Stolen Valor Act Found Unconstitutional by Colorado District Court Judge

The Stolen Valor Act expands the protections of section 704 to make it
crime to

falsely represent[] [oneself], verbally or in writing, to have
been awarded any decoration or medal authorized by
Congress for the Armed Forces of the United States, any of
the service medals or badges awarded to the members of
such forces, the ribbon, button, or rosette of any such badge,

Now, finding the Stolen Valor Act "facially" unconstitutional (opinion here), a Colorado U.S. District Court judge struck it down in the case of Rick Strandlof a/k/a Rick Duncan as set out here:

Strandlof, 32, was charged with five misdemeanors related to violating the Stolen Valor Act - specifically, making false claims about receiving military decorations.

He posed as "Rick Duncan," a wounded Marine captain who received a Purple Heart and a Silver Star. Strandlof used that persona to found the Colorado Veterans Alliance and solicit funds for the organization.

The ACLU argued that "simply lying" is a form of free speech protected by the First Amendment to the Constitution.

This "bar lies" argument has been seen before

Stolen Valor Act facing legal challenges:

At issue is a 3-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory.

Attorneys in Colorado and California are challenging the law on behalf of two men charged, saying the First Amendment protects almost all speech that doesn’t hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.

Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself.

“Half the pickup lines in bars across the country could be criminalized under that concept,” he said.

Yes, Professor Turley, but in both the case of the "bragging pickup line" and the "stolen valor" even in the absence of "financial gain" the intention is to get something that might not be attainable if the truth about the liar was known.

People don't just start wearing medals they didn't earn because they like the pretty colors. They get some gain out of it.

An exhibitionist who flashes his wares in public rarely gets a financial gain out of it either, but it is generally not considered "protected speech" even by law professors.

This is not the same as a sports fan wearing a team or player jersey to show support. It is highly unlikely that the sport fan will be thought of as a member of the team or identified as the player himself.

This also is not the same as an actor donning various badges, medals and ribbons for a role or even to someone playing "dress up" for a costume party in that presumably neither the actor nor the costume wearer is making the fraudulent assertion that he is entitled to wear such badges, ribbons and medals because he was awarded them or earned them.

Further, Professor Turley, to compare the fraudulent wearing of the trappings of valor to "pickup lines" in a bar demonstrates a special sort of arrogant ignorance and a true disregard for the men who really earned such medals defending your First Amendment rights.

As Professor Volokh stated:

The boundaries of the “false statements of fact” exception to First Amendment protection are not well-defined. There is indeed such an exception, and it is not limited solely to defamation and fraud: It covers many kinds of false statements of fact, including false light of invasion of privacy, intentional infliction of emotional distress through false statements (even when the statements are not defamatory), trade libel, perjury, unsworn false statements of fact made to government officials, and falsehoods that are likely to lead to physical harm. And while some of these statements are not only false but very harmful (libel is the classic example), others are considerably less harmful: Consider, for instance, false statements that are not defamatory but that place someone in a false light.

But some false statements of fact are immune from liability, even if they are knowingly false. This is most clearly true for knowingly false statements about the government, but also probably true for knowingly false statements about broad historical, scientific, or current-events controversies, such as the Holocaust or global warming. And the Court has never articulated a clear rule for which knowingly false statements of fact are constitutionally protected and which are not.

Yet while there is no general well-settled rule for which knowingly false statements of fact are constitutionally unprotected, punishing false statements of fact about one’s own medals seems to be constitutionally permissible, because the reasons for protecting some knowingly false statements of fact do not apply to such lies. In particular, because such claims about having gotten a medal are so objective and verifiable, punishing false statements in this field is especially unlikely to deter true statements.

Finally, the Court in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), has made clear that some content discriminations within unprotected categories of speech are unconstitutional because they pose the risk of viewpoint discrimination. But the Stolen Valor Act does not pose such a risk, and seems likely to fit within one of the exceptions the R.A.V. court identified.

Here's his take on this decision:

I found the opinion to be quite thoughtful and interesting, but I ultimately wasn’t persuaded (despite the recent United States v. Stevens precedent, on which the court heavily relies). The court’s theory seems to suggest that, while fraud is constitutionally unprotected, attempted fraud is protected, at least so long as no-one who relied on the attempted fraud can be identified. And it also seems inconsistent with the Court’s acceptance of false-light invasion of privacy claims — see my brief for more details on those cases — which rest neither on a specific well-rooted false light invasion of privacy exception nor on any plausible judgment that the false light tort passes strict scrutiny

The District Court found that the statute's lack of need to prove that the lie caused harm troubling:

The principal difficulty I perceive in trying to shoehorn the Stolen Valor Act into
the First Amendment fraud exception is that the Act, although addressing potentially
fraudulent statements, does not further require that anyone have been actually mislead, defrauded, or deceived by such misrepresentations.(footnote omitted)

Under this view, it appears someone who actually parted with money to support Mr. Strandlof's alleged veteran's organization in reliance on his lies about his personal military awards could bring a civil fraud suit against Mr. Strandlof, but the government may not step in to protect the public from such a fraud by making it a crime to lie about receiving military awards in furtherance of such a fraud.

We'll see this on appeal.

Now, if I were to wander out in the street wearing the medals shown below, am I entitled to them or am I merely exercising my "free speech" rights?

Will we be able to trust any medal wearing person again?

There's the harm, judge, there's the harm.