The Maine Center for Constitutional Studies will be submitting the following legislation to several State legislatures, beginning in Maine. MCCS will also ask Maine's Congressional public servants to submit the Fake Warrior Act for Federal adoption at the earliest opportunity.

Contact: Kenneth A. Capron, kcapron@maineccs.org, 207-797-7891

The Fake Warrior Act - A Replacement for the Unconstitutional Stolen Valor Act

Constitutional Law Professor Henry Mark Holzer:

In the Introduction to our 2003 book Fake Warriors: Identifying, Exposing, and Punishing Those Who Falsify Their Military Service, Erika Holzer and I wrote that:

Unknown to most Americans, there is a virtual epidemic of imposters in this country - countless thousands of men who, since the Vietnam War, have been either inventing a non-existent military service, or inflating their war records. Veterans' benefits amounting to hundreds of millions of dollars are being stolen. Military decorations are being falsely claimed, and often worn, by men never authorized to receive them - the kind of medals earned the hard way by genuine war heroes.

The next year, presidential candidate John Kerry's campaign website claimed that he had been awarded not only three Purple Hearts and a Silver Star (all undeserved), but the Silver Star was adorned with a "Combat ‘V'." That combination (Silver Star and "Combat ‘V'") has never in all history been issued by the United States Navy because the "V" (for valor) is redundant to the Silver Star (for valor).

During the recent 2010 off-year election, it was revealed that the now-successful Democrat Party candidate for a Connecticut seat in the United States Senate, Richard Blumenthal - former United States Attorney for the District of Connecticut and State Attorney General - lied for years about serving in Vietnam. (If every veteran, their families and friends had voted against the Fake Warrior, perhaps the election's outcome would have been different.)

In Fake Warriors, Erika Holzer and I wrote that "[u]nless something is done about ... Fake Warriors, their shameless, self-aggrandizing, and costly conduct will not only continue unabated, it will grow."

Whatever the influence - Burkett and Whitley's Stolen Valor, the Holzers' later Fake Warriors, or something else - several years ago a dedicated group of patriots formulated an anti-Fake Warrior federal statute, lobbied fiercely for it, and succeeded in having it enacted by Congress and signed into law on December 20, 2006 by then-President George W. Bush. It is called the "Stolen Valor Act" (SVA).

The Act amended 18 U.S.C 704 (a), which for years had criminalized the wearing, manufacture, or sale of unauthorized military decorations, medals, and awards. Note the italicized words. They all constitute acts, not "pure speech."

In support of the SVA, Congress made a finding that Section 704(a) had previously inadequately protected "the reputation and meaning of military decorations and medals." (Put aside the question of whether "military decorations and medals" can themselves, rather than individuals, have a "reputation").

Accordingly, the SVA amended, and broadened, Section 704, to read as follows:

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 member of such forces, the ribbon, button, or rosette of any such badge, decoration , medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both. (Note the two words I have italicized, which describe not acts - such as wearing, manufacturing or selling, but pure speech.)

Under this SVA amendment, if the Fake Warrior claims to have been awarded the Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, or Purple Heart, punishment for the crime is enhanced to one year in prison.

Throughout the drafting of the SVA and the legislative process leading to its enactment - and, for that matter, later while the Act was in force and prosecutions were occurring - I consistently told the Act's partisans and others that as admirable as the law's intention was, because it punished pure speech it violated the First Amendment and was thus unconstitutional.

As an Army veteran who served in Korea in the mid-1950s, and co-author of Fake Warriors who considers "Fake Warrior-ism" reprehensible, I'd prefer to have reached the opposite conclusion.

But as a constitutional lawyer for over fifty years, it was clear to me that the SVA was a content-based suppression of pure speech that could not be justified by the kind of requisite narrowly tailored, "compelling" federal interest such as the Court has found in punishing defamation, "fighting words," and hard-core pornography, and protecting the psychological and physical well-being of children. Indeed, the Supreme Court has more than once said that a "compelling government interest is an ‘interest of the highest order'."

My conclusion has now been vindicated by two United States federal courts.

On July 16, 2010, United States District Judge Robert E. Blackburn, sitting in Denver federal court, dismissed charges against Rick Glen Strandlof brought under the SVA. The judge ruled that the Act was a content-based restriction on pure speech, and that no matter how important protection of patriotic symbols may be (although the Supreme Court has protected as "symbolic speech" even burning the American flag in protest), that the government interest sought to be served by the SVA was not sufficiently compelling to warrant criminalizing mere words. (Judge Blackburn deserves no criticism for his decision. He applied the First Amendment as construed by the Supreme Court of the United States. As a matter of fact, his opinion contains unequivocal evidence of not only his fealty to that amendment, but to his personal patriotism. (His opinion can be found at http://www.cod.uscourts.gov/Documents/Judges/Opinions/09-CR-00497-REB.pdf.)

The second case is a decision by the United States Court of Appeals for the Ninth Circuit, in United States v. Alvarez, rendered on August 17, 2010. (The majority opinion can be found at http://www.ca9.uscourts.gov/datastore/opinions/2010/02/19/08-70253.pdf.)

Circuit Judge Smith and his colleague Judge Nelson (Judge Bybee dissented) concluded that:

In order to advance Congress's praiseworthy efforts to stop fraudulent claims about having received Congressionally authorized military honors, the government would have us [by holding SVA constitutional] extend inapposite case law to create an unprecedented exception to First Amendment guarantees. We decline to follow such a course, and hold that the Act lacks the elements that would make it analogous to the other restrictions on false speech previously held to be proscribable without constitutional problem. Accordingly, we hold that the Act is not narrowly drawn to achieve a compelling governmental interest, and is unconstitutional.

In other words, untrue pure speech - for example, "I won the Medal of Honor for saving my platoon leader's life in Vietnam" - is constitutionally protected under the First Amendment unless the government (state or federal) can prove it has a compelling reason to suppress it, a reason "narrowly tailored" to achieve the government's interest.

And therein lies the fundamental flaw that inevitably killed the Stolen Valor Act in two courts, and will probably bury it when the Act reaches the Supreme Court of the United States. The Stolen Valor Act unjustifiably punished pure speech.

I have corrected that problem in my FAKE WARRIOR ACT OF 2010.

I encourage those of you who have had enough of the Fake Warrior phenomenon, and the damage these fraudsters do, not to wait for Supreme Court resolution of the SVA and/or perhaps a distant Congressional correction.

Instead, I urge you to make a major effort to have my solution to the problem - the Fake Warrior Act of 2011 - introduced into every state legislature in America when it opens for business in January 2011!

You will note that in the Fake Warrior Act of 2010 I have accomplished two significant things.

First, I have rooted the State’s or Commonwealth’s interest not in punishing speech - because in the Fake Warrior context there is no narrowly tailored compelling government interest to do so - but instead I have rested it on criminalizing a unique type of fraud - one that has been a common law and statutory crime for centuries.

Second, I have supported the State’s or Commonwealth’s interest with "Findings" of such a nature as to emphasize their anti-fraud interest, not resting their interest on the suppression of speech (as the SVA regrettably and unconstitutionally did). These Findings will provide a reviewing court with an unambiguous understanding of the legislation’s sole anti-fraud purpose.

I have done my part.

The rest is up to those of you who share Erika Holzer’s and my abhorrence of Fake Warriors.

MCCS CEO Kenneth Capron will be making presentations to Veterans organizations and other interested parties. If your organization would like a presentation, please contact: Kenneth A. Capron, kcapron@maineccs.org, 207-797-7891

Note: the following article is published here by request. It is the opinion of the author and does not necessarily reflect the opinions or viewpoints of MCCS nor its members and staff. We do however express appreciation for the author allowing us to included this original work here. MCCS does always recommends that individuals do their own research and come to their own conclusion as opposed to simply following the crowd.

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