JURIST Guest Columnist David Hommel, St. John’s University School of Law, Class of 2014, is the author of the ninth article in a ten-part series from the staffers of the Journal of Civil Rights and Economic Development. Hommel discusses false identification of military personnel who have engaged in acts of valor and the Stolen Valor Act, which criminalizes these claims… Meet Xavier Alvarez. He stated that he played hockey for the Detroit Red Wings,

served as a police officer and even married a Mexican starlet. Then on July 23, 2007, Alvarez attended his first public meeting as a newly elected director of the Three Valley Water District Board in Claremont, California. He introduced himself as a retired marine for twenty-five years and a recipient of the Congressional Medal of Honor. However, Alvarez never played hockey, never served as a police officer, never married a Mexican starlet and never served in any branch of the US armed forces. Unfortunately, Alvarez’s lies about military service are not unique. Since the advent of military decorations, individuals have falsely claimed awards and honors reserved for those men and women who have actually engaged in acts of valor and heroism.

In 2006, Congress adopted the Stolen Valor Act § 704, which criminalizes false claims of military awards—verbal or written. In passing the law, Congress stated that fraudulent claims surrounding the receipt of military medals damages the awards’ reputation and meaning. In United States v. Alvarez, the US Supreme Court found that the Stolen Valor Act was unconstitutional under the First Amendment’s free speech protections. Justice Kennedy, writing for the majority, was of the opinion that lying alone without an accompanying action is insufficient to trigger a criminal penalty. For example, federal impersonation laws punish false claims when a person not only assumes the identity of an officer but also acts like one specifically within the jurisdiction of the three branches of the government. Without that caveat, it bears emphasizing that there could be a nearly limitless prohibition of false statements to any person, at any time and in any context. Accordingly, this limitation narrows the conduct to when the liar involves himself or herself in affairs directly within the jurisdiction of the executive, legislative or judicial branches and then makes a false statement or representation.

In light of the Supreme Court’s concerns, Congress amended the Stolen Valor Act in 2012 to target military imposters who intentionally obtain money, property or “tangible benefits” by falsely claiming to be recipients of military honors, including the Congressional Medal of Honor. Even under the revisions, the Stolen Valor Act remains problematic because the statute is still overly broad. Specifically, while the “money” and “property” provisions are clear, the “tangible benefit” language is particularly prone to conflicting interpretations because the statute fails to define “tangible benefit.”

A balancing test is necessary to determine what exactly qualifies as “tangible benefits.” In determining what constitutes “tangible benefits” under a Stolen Valor Act claim, the Attorney General, or a court, should consider: (1) The amount of financial or material gain; (2) how, if any, individuals were harmed to the extent that it is quantifiable; (3) if there is direct harm to an actual medal recipient; (4) whether the lie resulted in substantial injustice; or (5) the nature of the liar and the magnitude of the lie. Every one of these factors need not be established, and no one factor is dispositive. Let’s take each of these factors one at a time.

Financial or Material Gain

Of course, the more of a benefit you get, the more likely the results of the lie become a “tangible benefit.” In that regard, getting a few drinks at a bar is not substantial enough to rise to the level of a “tangible benefit” which would result in criminal conviction; however, if you are able to put that honor on a resume and secure a job, that should be actionable under the Stolen Valor Act.

Quantifiable Harm

The analysis must also consider what, if any, harm is posed by the lie—in other words, if there are any individuals who have suffered because of the lie. If we can pinpoint the harm and quantify it like in the Alvarez case, we can target the most reprehensible actors.

Direct Harm to an Actual Medal Recipient

If the true medal recipient was in the pool of possible recipients for the benefit and denied the possibility of receiving it because of an imposter’s actions, this determination might be a highly dispositive factor. For instance, a 10-year Marine Corps sergeant secured $66 million in security contracts under false pretenses (PDF).

Substantial Injustice

The presence of substantial injustice is highly probative when gauging whether something qualifies as a “tangible benefit.” You do not need “intent to defraud” under this formulation. Instead, this factor focuses on whether the receipt of the “tangible benefit” was directly related to an actual recipient’s failure to get the “tangible benefit.”

Nature of the Liar and Magnitude of the Lie

The analysis also turns on the magnitude of the lie and the proclivity of the particular individual to make false assertions. Without question, some lies are worse than others. Some may falsely claim military honors to gain credibility for a political campaign or just to brag at a bar and gain the attention of women. Moreover, if these individuals continue to make these false claims, they appear to be the most reprehensible actors who should be punished.

In sum, these factors should square with the legislative purpose of the statute—that is, to ferret out the worst actors and punish them. This test should provide a blueprint for the courts and the Attorney General to assess what qualifies as a “tangible benefit.” As discussed above, the analysis can focus on: (1) The amount of financial or material gain; (2) how, if any, individuals were harmed to the extent that it is quantifiable; (3) if there is direct harm to an actual medal recipient; (4) whether the lie resulted in substantial injustice; or (5) the nature of the liar and the magnitude of the lie. Therefore, it will be identifiable alongside the already-established “money” and “property” provisions of the statute.

David Hommel earned his bachelors degree from New York University, Gallatin School of Individualized Study. He is executive director of the Moot Court Honor Society and a senior staff member for the Journal of Civil Rights and Economic Development. He currently works as a law clerk for Goldberg & Connolly.

Suggested citation: David Hommel, Saving Private Ryan’s Valor: The Stolen Valor Act and Lies About Military Medals , JURIST – Dateline, Apr. 16, 2014, http://jurist.org/dateline/2014/04/David-Hommel-Stolen Valor Act-First Amendment.php.

This article was prepared for publication by Bethany Fisher, an assistant editor for JURIST’s student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org