Lying about receiving a Medal of Honor? It’s shameful — but it shouldn’t be a crime.

Discussion in 'Off Topic' started by bruno, Feb 18, 2012.

  1. bruno

    bruno Retired Staff Member

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    I dunno- it is for sure shameful and the people who engage in this are pathetic, but I kind of agree with this writer - why should this category be illegal while virtually every other category of lying be protected speech?

    http://www.washingtonpost.com/opini...rime/2012/02/16/gIQAhpNFKR_story.html?hpid=z2

     
  2. scoutpilot

    scoutpilot Member

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    It doesn't matter to me if someone lies about their medals. It all comes out in the wash, and nothing I have done or those amazing things my warrants and soldiers have done on the battlefield can be taken away by these phonies. Let them lie. In the end, the fakers are easy to spot. They never get any real or lasting benefit out of it in the internet age.
     
  3. goaliedad

    goaliedad Parent

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    Interesting article, Bruno. I'm sure lots of exaggerations happen in bars telling war stories, but the criminalization of those lies would be laughable.

    That being said, I think when put to paper or testified to (like in an interview) for use in obtaining privelege or for financial gain should have a special category under fraud and other statutes, just like lying about having a medical credential as it puts at risk the reputation of the US military.

    Of course, people also lie about having a college credential (all too common on resumes). Those are not federally (with the exception of the military academies) run institutions, so that kind of lie isn't as easy to defend for prosecution - it is a commercial fraud (ok maybe state institutions can claim the government umbrella as well).

    Dressing up as a military officer (at least in a way that would fool the ordinary public) should be akin to counterfeiting US Currency. Assembling a good lot of bills is just like dressing up and going out in public. While you haven't presented yourself as an officer, the intent is obvious and should be prosecuted.

    And pretending to be a cop (at least by flashing credentials and wearing an official uniform) is a crime in most jurisdictions.

    The determinations of the prosecution should be done by how realistic the portrayal is.
     
  4. NorwichDad

    NorwichDad Member

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    Old soldiers tales or truths

    Sometimes time distorts the memory and truth. I been thinking of a story a neighbor RP told me last week. He's 91 & Birthday last week. I gave him a birthday card with six scratchoff lottery tickets. He won a hundred dollars. He said he is always lucky. He saw his share of fighting 2nd Marine Division 1942 to 1946. He told me in California in 1942 he saw a USO show. Betty Grable, an actress came down from the stage and sat in lap and gave him a kiss. He said everyone, even his colonel knew who he was after that. Just wondering how the stories can change over time. Then again this guy would probably pull a newspaper clipping with a picture of that event. A lot of the truth does get lost in the fog during and after a particular bad time. Sometimes it is better to go along with it.
     
  5. bruno

    bruno Retired Staff Member

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    But counterfeiting US currency is financially defrauding the public. While I could see a federal crime if the blowhard with the fake medals is using them to gain access to Veterans benefits etc.. that's fraud and is criminal activity. But why should it be a Fed crime for some pathetic twerp to parade around in his Ranger Joe's acquired Jungle Cammies and reminisce about how grueling it was at Khe Sanh or Dak To when he never got farther than the Oakland Army Terminal or Great Lakes? If the public isn't out money - where is it anything other than pathetic behavior? These people are in turns appalling and pathetic, but is there any greater offense to them pretending to be vets or heroes than pretending to be Astronauts?
     
  6. scoutpilot

    scoutpilot Member

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    The key difference is that dressing as a police officer poses risks to public safety, as a fake officer could falsely arrest, execute false stops, or gain entry into people's homes (to name just a few risks). Dressing as a military officer presents no such risk.
     
  7. NorwichDad

    NorwichDad Member

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    Absolutely agree. It is horrible but it occurs in such varying levels to lies in a bar or party to marching in parade to fraudulent misreprestation on federal paperwork. Where is the line drawn legally? A person marching in parade in Idaho wearing unearned medals would not be noticed as much as a politican or celebrity in a comment slightly misrepresnting an event in their service to our country.

    This seems to be a tough one to crack.
     
  8. goaliedad

    goaliedad Parent

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    Probably not my best argument, but the concept is with counterfeit money, just being in possession is a crime (no spending necessary). IIRC the feds working with Swiss and Italian authorities just arrested some folks with fake US Treasuries. Large quantities that you would think laughable. Someone wanted to look rich to borrow money. They never even got to use it.

    Yes, fake currency do pose a threat (primarily inflation - and that would be very minor for even $1 billion in fake bills to make their way into circulation), but there is a special place for even someone with $100 in fake twenties, because if we didn't stop all counterfeiters with copy machines, we would have more currency than we could imagine. Think about this, if using counterfeit money for non commercial purposes was legal, I could take a couple stacks of fakes to the club and make it rain and leave it to the fools there to figure out that these were fakes and they were suckered. Since I didn't benefit, did I commit a crime?

    My fear is that if we don't criminalize (even if it is a $100 fine) this stuff, we will have many thousands of MOH winners in parades everywhere. One stray one here or there hasn't hurt us yet, but if we don't make an example of them, we will have plenty more.
     
  9. pennak

    pennak Member

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    As a rule, lying is not entitled to 1st Amendment protection. See,e g., GERTZ V. ROBERT fiELCH, INC., 418 U.S. 323, 340 (1974) (STATING THAT “THERE IS NO CONSTITUTIONAL VALUE IN FALSE STATEMENTS OF FACT,” BECAUSE SUCH STATEMENTS DO NOT “MATERIALLY ADVANCE() SOCIETY’S INTEREST IN UNINHIBITED, ROBUST, AND WIDE-OPEN DEBATE ON PUBLIC ISSUES”) ; Beck Const. Co., 536 U.s. AT 531 (stating that false statements are "unprotected for their own sake"). So your premise is incorrect. Obvious examples are perjury in an official proceeding, defamation or libel, false statements during a government investigation, and statements that amount to fraud. The SCT has fashioned "breathing space" limitations on defamation suits in limited contexts, e.g., suits brought by a public figure and even then, it is not that the lie is protected but just that public officials can't sue for damages. The issue in Alveraz is whether the Stolen Valor Act, 18 U.S.C. § 704(b), which makes it a crime to falsely represent that you have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, is facially invalid under the Free Speech Clause of the First Amendment. I would be astonished if the SCT sustained the 9th circuit's ruling here.
     
    Last edited: Feb 18, 2012
  10. bruno

    bruno Retired Staff Member

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    Well- actually none of your examples seems to shed much light on why this should be a be a federal crime.
    All of those categories imply either personal gain or harm to others, or impeding an official investigation. But the Stolen Valor Act isn't hinged on that is it? Merely the claim is enough. And most definitely, despite whatever legal parsing you wish to place on it, lying in the public space is in fact part and parcel of the way things are conducted- whether it is "harmless" lying to hide true feelings or lying to achieve some public or personal reputation. Ever notice how battles get larger over time? How many more first responders rushed to New York on 9/11? By 2021 when peoples memories will be pretty foggy, I am certain that if you add up all the claims, well over 100,000 people will have had meetings in the twin towers at 0915 on that morning. The public, the government and individuals all lie- constantly, though usually they do so in individual and private settings. I suspect it would be news to the vast majority of the public as well as the legal industry in the US that lies told with out either the intention or effect of inflicting harm on others is not protected public speech. That's not say it's admirable speech but is it criminal?

    But if the position you are articulating is that any false claim is already a crime- independent of any gain or injury to others- then why not write the federal law that way? Because it would not pass nor would it be upheld is the answer. So then you come back to the basic question- why is this worthy of a Federal statute, and should it be so? Really- is this worthy of being a Federal crime ? In the age of the internet, fraudulent claims can and are outed rapidly and relatively easily and these individuals are relegated to the humiliation and ignominy that they deserve. Why though should this rise to the level of a federal crime- tried in front of a Federal judge? Is that really what we want of the Federal government? Like I said in my earlier posts- I find these incidents and people personally abhorrent, but I have a really hard time with everything that is personally abhorrent rising to the level of federal crimes.
     
    Last edited: Feb 19, 2012
  11. pennak

    pennak Member

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    Bruno: A couple of points. Whether lying about your military medal *should* be a crime is quite different than the point, you made earlier (and to which I responded with my post) that lying is protected speech under the 1st Amendment. It's not protected speech and hence is entitled to no solace under the law. As I said, the premise is wrong. Of course, that lying is not protected does not necessarily mean it should be prohibited either. The Court's breathing room cases make that clear in holding that lying can't be prohibited when doing so would infringe on some important 1st Amendment principle, such as freedom of the press.

    Indeed, that lots of people lie is a truism and certainly it would be insane to attach criminal sanctions for all lying. (You and I are saints, of course, but I am reasonably sure that all the rest of the population are not). And reasonable people can and do disagree about whether this guy's lie about receiving the Medal of Honor is worthy of criminal sanction. That is a matter of personal opinion. In my book, those who actually have received such medals for valor have special standing to opine on this subject, but this is a matter of public policy and everyone has a right to an opinion.

    Congress enacted the Stolen Valor Act because of a strong feeling that these liars ought not be allowed to claim military honor, which are bestowed under the authority of law enacted by Congress for deeds, including self-sacrifice, that are in defense of our country. Such lying is an affront to all citizens. Congress has identified the harm at issue: “[f]raudulent claims surrounding the receipt of ... [military] decorations and medals awarded by the President or the Armed Forces of the United States damage the reputation and meaning of such decorations and medals.” Stolen Valor Act of 2005, Pub.L. No. 109–437, § 2(1), 120 Stat. 3266 (2006). That honor is and ought to be rare and highly esteemed and that honor should not be diluted or diminished or stolen by fraud or liars. This especially applies to the MofH, which is not only the highest honor, it is usually awarded posthumously. I personally agree with that Congressional judgment. I think this circumstance is a far cry from the run of the mill lying seen in everyday life. I also think the sanctions are too mild, but then I am a unforgiving a Hard A__ on this.

    Anyway, my original point was that the Ninth Circuit is way wrong *on the law* on this one (as were you were mistaken, BTW, in suggesting the lying is protected speech under the 1st Amendment -- nothing personal, Bruno, you are probably not a lawyer and you actually produce something useful in your line of work). Rather than belabor this point, I would point to the 9th Circuit's exchange of views in a very sharply divided court on the denial of rehearing en banc. You will find it at United States v. Alvarez, 638 F.3d 666 C.A.9 (Cal.),2011. My prediction is that the views of Judge O'SCANNLAIN, dissenting from the denial of en banc, will carry the day in the Supreme Court. But, that's just my personal opinion. The Court's opinion will clarify the law on this. Look for it in June.
     
    Last edited: Feb 19, 2012
  12. pennak

    pennak Member

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    As I said, reasonable people may disagree over the wisdom of the law. Stupid people go to jail all the time and refuse to learn. Nothing new there. That doesn't mean we repeal the laws under which they are sentenced. Maybe the next slightly less stupid guy will get the idea and be deterred.

    The Brief of the United States filed in Alvarez (which will be argued this coming Wednesday) makes a powerful case that military valor awards in particular serve a vital military purpose. As the government says "the extent to which the military honors program serves these critical goals depends on the government's ability to safeguard the program's integrity." I agree. BTW, if anyone wants the briefs in the case, they can be found at www.scotusblog.com under the case name, United States v. Alvarez. The veterans' groups have all filed amicus briefs in support of the law, including the American Legion, the Congressional Medal of Honor Foundation, and the Veterans of Foreign Wars.
     
    Last edited: Feb 19, 2012
  13. pennak

    pennak Member

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    I willingly yield to your expertise and experience on the practical effect and utility of the system. However ultimately futile it may be, I am glad, on a gut level, that Congress sought to punish this particular brand of stupidity. The Court may struggle with the case, but they leaped at the chance to take the case. That usually means reversal. The 1st Amendment legal issue presented is actually *very* interesting, even apart from the statute. I note that the 10th Circuit recently sustained the Act against the same constitutional challenge. See U.S. v. Strandlof, -- F.3d ----, 2012 WL 247995, C.A.10 (Colo.), January 27, 2012 (NO. 10-1358). I am looking forward to the argument tomorrow.
     
  14. bruno

    bruno Retired Staff Member

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    http://www.armytimes.com/news/2012/02/military-supreme-court-takes-on-stolen-valor-022212w/

    Army Times reported on yesterday's Supreme Court debate on this case. Very interesting reading. While on a gut level prosecuting the useless scuzzballs who claim honors not their own is satisfying, but this is a much bigger issue. How as the article points out could you justify protecting the free speech of Westboro Baptist church - which truly does intentionally target people in their most vulnerable moments- yet argue that somehow the law should criminalize speech which makes claims which though false really harms no one? (I assume that the harm inflicted is the point upon which this really will rest, but it is going to have to be one heck ofan argument to convince me that real heroes are harmed by the spurious claims of others.)
    It will be interesting to see how this turns out.
     
  15. pennak

    pennak Member

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    You can see the Court struggling with these concepts and problems during the argument. Counsel for Alvarez made a key concession that the Act did not chill any protected speech in that case. If accepted by the Court (Justice Kagan called it a *big concession*) that concession may be fatal to Alvarez' claim. If you are curious, the transcript of the argument can be found at http://www.scotusblog.com/case-files/united-states-v-alvarez/ in PDF format.
     
  16. pennak

    pennak Member

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    PS: That's not the harm argument. The harm argument is that it harms the government's ability to honor those valiant men and women who have legitimately won these medals. The constitutional question is whether that harm (which does not appear to be contested by the plaintiff and which was seemingly fully accepted as legitimate by the Court during argument) is sufficient. As you say, it will be interesting. I'll go out on a limb and predict that the Act will be sustained.
     
  17. sprog

    sprog Member

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    I'm looking at some of Kennedy's comments. My guess is the 9th Circuit is affirmed 5-4.

    This is just a guess.

    I bet it's 5-4 either way. Kennedy seems not willing to make a broad declaration that false statements are always unprotected (esp. when they produce no harm), but he might accept that they are unprotected in this narrow circumstance. Even then, it boils down to whether the Court accepts if the "harm" the government alleges is, in fact, really harmful (Kennedy makes the analogy of devaluing a Trademark).

    I really dunno....

    Interesting, at any rate.
     
    Last edited: Feb 23, 2012
  18. AF6872

    AF6872 Member

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    Stupidity has never been a crime but it has always been protected. Using stupidity of others to defraud (causing harm) is a crime.
     
  19. pennak

    pennak Member

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    I'm going farther out on the limb. 6-3 reversal. I think he lost Kagan with the concession
     
    Last edited: Feb 23, 2012
  20. pennak

    pennak Member

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    We should be getting a decision in this case very soon, perhaps as soon as next Monday.....
     

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