Stolen Valor: The First Amendment Strikes Again (Commentary)

By Richard W. Fox ’13

“Purple Hearts: We won’t have to pay for a drink all night.”  Wedding Crashers (New Line Cinema 2005).

John Beckwith, one of the protagonists from the movie “Wedding Crashers,” suggested this scheme during a wedding reception to which he had not been invited. I remember chuckling at this line in the theater, but I also remember the reason I found it humorous was because I could not fathom that anyone would actually lie about receiving a Purple Heart to get free drinks. No one, I thought, could possibly be so utterly disrespectful to the men and woman who have been wounded or killed in service to their country.  That was, until I read about Xavier Alvarez.

At a 2007 public meeting of the Three Valley Water District Board, Alvarez claimed to have been a Marine who received the Congressional Medal of Honor. The problem was Alvarez never earned the medal, and by lying about it he violated a federal law known as the Stolen Valor Act.  Alvarez pleaded guilty to violating the act, but claimed the law violated his First Amendment right to free speech. Last week the Supreme Court of the United States agreed with Alvarez, declaring the Stolen Valor Act unconstitutional.

As a Marine veteran, I have nothing but contempt for Xavier Alvarez. But one does not have to be a Marine or a veteran to recognize the moral repugnance of lying about earning the Medal of Honor. All nine justices (none of whom have served in the military) and a nearly every American citizen (a majority of whom also have never served in the military) understand that Alvarez’s actions were outrageous and disgraceful. But as Justice Kennedy observes in his opinion, “[t]his does not end the inquiry.” Every man and woman who has received a military award has first raised their right hand and sworn an oath to defend a sacred document: the Constitution of the United States.

The First Amendment to the Constitution protects every American’s right to speak freely, without fear of reprisal from the government. Because that right is vital to the functioning of our democracy and the “marketplace of ideas,” the Supreme Court has held that any law that restricts the content of speech must overcome “exacting scrutiny” to pass constitutional muster. For example, the court has held that Congress may pass laws that prohibit fraud and child pornography. In those cases, there must exist a “compelling government interest,” and the prohibition of speech must be the narrowest means by which the government can achieve its goal. In this case, all nine justices appear to agree that the government articulated a compelling interest in preserving the honor and distinction associated with military awards. The disagreement came down to whether the restriction of speech was the narrowest means through which that goal could be achieved.

The majority suggests that a more narrow law, such as one limiting criminal liability to those cases in which the imposter received some type of monetary benefit, would be Constitutional. The problem, as the dissent observes, is that such a law would fail to address those instances in which the imposter may not have realized any tangible gain, but nevertheless perpetrated an intangible harm on actual military award recipients. But is a law—is the restriction of liberty—the only way our society can prevent this type of harm? I must reluctantly agree with the majority by answering no. A better way to deal with the Xavier Alvarezes of the world is to call them out, loudly and publicly, in an approach Justice Kennedy refers to as “counter-speech.”

Returning to the child pornography example, it is obvious that counter-speech cannot address the harm inflicted upon the victims of child pornography. Only a law outlawing child pornography can achieve that goal. Admittedly the present case is a close call, but I think counter-speech can adequately address the harm imposters cause military award recipients. Perhaps the following true story will illuminate this point.

While walking through the Reno Airport, a group of Marine drill instructors spotted an imposter wearing a disheveled set of formal Marine attire known as “dress blues.” The drill instructors approached the man, quickly discovered he was a fraud, and engaged in some extremely effective “counter-speech.”  The Marines also captured the incident in photographs, and posted the images on the Internet. As of this writing, these images can be accessed, and commented on, by anyone with an Internet connection.

Also widely available on the Internet are the Medal of Honor citations, describing the unbelievable bravery of those who actually earned the award. The point is, we do not need to limit the First Amendment in order to honor real military heroes. Neither do we need laws to express our collective moral condemnation for the Reno Airport “Marine,” Xavier Alvarez, and anyone else who has the audacity to insult veterans by pretending to be one. We should always think long and hard before limiting the very freedoms that so many Americans have made the ultimate sacrifice to protect.

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2 comments

  1. That’s a great anecdote about the Marine drill instructors in the airport. Those guys have an eye for detail and the sharpest tongues in the world, and they will verbally annihilate anyone they perceive to be deficient, in this case some faker in need of some “counter-speech.”

    Trust me, you don’t ever want to be surrounded by senior Marine Corps NCOs, unless you’re in the midst of performing a combat mission with them.

  2. You could certainly see your skills in the paintings you write. The world hopes for even more passionate writers like you who aren’t afraid to mention how they believe. All the time go after your heart.

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