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False Valor: Amending the Stolen Valor Act to Conform with the First Amendment's Fraudulent Speech Exception


Jeffery Barnum


University of Washington - School of Law

September 27, 2011

Washington Law Review, Vol. 86, No. 4, 2011

Abstract:     
The Stolen Valor Act (SVA or “the Act”) was enacted to protect against “fraudulent claims” of receipt of military honors or decorations. It does so by criminalizing false verbal or written claims regarding such awards. However, the Act failed to include all of the elements of an anti-fraud measure required by the First Amendment. Most critically, the SVA fails to require actual reliance on the part of the defrauded. Although fraud is generally not protected by the First Amendment, courts cannot construe the SVA as an anti-fraud measure if the statute does not require actual reliance. Therefore, the SVA as written has been subject to the higher strict scrutiny standard when challenged on First Amendment grounds.

However, this oversight is easily remedied. Congress should amend the SVA to require that targets of the fraudulent claim alter their behavior based upon the false representation of military honors without necessarily suffering an economic injury. By modifying the SVA in this limited fashion, Congress will enable courts to construe the SVA as an anti-fraud measure while protecting against harm caused by false claims of military honors.

Number of Pages in PDF File: 36

Keywords: Stolen Valor Act, First Amendment, Military Honors, Military Decorations, United States v. Alvarez

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Date posted: October 14, 2011 ; Last revised: November 29, 2011

Suggested Citation

Barnum, Jeffery, False Valor: Amending the Stolen Valor Act to Conform with the First Amendment's Fraudulent Speech Exception (September 27, 2011). Washington Law Review, Vol. 86, No. 4, 2011. Available at SSRN: http://ssrn.com/abstract=1943931

Contact Information

Jeffery Barnum (Contact Author)
University of Washington - School of Law ( email )
William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

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