9th Circuit joins a Colorado District holding the Stolen Valor Act unConstitutional

[California Tanker]

Opinion here.

http://www.ca9.uscourts.gov/datastor...7/08-50345.pdf

Though I can understand some of the court's legal logic, I have a feeling this is an example of "The Law is an Ass". I do wonder whether the logic was correctly applied as it affects the real world, however.

The dissent is unusually dissatisfied, and seems to all but call the majority unbridled idiots. His argument also seems to be fairly logical to my unexperienced mind. Still it does take a bit of a left turn near the end. Allow me to quote from the dissent.

Lt. Dan: They gave you the Congressional Medal of Honor.
Forrest: Now that’s Lieutenant Dan. Lieutenant Dan!
Lt. Dan: They gave you the Congressional Medal of Honor!
Forrest: Yes sir, they sure did.
Lt. Dan: They gave you[,] an imbecile, a moron who goes on television and makes a fool out of himself in front of the whole damn country, the Congressional Medal of Honor.
Forrest: Yes sir.
Forrest Gump (1994), available at 404 Not Found (last visited July 6, 2010); see also The Karate Kid (1984) (representing that Mr. Miyagi, played by actor Pat Morita, had received the Congressional Medal of Honor for his heroism in World War II); The Next Karate Kid (1994) (showing Mr. Miyagi wearing the Congressional Medal of Honor).

I am not 100% certain, but I think this is fairly likely that this is the time Forrest Gump or Mr Miyagi have ever been cited in Federal court opinion. I think that adds a certain 'cool' factor.

Any judges ever quote Monty Python or Army of Darkness?

NTM

[Dingfod]

If a person engages in boastful puffery, falsely claiming that they received some sort of commendation, but don't use the claim for monetary gain or personal advancement or to take command at an accident scene, what is the harm? That it devalues the actual award? We already have laws against fraud that should cover other uses of such claims. I think pointing out the buffoon for public ridicule should be sufficient punishment. If it does devalue the award, I want everyone who has claimed to win the 2nd grade spelling bee but didn't to be brought up on charges, now, dammit.

[Adam]

Wow. I didn't even know that was a law. I can't believe anyone thinks that even might actually be Constitutional.

[California Tanker]

Originally Posted by Dingfod

If a person engages in boastful puffery, falsely claiming that they received some sort of commendation, but don't use the claim for monetary gain or personal advancement or to take command at an accident scene, what is the harm? That it devalues the actual award? We already have laws against fraud that should cover other uses of such claims. I think pointing out the buffoon for public ridicule should be sufficient punishment. If it does devalue the award, I want everyone who has claimed to win the 2nd grade spelling bee but didn't to be brought up on charges, now, dammit.

On the other hand, look at the practical applications. I don't think that winning the 2nd grade spelling bee is the sort of achievement which generally garners any respect. I don't recall ever seeing it used as something you'd find in a CV, mentioned in a political campaign, or even as a chat-up line. The reason you get so many military walts compared to anything else is because of the effect it has on the general public's response to the claims. Spelling bees are not official recognitions of character as valor awards are.

The laws against impersonating a cop are, I believe, generally uncontroversial even though they are applied even if the offender never actually tries to pull anyone over, conduct an arrest or just try to get through traffic jams faster. Try putting a blue/red light bar on your car (but don't turn it on) or wear a police badge and gun and just walk around a while, see what happens when a real cop spots you.

I can't believe anyone thinks that even might actually be Constitutional.

One of the judges apparently did.

NTM

[ChuckF]

Originally Posted by California Tanker

The laws against impersonating a cop are, I believe, generally uncontroversial even though they are applied even if the offender never actually tries to pull anyone over, conduct an arrest or just try to get through traffic jams faster. Try putting a blue/red light bar on your car (but don't turn it on) or wear a police badge and gun and just walk around a while, see what happens when a real cop spots you.

Or see what happens when you go to a costume store and buy a police costume and wear it to a Halloween party.

You offer a very good and very smart analogy. Court of Appeals judges are very smart people who are very good at coming up with analogies, and they thought of the very same one. The distinction between laws forbidding impersonation of a police officer and this law is actually an important part of the court's reasoning, and an important part of why this law is not constitutional. It's there on 11871-11873.

Most (and likely all) police impersonation statutes are deliberately written with intent elements. For some utterly mystifying reason, the Stolen Valor Act (wasn't "Stolen Valor" the name of a quest in Diablo?) was drafted without such an element. So, in the words of the court:

Unlike such uncontroversial criminal laws, however, the Act makes criminal the speech itself regardless of any defining context that assures us the law targets legitimately criminal conduct. Here again, Alvarez was not prosecuted for impersonating a military officer, or lying under oath, or making false statements in order to unlawfully obtain benefits. There was not even a requirement the government prove he intended to mislead. He was prosecuted simply for saying something that was not true. Without any element requiring the speech to be related to criminal conduct, this historical exception from the First Amendment does not apply to the Act as drafted.

Anyway, strict scrutiny's a bitch.

[Adam]

loldiablo

[Clutch Munny]

Originally Posted by California Tanker

Spelling bees are not official recognitions of character as valor awards are

n't.

Valor on an occasion is not general character. Official recognition of the former does not imply official endorsement of the latter.

[Stephen Maturin]

Thanks for posting this, CT. This case illustrates that questions you'd think must have definitive answers -- "Does the First Amendment protect lies?" -- are still up for grabs.

The dissenting judge put together some impressive string cites appearing to show that false statements of fact have no constitutional protection at all. Trouble is (as the majority points out), the cases in those string cites do in fact afford some constitutional protection to false statements of fact. The majority also did a fine job distinguishing criminal statutes proscribing fraud and impersonation.

This one is probably destined for en banc review. There's a very good chance that an en banc panel will reverse, but who knows?

The funny part is that the wingers will probably spin this as the lunatic fringe liberal Ninth Circuit showing contempt for our honored veterans when the decision actually favors "conservatives." The very existence of Fox News, the Sarah Palin grifting machine and the Republican Party would be in serious doubt if the government could freely criminalize false statements of fact.

Originally Posted by California Tanker

Any judges ever quote Monty Python or Army of Darkness?

Don't know, but one of my all-time favorite state supreme court justices came up with this awhile back:

But let us review what this court does accomplish today: (1) overrules a four-year-old case, (2) achieves that by adopting the central tenet of the case this court attacks, and (3) writes in new coverage limitations to an insurance contract that is no longer in use.

The three sitting justices who are in the majority have all been applauded as practitioners of judicial restraint. As to that restraint, I am reminded of the words of the character Inigo Montoya from the movie “The Princess Bride”:

“You keep using that word. I do not think it means what you think it means.”

Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, ¶¶ 99-101 (2003) (Pfeifer, J, dissenting).

In another case decided a couple of years later the same justice came this -><- close to saying that Ohio Supreme Court is the best state supreme court insurance industry money can buy. I liked that guy.

[California Tanker]

You offer a very good and very smart analogy. Court of Appeals judges are very smart people who are very good at coming up with analogies, and they thought of the very same one. The distinction between laws forbidding impersonation of a police officer and this law is actually an important part of the court's reasoning, and an important part of why this law is not constitutional. It's there on 11871-11873.

That said, it's not an exclusive list of laws either. The California Vehicle Code has no 'intent' or 'use of' qualifiers when it comes to putting a blue/red light bar on your car. Excluding 'authorised emergency vehicles' (and in the case of blue/red, police vehicles only) the lights are prohibited. You may not be done for the 'impersonating an officer' law, but the CVC law exists to stop other people thinking that you're an 'authorised emergency vehicle'

NTM

[Stephen Maturin]

Originally Posted by California Tanker

The California Vehicle Code has no 'intent' or 'use of' qualifiers when it comes to putting a blue/red light bar on your car.

Nor does that statute regulate speech and nothing but speech, as the SVA does. Even if full First Amendment protection applied, this is a pretty solid example of a statutory proscription supported by a compelling state interest.

[California Tanker]

It doesn't though, only the Section (b) requirement is being addressed by the Courts.

Read The Bill: S. 1998 [109th] - GovTrack.us

SEC. 3. ENHANCED PROTECTION OF MEANING OF MILITARY DECORATIONS AND MEDALS.

(a) Expansion of General Criminal Offense- Subsection (a) of section 704 of title 18, United States Code, is amended by striking `manufactures, or sells' and inserting `purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt for, manufactures, sells, attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value'.

This one caused some controversy amongst medal collectors, but it is a part of SVA which does not affect speech and nothing but speech, unless you wish to argue that in order to express yourself by wearing the medal you have the ancillary right to get one. The Colorado court, at least, did not distinguish between the components of the Act and just declared the whole shebang unConstitutional.

Though not particularly relevant to the argument (unless you want to argue that even bad legislation gains authority through age), it is also to be noted that false claim of having a Medal of Honor (But only applying to the MoH) was unlawful prior to the Stolen Valor act, an item which both the Colorado and 9th Circuit courts seem to have overlooked. SVA expanded the coverage, but did not create an entirely new crime. It seems that the history of the legislation dates to 1948, though I'm still looking that up.

NTM

[Stephen Maturin]

Originally Posted by California Tanker

It doesn't though, only the Section (b) requirement is being addressed by the Courts.

Right, and 18 U.S.C. § 704(b) (Section 3(b) of the session law you cited) proscribes nothing but pure speech. Neither of these rulings would automatically foreclose a prosecution under 704(a), despite the courts' somewhat careless statements that "the Act" is unconstitutional.

For anyone who's interested, here's the Colorado decision. My boss has a case pending in Judge Blackburn's court right now. It doesn't involve defense of a SVA violation, though, so we've gotta sign for our supper.

[Dingfod]

Originally Posted by California Tanker

I don't think that winning the 2nd grade spelling bee is the sort of achievement which generally garners any respect.

Hater.

When winning the 2nd grade spelling bee is your only award-winning accomplishment in life outside of winning the sack race at the company picnic, you polish that little trophy with as much pride as any medal anybody every got. It's not a matter of respect from other people.

[ChuckF]

Originally Posted by California Tanker

That said, it's not an exclusive list of laws either. The California Vehicle Code has no 'intent' or 'use of' qualifiers when it comes to putting a blue/red light bar on your car. Excluding 'authorised emergency vehicles' (and in the case of blue/red, police vehicles only) the lights are prohibited. You may not be done for the 'impersonating an officer' law, but the CVC law exists to stop other people thinking that you're an 'authorised emergency vehicle'

NTM

That's true. As Stephen Maturin pointed out, that particular law doesn't regulate speech qua speech, but even if we say for the sake of argument that blue lights are 100% pure speech, that law would probably still be constitutional. Because it's narrowly tailored to address a specific and compelling state interest, and is the least restrictive means of doing so. Distinguish again the Acte in Prohybitions of Thefts of Valour. It isn't really clear what the state interest is, and even if it was, it's hard to imagine that the act, as drafted, is anything close to the least restrictive means of achieving it. Writing in an intent requirement would go a long ways towards clarifying exactly what government interest the law is intended to protect, and limit the scope of the law to that interest.

For example, Congress might rewrite the statute to read something like:

Whoever knowingly makes any false statement or falsely claims, verbally or in writing, that he or she has 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, with the purpose of obtaining on behalf of him- or herself, or any other person, some financial or material benefit, shall be fined under this title, imprisoned not more than six months, or both.

I would hope that Congress would do a better job writing that than I just did in two minutes, but I can't promise anything. Something like that would go a long way towards improving the statute in the direction of constitutionality. It might cut the strict scrutiny butter, I don't know. They might want even to limit the financial or material benefit to certain transactions, like with federal agencies or something, but I don't really know about that. The only problem with that is that now the statute starts to sound like any other criminal fraud statute, and it becomes less and less like Congressmen are undertaking extraordinary measures to safeguard the HONOUR OF OURE MOST LOYAL MEN AT ARMS.

[Stephen Maturin]

The amicus brief that Prof. Eugene "Gene Gene the Speech Clause Machine" Volokh filed in the Colorado case is available here (pdf, 14 pages) and serves as a damn fine synopsis of the issue and the case law.

Prof. Volokh concluded that 704(b) is constitutional because laws of this sort are highly unlikely to punish or deter valuable speech. Judge Blackburn, by contrast, wrote that "[t]he government’s argument, which invites it to determine what topics of speech 'matter' enough for the citizenry to hear, is troubling, as well as contrary, on multiple fronts, to well-established First Amendment doctrine."

[California Tanker]

The amicus brief that Prof. Eugene "Gene Gene the Speech Clause Machine" Volokh filed in the Colorado case is available here (pdf, 14 pages) and serves as a damn fine synopsis of the issue and the case law.

In response to this Court’s Dec. 18, 2009 order, he is filing this brief, which offers an impartial analysis of the First Amendment question raised by this case. This brief was not solicited by either of the parties, or by anyone else; Volokh has no relationship to the defense or the prosecution in this case, nor has he conferred with the defense or the prosecution. The brief is being filed pro bono, with no financial support from the parties or any other organization (except that the filing fees are being paid out of Volokh’s UCLA Faculty Support Account).

That's kindof interesting. He basically just put his oar in out of his own personal interest in 1st Amendment cases, not because he was supporting either side or had been asked to do so. On the plus side, I'm rather pleased that this can be done, on the other hand, I wonder what the restrictions are so that the courts aren't overwhelmed with people sticking their oars in.

It is a good read though, I have to say. Brings up a few ideas I hadn't considered.

Prof. Volokh concluded that 704(b) is constitutional because laws of this sort are highly unlikely to punish or deter valuable speech. Judge Blackburn, by contrast, wrote that "[t]he government’s argument, which invites it to determine what topics of speech 'matter' enough for the citizenry to hear, is troubling, as well as contrary, on multiple fronts, to well-established First Amendment doctrine."

So what you're saying is that in your opinion the Government chose the wrong argument, and should have asked Volokh for a better one?

One of the posters over on the Conspiracy makes an interesting point: Does this mean I can now put a Silver Star on my uniform even though I've not been awarded one?

NTM

[It's Me!]

Originally Posted by Dingfod

... as much pride as any medal anybody every got.

Methinks, somebody is going to lose a trophy by the end of today.

[ChuckF]

Originally Posted by California Tanker

That's kindof interesting. He basically just put his oar in out of his own personal interest in 1st Amendment cases, not because he was supporting either side or had been asked to do so. On the plus side, I'm rather pleased that this can be done, on the other hand, I wonder what the restrictions are so that the courts aren't overwhelmed with people sticking their oars in.

Anyone can file an amicus brief. SCOTUS has rules about them, as do federal and state appellate courts.

One of the posters over on the Conspiracy makes an interesting point: Does this mean I can now put a Silver Star on my uniform even though I've not been awarded one?

Well, could you do that in 2004, before this act became law?

[Ensign Steve]

Originally Posted by California Tanker

One of the posters over on the Conspiracy makes an interesting point: Does this mean I can now put a Silver Star on my uniform even though I've not been awarded one?

NTM

No, but you already knew that, didn't you? (.pdf)

2–7. Possession and wearing
a. The wearing of any decoration, service medal, badge, service
ribbon, lapel button, or insignia prescribed or authorized by the DA
by any person not properly authorized to wear such device or the
use of any decoration, service medal, badge, service ribbon, lapel
button, or insignia to misrepresent the identification or status of the
person by whom such is worn is prohibited. Any person who violates
this provision is subject to punishment as prescribed in the
statutes referred to in paragraph 1–5.

1–5. Statutory authority
a. The wear, manufacture, and sale of military decorations, medals,
badges, and their components and appurtenances, or colorable
imitations of them, are governed by section 704, title 18, United
States Code (18 USC 704).

Not to mention that the UCMJ overrules the First Amendment on about a billion other issues involving volunteer servicemembers, which you also totally know more about than even me, so why the playing dumb by you and your Consipiracy buddy with his so-called "interesting" point?

[Stephen Maturin]

Originally Posted by California Tanker

So what you're saying is that in your opinion the Government chose the wrong argument, and should have asked Volokh for a better one?

Hey, I ain't drawin' no conclusions up in hyah. If I were, we'd start with the government's lead argument:

Attempting to side-step the First Amendment analysis implicated by the motion, the government contends that defendant’s admittedly false statements enjoy no First Amendment significance at all. Although conceding that some falsehoods may be protected in the context of encouraging public debate and political discourse – “speech that ‘matters’” in the government’s view – the government maintains that defendant’s statements and other, similar “[p]etty lies . . . do not promote the uninhibited marketplace of ideas and therefore are not protected” by the First Amendment. Stated differently, because defendant was not conveying a political message, speaking on a matter of public concern, or expressing a viewpoint or opinion, so the argument goes, his speech does not merit constitutional protection. (Citation omitted.)

While such arguments pack a decent punch in cases involving shitheads trying to pass themselves off as decorated veterans, they're a tough sell in a trial court that has to deal with an extensive body of precedent chock-full of statements such as this:

The very purpose of the First Amendment is to foreclose 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[.]

Riley v. National Fed'n of the Blind, 487 U.S. 781, 791 (1988).

I certainly understand the government's need to argue inapplicability of the First Amendment. After all, it would be tough if not impossible to craft an alternative argument that 704(b) is the least restrictive means of furthering a compelling state interest that passes the straight face test. However, expressly or impliedly claiming that Congress does or should have the final say as to what sorts of speech "matter" enough to warrant First Amendment protection ain't the best way to go about it.

The approach the government adopted in the California case -- trying to prove the inapplicability of the First Amendment through delving into the details of Gertz and its progeny -- looks more promising. We'll see about that come en banc review time, though.

Originally Posted by California Tanker

One of the posters over on the Conspiracy makes an interesting point: Does this mean I can now put a Silver Star on my uniform even though I've not been awarded one?

Section 704(a), which is unaffected by either of these decisions, sez in relevant part:

Whoever knowingly wears . . . any decoration or medal authorized by Congress for the armed forces of the United States, . . . except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.

So yes, you can do that, but you'd be subject to prosecution (assuming, of course, that placing an unawarded Silver Star on an Army uniform doesn't create some sort of "authoriz[ation]" that I'm unaware of). I don't know for sure, but I'd bet dollars to donuts that you'd be running afoul of some UCMJ provision as well. [Edit - Ensign Steve says yes, and she knows because she is an Ensign!]

The reasoning used to invalidate 704(b) doesn't appear to travel very well, at least to 704(a). The latter section, as you pointed out earlier, doesn't regulate pure speech. There's also a culpable mental state the government has to prove to get a conviction. If 704(a) were up for consideration before the same Ninth Circuit panel, I suspect it would hold up 3-0.

[California Tanker]

Originally Posted by ChuckF

Well, could you do that in 2004, before this act became law?

No, but making false claim to the Medal of Honor was illegal before 2004 as well. The court seems not to have noticed this, but I presume that even if they had, the prior ban would have been struck down on the same grounds. After all, if the prohibition is wrong, it's wrong, regardless of how long it's been on the books.

While such arguments pack a decent punch in cases involving shitheads trying to pass themselves off as decorated veterans, they're a tough sell in a trial court that has to deal with an extensive body of precedent chock-full of statements such as this:

Mr Volokh is presumably well versed in the precedent. Bearing in mind, of course, that nothing is 'right' or 'wrong' until the Judge rules on it, do you think Volokh was off-base when he concluded as he did that the prohibition would not have an effect on any speech which is open to interpretation, opinion, or place an undue burden on a truthful speaker, and thus should be permitted?

The reasoning used to invalidate 704(b) doesn't appear to travel very well, at least to 704(a). The latter section, as you pointed out earlier, doesn't regulate pure speech.

Getting a little outside of my frame of knowledge here, but given the court has not ruled one way or the other on 704(a) it's still apparently an open matter. Since it would appear that in the past 'free speech' has been applied not only to the spoken word, but also kinetic action (burning the US flag, for example) or things that are worn (all those cases involving T-shirts in schools), it does not seem a particularly great leap of faith to think that the prohibition on wear would meet the same fate as the prohibition on verbal claim given that the underlying grounds for both are exactly the same.

Not to mention that the UCMJ overrules the First Amendment on about a billion other issues involving volunteer servicemembers, which you also totally know more about than even me, so why the playing dumb by you and your Consipiracy buddy with his so-called "interesting" point?

The limitations on speech generally revolve around the need for the neutrality of the Armed Forces in the political sphere or the functioning of the chain of command. The wearing of medals doesn't have any particular reflection upon either of those two which the court hasn't apparently decided isn't well punished by public derision.

NTM

[ChuckF]

Originally Posted by California Tanker

No,

So, no, you could not wear an unearned silver star on your uniform before this act became law. Why would the court's finding that this act is unconstitutional enable you to do so now?

but making false claim to the Medal of Honor was illegal before 2004 as well. The court seems not to have noticed this,

I think they probably did.

but I presume that even if they had, the prior ban would have been struck down on the same grounds.

I think that is a very dangerous presumption to make. What was the language of the prior ban? Did it include, for example, an intent element that forced the government to demonstrate a culpable mental state?

After all, if the prohibition is wrong, it's wrong, regardless of how long it's been on the books.

Yes, that's true, but a recurring theme in the opinion and indeed in this thread is that not all prohibitions are the same. Some prohibitions are constitutionally appropriate exercises in government limitation of speech, others are not. The court did not say "The government cannot make it illegal to claim to have received medals that one did not earn." It said that this particular provision of this law, as drafted, is unconstitutional.

[California Tanker]

What was the language of the prior ban? Did it include, for example, an intent element that forced the government to demonstrate a culpable mental state?

No, upon research the old text said 'Wear', not 'claim'. Which goes back to the other question of if wearing something can be an expression of speech.

NTM

[erimir]

I don't know what I'm talking about (not being a law person)...

But it would seem to me that wearing an unearned Silver Star on your uniform would be much more like a fraudulent claim to have earned the star than wearing it on a t-shirt, for example.

I know, since my brother until recently was in the Marines, that when you're dressed in uniform as a member of the forces, there are regulations about how you can wear it and when you can wear it.

I don't see what about this ruling would entitle you to wear an unearned Silver Star while in uniform that wouldn't have to be based on an argument that would basically strike down all the regulations on uniforms for military members. After all, wouldn't it then be a violation of your free speech to prevent you from putting "flair" (a la Applebee's) on your dress uniform? But I don't think you take that possibility very seriously.

A civilian wearing a military uniform and so forth, however, I would think would be a greater gray area. But it would probably fall under the same regulations that affect civilians wearing police uniforms and such...

[ChuckF]

Originally Posted by California Tanker

No, upon research the old text said 'Wear', not 'claim'. Which goes back to the other question of if wearing something can be an expression of speech.

NTM

That's part of the question. The rest of the question is whether the prior ban included a culpable mental state requirement that places the proscription within a well-defined context. And the answer is yes, it did. Unlike 704(b), which was created by the Stolen Valor Act, the prior ban in 704(a) starts with a nice and clear "whoever knowingly..." That language has been in place since 1949. That particular section draws on language from a law passed by Congress in 1923, "An Act to prohibit the unauthorized wearing, manufacture, or sale of medals and badges awarded by the War Department." Interestingly, this law contained no mental state requirement until 1928, when it was amended to do so ("Any person who knowingly offends against the provisions of this section.")

Again, it's difficult to see how the court's reasoning could be applied to 704(a) and with the same result.