Restolen Valor?

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Honor is a big deal in the military. Valor is even bigger. Recognition of such bravery is the high point of many soldiers’ careers. “A soldier will fight long and hard,” Napoleon aptly observed nearly two centuries ago, “for a bit of colored ribbon.”

But what if that bit of colored ribbon is fake? And the person wearing it a fraud? Boasting about such unearned decorations has been a federal crime for the past four years — punishable by up to six months in prison — until a federal appeals court, ruling the law violates the First Amendment’s right to free speech, threw it out last week.

There are more martial fakes — boasting about military service they have never performed, and medals they have never won — than you might think. For every real Navy SEAL, the FBI has estimated there are 300 imposters. There are twice as many living fake winners of the Medal of Honor as there are genuine ones.

This idle boasting ticks some folks off so much that there’s actually a cottage industry trying to track down faux fighters. Many of them have a chestful of never-earned medals and decorations. One of the leaders in fighting this kind of rip-off is B.G. Burkett, who co-wrote the 1998 book, Stolen Valor, which remains in print and is the go-to volume for anyone interested in such ungrand larceny.

His book details how many so-called Vietnam veterans convicted of crimes had never served in Vietnam, or in the military, for that matter. Yet the overwhelming majority of those who served honorably and well seemed to drain down the nation’s memory hole, leaving only a bathtub ring of scum behind. “The only people getting the press,” Burkett told me when his book was published, “are not even just the bad guys, but they’re the phony bad guys.” And many had boasted of their fictitious military commendations.

Burkett and others pushed for, and got, Congress to pass the Stolen Valor Act in 2006. The law made it illegal to lie about being a military hero (wearing medals has been against the law for a long time, but claiming to have won them — speech, in other words — has not). “The significance of these medals is being devalued by phony war heroes who fabricate their honors and military careers,” Rep. Jim Sensenbrenner said when the act was being debated in the House. Then-Sen. Conrad Burns, R-Mont., concurred. “I am disturbed by stories of these despicable frauds who have tried to falsify heroic military records,” he said on the Senate floor. “This type of lie strikes at the very heart of the honor of our military and our nation.”

But last Monday, Mar. 21, lost amid the news from Libya and Japan, the 9th U.S. Circuit Court of Appeals in Los Angeles threw out the Stolen Valor Act. The majority contends that under the First Amendment, we all have a Constitutional right to lie, even about military service we never served, and honors we never earned.

The synopsis of the case, from the majority ruling by Judge Milan Smith, an appointee of George W. Bush:

Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” With the exception of “I’m still around,” Alvarez’s statement was a series of bizarre lies, and Alvarez was indicted and convicted for falsely claiming that he had been awarded the Medal of Honor.

(NOTE TO FAKE MEDAL WINNERS: Those who earn them don’t talk about them.)

In a concurring opinion, Chief Judge Alex Kozinski, a Reagan appointee, said punishing fake veterans for boasting about their bogus medals would send the nation down a slippery slope:

If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny,” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as “rational basis review.”

Not every judge on the circuit saw such dangers. Seven of the 26 dissented. In his, Judge Diarmuid O’Scannlain, a Reagan appointee, wrote:

…the right to lie is not a fundamental right under the Constitution. For nearly forty years, the Supreme Court has made this much abundantly clear…As an initial matter, most of the “lies” that Chief Judge Kozinski postulates are not false statements of fact whatsoever. They are opinions (“Gee you’ve gotten skinny;” “She’s just a friend;” “I just haven’t met the right woman;” “I’m sooo lucky to have a smart boss like you;” “I had too much to drink;” “You’re the greatest living jurist”); expressions of emotion or sensation (“I love opera;” “But I love you so much;” “It’s not you, it’s me;” “My back hurts;” “I’ve got a headache”); predictions or plans (“[I]t won’t hurt a bit;” “I’ll call you about lunch”); exaggerations (“We go way back”); and playful fancy (“There are eight tiny reindeer on the rooftop”)… Like a Hollywood horror film, Chief Judge Kozinski describes a fictional world that may frighten, but which is far removed from the one in which we actually live.

The government hasn’t decided whether to appeal.

Ever since 9/11, the nation has felt some degree of guilt over waging two wars without paying for them or having a draft. That’s why the folks we send to fight in our name we now hail not as soldiers — perhaps the most honorable of military titles — but as war-fighters, and warriors. Along the same lines, many Americans are so awestruck by real, medal-wearing heroes — largely because such intrepidity is absent from their own lives — some say they over-react when it comes to preserving their special status by criminalizing those who falsely boast of having won medals.

The poor saps telling such fibs are like those cruel zealots who belong to Kansas’ Westboro Baptist Church — a name that desecrates a Topeka neighborhood, an honorable religion and a house of worship. Those belonging to both groups only have an impact because of the ears that hear what their mouths utter. Like a tree falling with no one to hear it, the boasts and hate speech of fake soldiers, and the falsely devout, only count if we react to them.

Burkett, the author of Stolen Valor and a Vietnam vet, says of the court “I understand where they’re coming from, Constitutionally.” But he’s still upset. “If you stop and think about it, our guarantees are under the Constitution, which is just kind of a hope list,” he says. “The guarantors are the men and women in uniform who are willing to pick up a weapon and stand in the face of our enemies. When you start diminishing their status — by allowing these individuals to falsely claim military service — it damages the nation.”

The Supreme Court recently upheld the right of that so-called church to hold signs saying “God hates fags” at the funerals of U.S. troops. Now a lower court has also ruled in a more absolutist manner than many Americans might prefer. But others would note that backing free speech — but only when you embrace its content — is fake free speech.