Tenth Circuit Rules Criminalizing False Claims of Military Honors is Constitutional

We’ve asked these questions before, but they bear repeating:

Should it be illegal for a man to tell others he won the Congressional Medal of Honor (CMH), the U.S. military’s highest honor awarded to those who served with distinguished valor in action against enemy forces, when he did not? 

Likewise, should it be illegal for a man to say he was awarded any U.S. military medal, decoration, ribbon, etc. when he was not? 

Is lying about one’s military career, whether real or fictitious, covered under the First Amendment?    

Under the Stolen Valor Act, signed by U.S. President George W. Bush on December 20, 2006, it is a federal misdemeanor to falsely represent oneself as having “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.”

The punishment for lying about one’s military record could be six months to a year in prison depending on which medals one is falsely claiming he/she had been awarded (punishment is more severe for the CMH).

So far though, federal courts have been torn over the constitutionality of the SVA.  Some have ruled that the law tramples on one’s First Amendment rights, whereas others have ruled that it accords with narrowly limited classes of speech, such as defamation, that is historically unprotected by the First Amendment. 

Last year, for example, the San Francisco–based 9th U.S. Circuit Court of Appeals ruled (in US v. Alvarez) that the SVA is unconstitutional and making false statements is protected free speech. 

It ruled that if it were to uphold the law, “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.”

However, a few weeks ago, the 10th U.S. Circuit Court of Appeals ruled in the opposite way on a different case (US v. Standlof) involving the same issue. The three-judge panel of the Denver-based court said the SVA does not violate one’s First Amendment rights.  

“As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech,” Judges Timothy M. Tymkovich and Bobby R. Baldock said in the ruling. “Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.”

So who’s right and who’s wrong? 

Well, we don’t know yet.  But we will know soon.  As the Supreme Court has elected to hear a case involving this very issue: US v. Alvarez.

In 2006-07, Xavier Alvarez was tried and convicted for violating the SVA.  He told people at a public meeting that he was a retired Marine who had been awarded the CMH.  However, he had never even served in the military.  He was the first individual tried under the SVA. 

For his unlawful behavior the presiding Judge gave him a $5,000 fine and 416 hours of community service.

However, he appealed the ruling and now his case is headed to the high court.

The Supreme Court will begin to hear US v. Alvarez this month.  We’ll keep you posted on the progress of this case.