A fake Medal of Honor or Purple Heart: Is it free speech?

Manners, decency, even morality are one thing – free speech is another. So the federal court of appeals March 21 ruling that lying about one's military record is protected free speech, rankles many who respect the special currency of a military medal, badge, or honor.

At issue is the Stolen Valor Act (SVA). Until it was enacted in 2006, you could hold up a medal, say you were a war hero and, as long as you didn't actually pin it on, no law was broken. The SVA closed that loophole by making it a crime for anyone to falsely state – "verbally or in writing" – that they hold such honors.

In two of the 60 or so cases brought exclusively under the SVA, courts in Colorado and California challenged the act's constitutionality on free speech grounds. The California case – involving Xavier Alvarez, of Pomona, Calif., a public official who said at a public meeting in 2007 that he was a retired marine who had received the Medal of Honor, even though he never served in the military – went on to the US 9th Circuit Court of Appeals, which last month upheld the initial ruling: Despicable, yes. Criminal, no.

More than a quarter of the 26 active judges dissented, paving the way for federal prosecutors to take it to the Supreme Court.

Decorated Vietnam veteran Doug Sterner, who was instrumental in getting the SVA enacted, maintains it is not only just, but useful: "Over the last five years, I would estimate that Stolen Valor investigations have uncovered somewhere between 5 and 10 million dollars in fraud against the Veterans Administration. And that's just the cases that I'm aware of."

Critics of SVA, however, think it should be scrapped, acknowledging that free expression makes for a messy public square. Referring to past Supreme Court rulings, 9th District Chief Judge Alex Kozinsky argued it was hard to understand how lying about being a military hero was "so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes.…"