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

36 Pages Posted: 14 Oct 2011 Last revised: 29 Nov 2011

Jeffery Barnum

United States Coast Guard

Date Written: September 27, 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.

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

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: https://ssrn.com/abstract=1943931

Jeffery Barnum (Contact Author)

United States Coast Guard ( email )

United States

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