, filed Jan. 11, 2010). 67. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). 68. Strandlof, 746 F. Supp. 2d at 1187 (quoting United States v. Stevens, 130 S. Ct. 1577, 1585 (2010)).

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costs and benefits is in a statutes favor.69

In this case, the Supreme Court declared the Depiction of Animal Cruelty Act unconstitutional as it criminalized the creation, sale, or possession of depictions of animal cruelty holding that it is not enough that this type of speech lack[s] expressive value.70 Extending this reasoning, courts should find the Stolen Valor Act unconstitutional because even though there is no expressive value in speaking a lie for ones own personal gain, society is not harmed enough to warrant the criminalization of this type of speech. Furthermore, intent surrounding the creation of the Stolen Valor Act is not meant to protect society as much as it is intended to protect the reputation of government organizations like the military. This balancing of protections, therefore, seems to be a moot point as the only interests at stake are those of the government and military; the individuals interest or societys interest is not as strong, regardless of the morally reprehensible actions by individuals. Instead, the protection of a symbolic interest is at play.71 Previous laws enacted to protect similar symbolic interests have been declared unconstitutional.72 In Texas v. Johnson, the Supreme Court declared a law prohibiting flag-burning unconstitutional.73 Texas argued that its interest was preserving the flag as a symbol of nationhood and national unity.74 However, the Court ruled states cannot limit speech surrounding such symbols of national unity: To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernable or defensible boundaries.75 This line of reasoning was also used to decide that the governments interest in protecting the Smokey the Bear icon for fire prevention purposes was not a sufficient reason to uphold content-based regulation of free speech.76
Stevens, 130 S. Ct. at 1586. Id. at 1585-86. See, e.g., RUSSELL L. WEAVER, ET AL., FIRST AMENDMENT: CASES, PROBLEMS, AND MATERIALS 2010 SUPPLEMENT 27 (2d ed. 2010) (describing the Stolen Valor Act as a hypothetical case problem). 72. See Lighthawk v. Robertson, 812 F. Supp. 1095, 1096, 1101-02 (W.D. Wash. 1993) (The Forest Service interest in protecting Smokey Bear to aid this effort are certainly important, but are not compelling in the context of First Amendment rights.); Texas v. Johnson, 491 U.S. 397, 417 (1989). 73. See Johnson, 491 U.S. at 397. 74. Id. at 413. 75. Id. at 417. 76. Lighthawk, 812 F. Supp. at 1101-02 (reading the statute as intended to protect the interest in government property).
69. 70. 71.

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Similarly, the Stolen Valor Act is protecting the governments interest in its own institution. In fact, Congress was seeking to protect the reputation of symbolic items, specifically the military decorations and medals through the passage of the Stolen Valor Act.77 However, as stated in Johnson, to allow a governmental restriction on the use of government symbols is an unconstitutional content-based restriction.78 Declaring some national symbols as protected and some not protected would force judicial opinions, and therefore force speech upon citizens.79 Civilian Americans would be forced to recognize the governments interpretation of the military awards. Instead of interpreting for themselves the value of the military valor demonstrated by our heroes from service stories, Americans must recognize each medal as a government symbol of heroism. A forced prescription of speech on the people for this symbolic protection of heroism is not a sufficient government interest.80 Additionally, every case of a false statement does not meet the requirements of core First Amendment values; [i]n nearly every case, an isolated demonstrably false statement will be outweighed by the perceived harm the lie inflicts on the truth-seeking function of the marketplace of ideas.81 The governments argument under this balancing test would, therefore, almost always be successful.82 However, this is precisely the free zone the Supreme Court was trying to prevent.83 It is not enough to solely balance the societal costs and benefits when analyzing the constitutionality of false speech. Further analysis must be taken.

See The Stolen Valor Act 704(b). See Johnson, 491 U.S. at 420. Id. at 417 ([H]ow would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do.). 80. See U.S. v. OBrien, 391 U.S. 367, 377 (1968) (articulating the test for symbolic speech: [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.). OBrien held constitutional a law allowing the government to punish an individual for burning his draft card as it furthered the power of Congress to raise and support armies and burning the draft card would hinder the power. Id. This draft card law did not focus on the content of the speech, but rather the purposes of the draft, unlike the Stolen Valor Act. Id. 81. Alvarez, 617 F.3d at 1204. 82. Id. 83. See Stevens, 130 S.Ct. at 1585 (describing the balancing test proposed by the Government as startling and dangerous).
77. 78. 79.

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C. Lies Should be Characterized as Speech that Matters The Supreme Court has recognized specific categories of speech that are not awarded First Amendment protection. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.84 Some courts have attempted to recognize false statements of fact as an unprotected category of speech,85 citing to the Supreme Court decision of Gertz v. Robert Welch which stated there is no constitutional value in false statements of fact.86 Following this reasoning, the United States v. Robbins court found that these lies about oneself are not a part of speech that matters and are, therefore, not afforded the protection of the First Amendment.87 However, the unprotected category of speech is too narrow of an interpretation of case law. Justice Stevens has proposed that the courts declaration that false statements of fact are unprotected is overbroad.88 In fact, the quoted language in Gertz has been held to be just a statement of dicta.89 Gertz was a defamation case focused on the intentional malice standard when a newspaper claimed that the plaintiff was a communist.90 Supreme Court decisions have recognized no First Amendment protection for knowing falsehoods in libel and defamation cases in order to prevent injury to the reputation of an individual.91 A defamation case requires that the false statement is the proximate cause of an irreparable harm to anothers reputation.92 The Court has also held that there is no constitutional protection for false statements made about public figures with actual malice, regardless of defamation.93 However, all of these decisions have
Chaplinsky, 315 U.S. at 572. See Robbins, 759 F. Supp. 2d at 817; Alvarez, 617 F.3d at 1218 (Bybee, J., dissenting). 86. Robbins, 759 F. Supp. 2d at 818 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40 (1974)). Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. The First Amendment requires that we protect some falsehood in order to protect speech that matters. Id. 87. Id. at 819-21. 88. Nike, Inc. v. Kasky, 539 U.S. 654, 664 (2003) (Stevens, J., concurring). 89. Mikovich, 497 U.S. at 19. 90. Gertz, 418 U.S. at 326-27. 91. See Rickert v. Pub. Disclosure Commn, 168 P.3d 826, 829-30 n.7 (Wash. 2007). 92. Alvarez, 617 F.3d at 1207. 93. See Rickert, 168 P.3d at 829-30 n.7
84. 85.

The Supreme Court has indicated that false statements about private individuals made with actual malice, but which are not defamatory, may not be protected speech. However, the Court has not held that false statements about public figures

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required actual malice and harm through libel or defamation.94 The cases involving the Stolen Valor Act, on the other hand, involve individuals telling lies about themselves, using puffery and deceit to better their own reputationsnot harming the reputations of others. There is no actual malice requirement in the Stolen Valor Act; false declarations about oneself are sufficient to warrant prosecution. An individual should not be criminalized for slandering his own name. In the Stolen Valor Act cases, there has been an attempt to criminalize the act of an individual who tells known lies about himself, not another. Therefore, this Stolen Valor Act legislation should not be read in conjunction with defamation law as suggested by the Robbins decision. Additionally, it is noted that not all false statements are denied First Amendment protection because an erroneous statement of fact . . . is inevitable in free debate.95 Some argue that despite the ruling in Gertz, a rule that presumptively protects false statements of fact, with exceptions for those categories of speech that create concrete harm, would best protect the values that underlie the First Amendment.96 Judge Jones of Virginia interpreted the Gertz case to [stand] for the proposition that false statements of fact are generally unprotected, but some speechspeech that mattersis protected.97 Speech that matters can be interpreted to mean speech that encourages debate. Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones.98 Applying this same analysis, the relevant question then becomes whether a false claim of ownership of a military medal is speech that matters. If the speech that matters analysis is applied, First Amendment protection
made with actual malice, but which are not defamatory, are devoid of all constitutional protection. All of the Courts assertions that calculated falsehoods about public officials or figures lack constitutional protection have been made in the context of suits involving defamation. Thus, the statements deemed unprotected speech in . . . [those] cases were all defamatory, as well as false. Hence, none of . . . [those] cases are determinative as to the constitutional protection afforded false but nondefamatory statements. Id. (internal citations omitted). 94. See id. 95. Gertz, 418 U.S. at 340. 96. Julie K. Wood, Note, Truth, Life, and Stolen Valor: A Case for Protecting False Statements of Fact under the First Amendment, 61 DUKE L.J. 469, 471-72, 510 (2011). 97. Robbins, 759 F. Supp. 2d at 818. 98. St. Amant v. Thompson, 390 U.S. 727, 732 (1968).

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should still hold to protect those who make false statements about themselves. As noted, some lies are protected to prevent a chilling effect that would stifle protected statements, and some false statements, such as political, historical, or scientific speech, may be protected as speech that matters.99 The Court in New York Times Co. v. Sullivan held that one cannot be punished for false statements regarding a government agency, without convincing clarity of and proof of actual malice.100 Allowing Stolen Valor false statements to live beyond the bounds of the First Amendment would create a new exception separate from defamation and libel law. Denying free speech protection to false statements about oneself would generate a generic false statement of fact exception,101 effectively allowing Congress to criminalize any lies. Accordingly, if the government intrudes into such behavior, particularly when an individual simply attempts to gain familial recognition or impress a peer for no quantifiable financial benefit, the result could be selfcensorship specifically rejected by the Supreme Court102 and the Constitution. If the Stolen Valor Act is held constitutional, the restriction on making private-life lies could permit further criminalization, even extending to personal ads and social networking sites. This viewpoint was articulated by the Ninth Circuit in Alvarez, where it stated:
Indeed, if the Act is constitutional . . . then there would be no constitutional bar to criminalizing lying about ones height, weight, age, or financial status on Match.com or Facebook, or falsely representing to ones 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, most people lie about some aspects of their lives from time to time.103

In fact, one man has done just that. Dylan Sorvino, also known as Kyle Anderson on Myspace, not only lied about military service to entice women into online relationships, but even used pictures of deceased

Robbins, 759 F. Supp. 2d at 819-20. New York Times Co. v. Sullivan, 376 U.S. 254, 267 (1964). In fact, it has been argued that prosecutions for Holocaust denial are probably forbidden by the First Amendment, regardless of whether or not the defendant is purely a liar or lacks knowledge. Brief for Eugene Volokh as Amici Curiae Supporting Petitioner at 1, 5, United States v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010) (No. 09-cr-00497-REB); see Steven G. Gey, The First Amendment and the Dissemination of Socially Worthless Untruths, 36 FLA. ST. U. L. REV. 1, 1 (2008). 101. Brief for Petitioner at 16, United States v. Alvarez, 617 F.3d 1198, No. 08-50345 (9th Cir. Aug 5, 2008). 102. See N.Y. Times Co., 376 U.S. at 278-79. 103. Alvarez, 617 F.3d at 1200.
99. 100.

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Sergeant Roberto Sanchez in his online profiles.104 Sorvino played online poker and invited fellow women players to befriend him.105 He would then tell them stories of his adventures before departing overseas never to be heard from again.106 He did not lure them into relationships or sexual trysts.107 However as morally reprehensible actions like Mr. Sorvinos are, an individual is unlikely to be prosecuted for lying on a Facebook account.108 In fact, the FBI spokesman for this case said that the FBI was unlikely to pursue an investigation seeing as no financial losses occurred and no mention of medals was made.109 If the government can start to limit lies in these contexts, where would the limitations stop? The Stolen Valor Act has the potential to start a slippery slope of regulation of private interactions that is at odds with the foundation of First Amendment jurisprudence. Limitations on free speech could limit the marketplace of ideas encouraged by the Constitution.110 The historical support of free speech, including lies, has been articulated by the Supreme Court:
To persuade others to his own point of view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have been ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.111

Justice Holmes articulated the necessity for this marketplace of ideas theory; the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.112 An individual must be free to sell himself through truth and lie in order for the competition of the market to thrive.113 In fact, the Gertz case, heavily relied upon by the

Karni, supra note 6. Id. Id. Id. See id. (The FBI is unlikely to launch an investigation if no financial losses resulted from the fraud, a spokesman told The Post.). 109. Id. 110. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 111. Alvarez, 617 F.3d at 1203 (quoting N.Y. Times Co., 376 U.S. at 271) (emphasis added). 112. Abrams, 250 U.S. at 630 (Holmes, J. dissenting). 113. JOHN STUART MILL, ON LIBERTY 2 (Longman, Roberts & Green, eds. 1869), available at http://www.bartleby.com/130/2.html. If the opinion is right, [individuals are]

104. 105. 106. 107. 108.

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government, recognized that the First Amendment requires the protection of some lies to protect free speech as a whole.114 The Virginia district court in Robbins recognized case law allowing the constitutional protection of parodies and hyperbole, but rejected this case laws application to the Stolen Valor Act.115 In one case, a newspaper was justified in renaming hostile debate as blackmail under the umbrella of hyperbole.116 Furthermore, readers are constantly exposed to the exaggerated stories of paparazzi reporting in publications such as US Magazine117 or online sites like Perez Hilton.118 The government should not be allowed to regulate such exaggerations that have been traditionally held as constitutional.119 IV. THE STOLEN VALOR ACT: PUTTING MORALITY ASIDE The government argues that Congress must be allowed to protect the awards of the nations war heroes, declaring these veterans an important part of our national treasure.120 In fact, ones moral compass may dictate that you should honor the men and women who sacrifice themselves to protect our country and democracy every day. According to the government, protecting the prestige of the medals earned will encourage heroism within in our country.121 As a nation, we should honor those who fight for us:
You did it for your country. We all gain when we give and we reap what we sow. Thats at the heart of this New Covenant, responsibility, opportunity, and citizenship, more than stale chapters by which we can fulfill ourselves and reach our God-given potential and be like them, and also to fulfill the eternal promise of this country, the enduring dream from that first and most sacred covenant. I believe every person in this country still believes that we are created equal, and given by our

deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. Id. 114. Gertz, 418 U.S. at 341. 115. See Robbins, 759 F. Supp. 2d at 820. 116. Greenbelt, 398 U.S. at 14. 117. See, e.g., US MAGAZINE, http://www.usmagazine.com (last visited Nov. 16, 2011) (illustrating an everyday example of paparazzi reporting). 118. See, e.g., PEREZ HILTON, http://perezhilton.com (last visited Nov. 16, 2011) (illustrating an everyday example of paparazzi reporting). 119. See Hustler Magazine, 485 U.S. at 57; Greenbelt, 398 U.S. at 14. 120. Brief for Government at 18, United States v. Alvarez, 617 F.3d 1198 (2010) (No. 08-50345). 121. Stolen Valor Act, 152 CONG. REC. at H8820-21 (daily ed. Dec. 6, 2006) (statement of Rep. Kline).

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The goal is to encourage this type of motivation and to demonstrate that heroism matters.123 Veterans are discouraged by the Stolen Valor criminals, arguing that those individuals have smeared and devalued their credibility.124 Veterans even find themselves wondering if an individual who is introduced to them has really obtained such an award, has really put his life on the line, and really understands what it takes to be a military hero.125 The internet is rampant with outrage at the Ninth Circuits decision.126 One blogger on Military.com wrote:
The fact that lying about military awards is deemed protected speech by the Constitution all veterans swore to protect and defend is insufferable to most veterans. The valor and meritorious service of those medals is now up for grabs. This ruling insults all that serve and steals the honor, valor and dignity those medals represent and that of those who honestly earned them. And this does no harm? This is but another example of the ignorance of many elite about the soul of uniformed service to our country.127

Indeed, by allowing those who lie about military honors to remain free from punishment, veterans are facing the devaluation of their medals.
122. Statement by President William Jefferson Clinton in State of the Union Address (Jan. 24, 1995), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname= 1995_public_papers_vol1_text&docid=pap_text-52.pdf. 123. See Stolen Valor Act, 152 Cong. Rec. at H8820-21 (daily ed. Dec. 6, 2006) (statement of Rep. Kline). 124. Mark Corcoran, Heroes, Frauds and Imposters, ABC NEWS (Australia) (Sept. 21, 2010), http://www.abc.net.au/foreign/content/2010/s3018090.htm (quoting Doug Sterner). 125. See id. Doug Sterner stated:

When someone says, well yes I was wounded in Iraq, do you think of that war that many men and women who have been wounded in Iraq or do you remember Rick Duncan who duped a whole community, a whole state and think, well I wonder if that man or that woman really was wounded in Iraq or is this just another Rick Duncan? Id.
126. See Patrick Brady, Black Robed Marauders of the Constitution, MILITARY (Sept. 8, 2010), http://www.military.com/opinion/0,15202,219892,00.html; American Legion, Comments: Poll: Should the Constitution Protect from Federal Prosecution Those Who Lie About Their Military Experiences, AMERICAN LEGION (2010), http://www.legion.org/ security/89437/should-constitution-protect-federal-prosecution-those-who-lie-about-theirmilitary-ex, (quoting AF Sarge) (The only people who deserve to stand and be recognized are those who have earned the right . . . that's all I'm going to say about that.). 127. Patrick Brady, Black Robed Marauders of the Constitution, MILITARY (Sept. 8, 2010), http://www.military.com/opinion/0,15202,219892,00.html.

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Citizens who have served their country are often applauded and given further recognition when they return to the normalcy of a citizens life.128 If simply anyone was allowed to present such a claim, the public would be unable to discern the veteran from the imposter. As a result, individuals could now second guess those who claim such honors. The American Legion, in an amicus brief supporting the constitutionality of the Stolen Valor Act, emphasized the fact that military medals are earned by heroic sacrifice.129 These medals are intended to inspire the living by recognizing soldiers who had been wounded as a direct result of enemy action.130 The arguments emphasize how these awards allow the military to be accepted into civilian lifestyle in politics and in offices, affecting how they were received, befriended, talked to, and voted for.131 A phony war hero is a thief and receives undeserved benefits.132 Although all these previous points are true, they are not founded in constitutional law, but in morality. Free speech cannot rest on the governments interest in protecting the symbolic nature of military honors, namely, heroism. Whether the public, via Congress, wishes to protect the military is not the issue. Rather, the question is how to protect an individuals heroism within the realms of free speech. The overbroad Stolen Valor Act is not narrowly tailored to protect the military as the Act intends. Criminalizing all lies about oneself, and the military honors that one has received, creates a slippery slope for Congressional interference into all types of speech, regardless of the veracity of such speech. V. SOLUTIONS TO PROTECT OUR HEROES A. A Proposed Stolen Valor Fraud Act A statute prohibiting fraud could be used to prosecute various individuals masquerading as military heroes, provided they meet the elements of the crime. There could also be legislation, such as a Stolen Valor Fraud Act, which would allow for an individual to be prosecuted if he or she materially benefited from impersonating a war hero. For example,
128. See e.g. Michael A. Memoli, Obama Marks Veterans Day with a Tribute to 9/11 generation, L.A. TIMES, Nov. 11, 2011, http://www.latimes.com/news/politics/la-pnobama-veterans-day-20111111,0,251848.story. 129. Brief for the American Legion as Amici Curiae Supporting Appellant at 1, 4-6, United States v. Strandlof, 746 F. Supp. 2d 1183 (D. Colo. 2010) (No. 10-1358), 2011 WL 5266269. 130. Id. at 4 (quoting FRED L. BORCH, FOR MILITARY MERIT: RECIPIENTS OF THE PURPLE HEART, vii (2010)). 131. Id. at 6. 132. Id. at 1, 8.

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if an individual gained a government contract by claiming he had won military awards, he could be prosecuted under a Stolen Valor Fraud Act. Today, individuals are more likely to be prosecuted for fraud under military law;133 for example, inducing customers consent through fraud is punishable under military law.134 However, not all individuals claiming to have been awarded medals fall within the militarys jurisdiction. Ordinary civilians claiming to have earned these awards having never served in the military cannot be prosecuted under military law.135 Under fraud legislation today, misrepresentation of ones person is a factor taken into consideration at sentencing.136 An individual could be prosecuted for fraudulent misrepresentations under tort law, but this requires an individuals fraudulent representation of their intention to act.137 A phony war hero could say he is a war hero without promising to take action or do something and could, as a result, escape prosecution.138 Under contract law, a misrepresentation is fraudulent:
if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of the assertion, or (c) knows that he does not have the basis that he states or implies for the assertion.139

If there is a contract obligation at issue, the liar could be liable for damages if there were a detrimental reliance upon the fact that he was a war hero.140 However, it is unlikely that the supposed war heros military commendations would be the sole factor for the plaintiffs reliance. Thus, the defendant could not be held directly liable. Therefore, it is necessary to create further legislation, which will allow for any phony war hero to be prosecuted. This type of legislation would target those who benefit materially from their stolen valor based lies. The remaining issue is how to target the individuals who have not specifically or quantifiably gained from their misrepresentations or if they should be targeted at all if they did not materially benefit. These phonies are lying for their own gratification or to gain further recognition from their peers. One case described women induced to help a man claiming to have
See 10 U.S.C. 934 (2006). See United States v. Carr, 63 M.J. 615, 621 (A.F. Ct. Crim. App. 2006) (review granted in part 64 M.J. 321, affirmed 65 M.J. 39). 135. See 10 U.S.C.A. 802 (2006). 136. See U.S. SENTENCING GUIDELINES MANUAL 2B1.1(b) (2010). 137. See RESTATEMENT (SECOND) OF TORTS 530 (1977). 138. See id. 139. RESTATEMENT (SECOND) OF CONTRACTS 162 (1981). 140. See id. 349 (1981).
133. 134.

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been a former Navy Seal awarded with the Medal of Honor by offering him a place to live.141 That man currently has an outstanding warrant for domestic violence when he allegedly choked and beat the women before he ran from the police.142 In only certain instances did the phony Navy Seal steal from the women and, therefore, materially benefit.143 If the women had known he was not a medal recipient, all harm may have been avoided. Society needs a method to verify the military commendations attributed to our military heroes and this Note suggests implementing a national database. B. Create a National Database In order to ward against the imposters claiming to be decorated military heroes, the government should create a national database of military award recipients. Doug Sterner, a decorated Vietnam veteran, has taken it upon himself to compile the most current database called the Hall of Valor.144 The website contains over 120,000 valor-medal recipients.145 Each individual award recipient is verified by official award citations or records from the National Archives.146 The government should follow Doug Sterners lead. The Department of Defense, however, argues that such a database would be expensive and incomplete.147 But, a 2004 study by the National Archives stated that these records could be digitized for a cost of $12 million, resulting in $4 million of savings per year by no longer requiring paper records and research.148 Therefore, the database would actually save the government money. Furthermore, the Department of Defense argues that the records would be incomplete due to a fire destroying a warehouse in 1973,149 but these records could be verified elsewhere. The government
141. Doug Sterner, Comment to Stolen Valor is Offensive, But is it a Crime?, JOHNATHAN TURNER BLOG (Mar. 9, 2010) http://jonathanturley.org/2010/03/09/stolen-valoris-offensive-but-is-it-a-crime/. 142. Id. 143. See id. 144. Welcome to the Military Times Hall of Valor, MILITARY TIMES HALL OF VALOR, http://militarytimes.com/citations-medals-awards/about.php (last visited Dec. 1, 2011) [hereinafter Hall of Valor]. 145. Ian Urbina, In Ranks of Heroes, Finding the Fakes, N.Y. TIMES, Aug. 1, 2009, http://www.nytimes.com/2009/08/02/us/02imposters.html. 146. Hall of Valor, supra note 144. 147. U.S. DEPT OF DEF., Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database, 1, 7 (Apr. 2, 2009), available at http://www.reportstolenvalor.org/pdf/DoD-DB-Report-04-02-2009.pdf. 148. Urbina, supra note 145. 149. U.S. DEPT OF DEF., Report to the Senate and House Armed Services Committees

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merely needs to follow the example of Doug Sterner to find other methods of verification whether by personnel or national records.150 The secondary process of verification currently used by the government is not easily accessible for every citizen, as it requires many requests for information and much red tape. For example, Janice Miller Girando attempted to obtain records sufficient to honor her father with a burial in Arlington National Cemetery (ANC).151 She was told by the Internment Services Branch of ANC that they needed actual documentation of her fathers service, but she did not have a service number.152 Girando sent two changes of duty orders, a release of active duty order, a copy of an Army and Navy Legion of Valor letter, and enlistment dates, but ANC needed even further documentation.153 ANC required an actual citation or General Orders.154 Girando was forced to turn to Sterners database and individual research for help.155 She was not able to obtain permission from the ANC for her fathers burial until five months after her research had begun.156 The government is a much better candidate for compiling the information necessary to truly honor an individual. Government institutions, such as the ANC, require independent verification.157 Therefore, the government should be responsible for creating a system which allows for the verification process to happen seamlessly. The Department of Defense argues that a new database would be redundant as there is already a database for those who have received the Congressional Medal of Honor.158 However, the United States has recognized over 10 million veterans service with awards, but only 3467 have received the Medal of Honor.159 The same government that argues

on a Searchable Military Valor Decorations Database, 1, 8 (Apr. 2, 2009), available at http://www.reportstolenvalor.org/pdf/DoD-DB-Report-04-02-2009.pdf. 150. Hall of Valor, supra note 144. 151. Janice Miller Girando, Letter to the Honorable Ike Skelton, Chairman of the Armed Services Committee (Aug. 14, 2008), available at http://www.reportstolenvalor.org/ pdf/Sterner%20HR%20666%20Response.pdf (attached to C. Douglas Sterner, Response to: Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database at 8-9). 152. Id. 153. Id. 154. Id. 155. Id. 156. Id. 157. Id. 158. See U.S. DEPT OF DEF., supra note 149. 159. C. Douglas Sterner, Response to: Report to the Senate and House Armed Services Committees on a Searchable Military Valor Decorations Database, 1, 2, available at http://www.reportstolenvalor.org/pdf/Sterner%20HR%20666%20Response.pdf (last visited

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that it is important to protect these medals as symbols of the United States claims that it is not necessary to generate a database verifying to whom these medals have been awarded.160 In order to defend the honor of American heroes, a comprehensive database should be published. As a final argument against constructing a database, the Department of Defense states that publishing identifying information, such as social security numbers or dates of births, would actually lead to more crime.161 However, awards prior to 1968 can be identified by a military service number.162 Additionally, there is no law prohibiting the publication of the social security number of a dead military hero, allowing for another identifying method.163 Using these two identifiers within a database would mean that 99% of the military awards bestowed upon veterans would be a secondary method of assurance.164 Such a database, made available with improved internet technology combined with prosecution under fraud legislation, would allow for the government to continue protecting its interest in the preservation of the prestige of military honors without treading on the right to free speech. The database would allow for easily accessible independent verification of an individuals status. Fraud legislation would allow for prosecution of individuals who materially benefit from their false statements of fact about themselves. The combination of a database and fraud legislation would eliminate the need for the Stolen Valor Act or allow it to be amended to the Stolen Valor Fraud Act. VI. CONCLUSION The Stolen Valor Act aims to protect the value of the military awards given to the United States military heroes. However, there are now challenges to the constitutionality of the Act created in 2005. In fact, the Stolen Valor Act should be held, as the Ninth Circuit found,165 to be unconstitutional. The Stolen Valor Act is overbroad and does not aim to protect a narrowly tailored goal of the government. There is no mens rea
Dec. 1, 2011). 160. See U.S. DEPT OF DEF., supra note 149. 161. Id. at 3. 162. Sterner, supra note 159, at 4. 163. Id. 164. Id. (Based upon these numbers, in the process of making available the citations for the 24,048 recipients of our Nation's most-highly decorated heroes, only 320 could fall into the category of not having unique identifiers. I further believe these numbers can be extrapolated out to the other awards, meaning 99% of all award recipients in the database will have a publishable Service Number or Social Security Number.). 165. See Alvarez, 617 F.3d at 1204, 1218.

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requirement, causing the criminalization of a false claim to military honor to be a strict liability crime. However, there is no evidence of Congressional intent to meet the exceptions delineated by the Supreme Court allowing for no scienter requirement,166 even though the punishment can extend to imprisonment for a year.167 Congress offers no further reasoning for the law other than it damages the reputation of a government institution.168 Arguably, no individual is harmed. This is a substantial overbreadth that does not serve a narrowly tailored purpose as the Act encompasses any false claims, even those in an online chat. Furthermore, this legislation does not promote the intentions of the Founding Fathers to create an uninhibited marketplace of ideas.169 The government is simply promoting its own institution and belief in a symbol of the United States military without balancing it with societys interests. However, the government cannot enforce protection of symbols by prohibiting free speech, as explained above.170 False statements of facts about oneself constitute speech that matters. Lies about oneself do not meet any of the specific categories previously outlined by the Supreme Court.171 These statements cannot be classified as libel or defamation as they are knowingly false statements about oneself. An individual should not be prosecuted for making false statements about oneself and therefore, the individual should not be prosecuted for improving ones reputation. False statements naturally occur in debate and should be afforded First Amendment protection. Allowing Congress to reach into personal claims and prohibit speech could allow the government to prosecute an individual for selfmisrepresentation in an online profile or in a bar setting. This intrusion steps too far into an individuals freedom of speech so protected by the First Amendment of the Constitution. Therefore, the Stolen Valor Act should be found unconstitutional. In the Stolen Valor Acts stead, the government should enact fraud legislation narrowly tailored to target those who have intentionally misrepresented themselves by claiming to have earned a military decoration and who have materially gained from this lie. In order to combat those who only improve their reputation to prey on the affections of others, the government should compile an online database listing the military

166. 167. 168.

See Morissette, 342 U.S. at 250-52; Dennis, 341 U.S. at 500. See 18 U.S.C. 704(c)(1). See Stolen Valor Act of 2005, Pub. L. 190-437, 2, Dec. 20, 2006, 120 Stat. See Strandlof, 746 F. Supp. 2d at 1186. See Johnson, 491 U.S. at 417; Lighthawk, 812 F. Supp. at 1102. See Chaplinsky, 315 U.S. at 572.

3266. 169. 170. 171.

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award winners of the United States. As these cases are heard by the Supreme Court on appeal,172 the Stolen Valor Act should be found unconstitutional. Despite morality telling us that our heroes should be protected, the government should not be allowed to intrude into the personal lives of its citizens so as to monitor the lies an individual is allowed to concoct. New, more narrowly tailored legislation, and government initiatives are needed to protect the honored members of the military who so heroically defend our constitutional rightsincluding those afforded to us by the First Amendment.

172. See Alvarez, 617 F.3d 1198 (9th Cir. 2010), cert. granted, 80 U.S.L.W. 3098 (U.S. Oct. 7, 2011) (No. 11210).