Stolen Valor Act ruled Unconstitutional

[Quantum Windbag]

Here is a for instance, a man uses his so called Military rewards, rank etc. to form an anti-war group that collects funds to support efforts on behalf of that group. The original group has credence lent to it due to the fact this person is impersonating Military personnel, rewards, etc . Still further, this person's gains position i.e. salary and benefits based on false representations. Those are just a few of the things one individual gained from impersonating Military personnel. It is no different than impersonating a Police Office, Fireman, etc. for the same exact reason(s) all of which are currently forbidden by law.

As to the 1st Amendment issue..

Schenck v. U.S.
The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" test:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

This case is also the source of the phrase "shouting fire in a crowded theater", paraphrased from Holmes' assertion that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

As a result of the 9-0 decision, Charles Schenck spent six months in prison.
Schenck v. United States - Wikipedia, the free encyclopedia

The reason why dishonorable person would misrepresent themselves as former Military or having rewards not given, battles not fought etc. is not a 1st Amendment issue is because it meets the test as well as the subsequent decision in Brandenburg v. Ohio

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. In particular, it overruled Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence.
Brandenburg v. Ohio - Wikipedia, the free encyclopedia

Misrepresentation incites lawless action in several way's some of which I mentioned above, the mere act of represneting yourself as a former Military Officer or enlisted person is in and of itself a lawless action. So while I am sure some have sympathy for the worthelss people that want to represent themselves as something they are not, in short, what they do is not only dishonorable, it should not be protected under the consitution.

That logic shows why you are not a judge. If your interpretation of Brandenburg applied Rev Wright would be in jail, as would thousands of other people. On order for speech to fall under Brandenburg it would be required that the incited action be imminent, which means that it would occur very quickly after the speech. The simple fact that you can imagine a possible connection between the speech and any subsequent criminal acts does not meet the standard of Brandenburg.

 

[Quantum Windbag]

Don't we disallow lying in other instances? File a false police report, that's a crime. Perjury? Crime. Falsifying certain records? Crime, etc etc. So are all lies in all situations now permissible?

Oh come on, CH - are you arguing the "all lies in all situations" should be criminally punished? I don't think so.

No lie is "permissible" in a MORAL sense. However, in a LEGAL sense, there are limitations. If I lie to someone in a social setting about my age or my weight, those are both lies, but they are not (nor should they be) punishable as crimes.

The decision in this case merely holds that this type of lie is not punishable as a crime.

LOL - You know that wasn't what I was saying. In fact it seems we're saying the same thing. not all lies are crimes, but some are, it's just a matter of where do we draw the line. As I said, I'm conflicted about whether lying about one's service record should be illegal.

Lying about one's service should be illegal, interesting concept, but it will never stand up to the realities of the world. Pentagon weenies routinely put themselves on lists for commendations they do not earn, one of the dirty little secrets of the military. Are you going to prosecute them?

 

[ConHog]

Oh come on, CH - are you arguing the "all lies in all situations" should be criminally punished? I don't think so.

No lie is "permissible" in a MORAL sense. However, in a LEGAL sense, there are limitations. If I lie to someone in a social setting about my age or my weight, those are both lies, but they are not (nor should they be) punishable as crimes.

The decision in this case merely holds that this type of lie is not punishable as a crime.

LOL - You know that wasn't what I was saying. In fact it seems we're saying the same thing. not all lies are crimes, but some are, it's just a matter of where do we draw the line. As I said, I'm conflicted about whether lying about one's service record should be illegal.

Lying about one's service should be illegal, interesting concept, but it will never stand up to the realities of the world. Pentagon weenies routinely put themselves on lists for commendations they do not earn, one of the dirty little secrets of the military. Are you going to prosecute them?

That's a whole nother kettle of corn since people who actually are under the UCMJ and are thus not quite entitled to all of the normal rights one thinks of when they think of rights.

Specifically in THIS instance

§ 907. Art. 107. False official statements

Any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.


This ruling will not affect that Article at all.

 

[Annie]

The first few news stories I read were about how off the judge was, but I couldn't find background on what had occurred.

Found this at TIME: Strandlof Case: Should Faking Military Honors Be Illegal? - TIME

They too said he didn't seem to want anything but respect. I'd question that, he went under false name. Claimed military record he didn't have. If not for the name change, which just seems goofy, I'd wonder if with his 'activism in veteran's affairs and local politics,' he might not try parlaying his 'military creds' with seeking office. What about job applications? Vets get points at most firms.

 

[Navy1960]

Here is a for instance, a man uses his so called Military rewards, rank etc. to form an anti-war group that collects funds to support efforts on behalf of that group. The original group has credence lent to it due to the fact this person is impersonating Military personnel, rewards, etc . Still further, this person's gains position i.e. salary and benefits based on false representations. Those are just a few of the things one individual gained from impersonating Military personnel. It is no different than impersonating a Police Office, Fireman, etc. for the same exact reason(s) all of which are currently forbidden by law.

As to the 1st Amendment issue..

Schenck v. U.S.
The Court, in a unanimous opinion written by Justice Oliver Wendell Holmes, Jr., held that Schenck's criminal conviction was constitutional. The First Amendment did not protect speech encouraging insubordination, since, "when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." In other words, the court held, the circumstances of wartime permit greater restrictions on free speech than would be allowable during peacetime.

In the opinion's most famous passage, Justice Holmes sets out the "clear and present danger" test:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

This case is also the source of the phrase "shouting fire in a crowded theater", paraphrased from Holmes' assertion that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

As a result of the 9-0 decision, Charles Schenck spent six months in prison.
Schenck v. United States - Wikipedia, the free encyclopedia

The reason why dishonorable person would misrepresent themselves as former Military or having rewards not given, battles not fought etc. is not a 1st Amendment issue is because it meets the test as well as the subsequent decision in Brandenburg v. Ohio

Brandenburg v. Ohio, 395 U.S. 444 (1969), was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. In particular, it overruled Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence.
Brandenburg v. Ohio - Wikipedia, the free encyclopedia

Misrepresentation incites lawless action in several way's some of which I mentioned above, the mere act of represneting yourself as a former Military Officer or enlisted person is in and of itself a lawless action. So while I am sure some have sympathy for the worthelss people that want to represent themselves as something they are not, in short, what they do is not only dishonorable, it should not be protected under the consitution.

That logic shows why you are not a judge. If your interpretation of Brandenburg applied Rev Wright would be in jail, as would thousands of other people. On order for speech to fall under Brandenburg it would be required that the incited action be imminent, which means that it would occur very quickly after the speech. The simple fact that you can imagine a possible connection between the speech and any subsequent criminal acts does not meet the standard of Brandenburg.

As you are not a judge as well, but like my opinion you are also entitled to yours. However having said that, I would qualify the mere fact that representing one's self as a member of the armed forces is in of itself lawless action and incites others to the same purpose.



Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Whitney v. California, 274 U.S. 357, overruled.

Brandenburg v. Ohio

The rest of the opinion is in bold for you, IMO likely to produce such action when someone commits fruad by represetning themselves as former Military and then while doing so forms a Vets organization that accepts funding based on that fruad rises to the test of " likely to produce such action". However as I did indicate above you are entitled to your opinion as well as I, and is that not what a court does in the end produces an " Opinion" on a case. If you use the standard that court members have the experience to do so, then that test fails as well based on the most recent appointment to the SCOTUS.

 

[Quantum Windbag]

As you are not a judge as well, but like my opinion you are also entitled to yours. However having said that, I would qualify the mere fact that representing one's self as a member of the armed forces is in of itself lawless action and incites others to the same purpose.



Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Whitney v. California, 274 U.S. 357, overruled.

Brandenburg v. Ohio

The rest of the opinion is in bold for you, IMO likely to produce such action when someone commits fruad by represetning themselves as former Military and then while doing so forms a Vets organization that accepts funding based on that fruad rises to the test of " likely to produce such action". However as I did indicate above you are entitled to your opinion as well as I, and is that not what a court does in the end produces an " Opinion" on a case. If you use the standard that court members have the experience to do so, then that test fails as well based on the most recent appointment to the SCOTUS.

Unlike you I can read. Brandenburg clearly says that for the government to be able to curtail my, and your, right to free speech they have to prove imminent danger, not just possible imaginary danger. Me claiming that I am an Air Force pilot and that I flew the Enola Gay is not going to cause other people to claim ridiculous stuff because most people are not crazy.

Maybe you should consider examining your own sanity if you think me lying about something will make you lie. you should definitely work on your moral character.

 

[Navy1960]

As you are not a judge as well, but like my opinion you are also entitled to yours. However having said that, I would qualify the mere fact that representing one's self as a member of the armed forces is in of itself lawless action and incites others to the same purpose.



Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Whitney v. California, 274 U.S. 357, overruled.

Brandenburg v. Ohio

The rest of the opinion is in bold for you, IMO likely to produce such action when someone commits fruad by represetning themselves as former Military and then while doing so forms a Vets organization that accepts funding based on that fruad rises to the test of " likely to produce such action". However as I did indicate above you are entitled to your opinion as well as I, and is that not what a court does in the end produces an " Opinion" on a case. If you use the standard that court members have the experience to do so, then that test fails as well based on the most recent appointment to the SCOTUS.

Unlike you I can read. Brandenburg clearly says that for the government to be able to curtail my, and your, right to free speech they have to prove imminent danger, not just possible imaginary danger. Me claiming that I am an Air Force pilot and that I flew the Enola Gay is not going to cause other people to claim ridiculous stuff because most people are not crazy.

Maybe you should consider examining your own sanity if you think me lying about something will make you lie. you should definitely work on your moral character.

First, let me say this, A. I don't engage in petty name calling with anyone on this board, nor do I call into question the abilities of others. B. If you wish to debate me on the merits of an issue then of course I would would be more than happy to do so. C. You know know nothing about me other than the fact I disagree with your assesment on the Case in which we now find ourselves debating. D. To resort to making accusations about a persons character because you cannot engage in a debate in an adult manner, is to abandon any clear logic in your side of the debate.

Having said that, perhaps you should go back and read the case once more as you seem to have stopped on the part in the Syliabus that said " imminent lawless action" and neglected to read on or choose not to. Obvioulsly you did not read the facts of the original case this thread was started over as well, otherwise you would not be embaressing yourself in such a manner. You mentioned the Enola Gay, okay let's say for example you did represent yourself as the pilot of the Enola Gay and started a Vets Organization that accepted funds based on the misrepresentation, that fraud is a lawless action. Further, if just one person takes from your example and repeats the same crime , they have been incited to the same lawless action. While you may disagree, you see the difference here is I did not call into question your character or resort to petty name calling and until such time as you can learn how to debate in an adult manner do not chooose to enage me in a debate.

 

[Toome]

Falsely claiming that one is a Purple Heart recipient in order to obtain a special license plate that permits one to park in city or state-funded parking lots for free is clearly a crime. Falsely claiming to be a wounded combat veteran in order to obtain state-funded assistance on a loan is clearly a crime. Falsely claiming to be a military retiree in order to get a 10% discount from a breakfast at IHOP may be a crime if the accumulated dollar amount meets the criteria for a misdemeanor or even felony. These are false statements made in order to obtain a service, privilege or other benefit.

But being a PX RANGER, that is, falsely claiming to be something but receiving no benefits, services, privileges or other entitlements, is not a crime. It may be unethical, morally wrong or tacky, but it isn't a crime. I think the judge was ruling along these lines. There has to be damage that can be measured or quantified. Emotions don't do that.

 

[ConHog]

Falsely claiming that one is a Purple Heart recipient in order to obtain a special license plate that permits one to park in city or state-funded parking lots for free is clearly a crime. Falsely claiming to be a wounded combat veteran in order to obtain state-funded assistance on a loan is clearly a crime. Falsely claiming to be a military retiree in order to get a 10% discount from a breakfast at IHOP may be a crime if the accumulated dollar amount meets the criteria for a misdemeanor or even felony. These are false statements made in order to obtain a service, privilege or other benefit.

But being a PX RANGER, that is, falsely claiming to be something but receiving no benefits, services, privileges or other entitlements, is not a crime. It may be unethical, morally wrong or tacky, but it isn't a crime. I think the judge was ruling along these lines. There has to be damage that can be measured or quantified. Emotions don't do that.

Which is why I am conflicted, from a constitutional standpoint, the judge was dead on, but from a moral standpoint some things might deserve their own provisions.

 

[mudwhistle]

Unconstitutional on what basis? I would think you would want to know that before commenting adversely on the decision.

OK - it would appear it is a First Amendment issue. This from the linked blog:



I don't have much respect for someone who would do something like this, but I don't think it is a criminal act. This makes a lot of sense:

Don't we disallow lying in other instances? File a false police report, that's a crime. Perjury? Crime. Falsifying certain records? Crime, etc etc. So are all lies in all situations now permissible?

Telling a lie is not a crime unless it involves other activities that make it one. If you tell your neighbor that you like him when you hate him can he charge you with a crime?

Telling a lie in some cases is a crime.

False advertisement is a crime, testifying under oath and giving false testimony is perjury....Libel and Slander are both crimes...swearing out a false warrant is a crime.

We're getting into slippery-slope issues here.

But when we're dealing with shit-for-brains back-stabbing LAWYERS...common-sense is usually secondary.

 

[Quantum Windbag]

First, let me say this, A. I don't engage in petty name calling with anyone on this board, nor do I call into question the abilities of others. B. If you wish to debate me on the merits of an issue then of course I would would be more than happy to do so. C. You know know nothing about me other than the fact I disagree with your assesment on the Case in which we now find ourselves debating. D. To resort to making accusations about a persons character because you cannot engage in a debate in an adult manner, is to abandon any clear logic in your side of the debate.

Having said that, perhaps you should go back and read the case once more as you seem to have stopped on the part in the Syliabus that said " imminent lawless action" and neglected to read on or choose not to. Obvioulsly you did not read the facts of the original case this thread was started over as well, otherwise you would not be embaressing yourself in such a manner. You mentioned the Enola Gay, okay let's say for example you did represent yourself as the pilot of the Enola Gay and started a Vets Organization that accepted funds based on the misrepresentation, that fraud is a lawless action. Further, if just one person takes from your example and repeats the same crime , they have been incited to the same lawless action. While you may disagree, you see the difference here is I did not call into question your character or resort to petty name calling and until such time as you can learn how to debate in an adult manner do not chooose to enage me in a debate.

First, I never engage in petty name calling. By the time I resort to name calling the person who receives it clearly deserves any name calling he get by focusing on petty issues himself and ignoring the real issues that are being discussed.

You are trying to argue that all cases of claiming military service are lawless, which means that they are not regulated or based on law. If they are lawless, as you are trying to insist, then courts would have no jurisdiction over them as they enforce laws. By continuing to use the wrong term you constantly negate your own argument, but I am sure it makes you feel intelligent to do so.

What I just explained is so that you will understand that I am not debating you on the merits of your position, because your position has no merit. I am mocking your position, and the person who holds it, because you do not even understand the position you are attempting to stake out well enough to debate it.

That said, fraud, which is what you are alleging happened here, is a separate issue from the Stolen Valor Act. The SVA only required that someone lie about military service and/or honors. If this guy committed fraud by setting up his charity they can prosecute him for that, but he cannot be prosecuted simply for telling a lie. That is the only issue that is relevant to this discussion, not the alleged fraud that you are trying to insist is the real issue.

Do you still want to debate based on the merits?

 

[Quantum Windbag]

Falsely claiming that one is a Purple Heart recipient in order to obtain a special license plate that permits one to park in city or state-funded parking lots for free is clearly a crime. Falsely claiming to be a wounded combat veteran in order to obtain state-funded assistance on a loan is clearly a crime. Falsely claiming to be a military retiree in order to get a 10% discount from a breakfast at IHOP may be a crime if the accumulated dollar amount meets the criteria for a misdemeanor or even felony. These are false statements made in order to obtain a service, privilege or other benefit.

But being a PX RANGER, that is, falsely claiming to be something but receiving no benefits, services, privileges or other entitlements, is not a crime. It may be unethical, morally wrong or tacky, but it isn't a crime. I think the judge was ruling along these lines. There has to be damage that can be measured or quantified. Emotions don't do that.

Which is why I am conflicted, from a constitutional standpoint, the judge was dead on, but from a moral standpoint some things might deserve their own provisions.

Play it safe, just go after the criminal actions and leave the moral ones to God.

 

[Quantum Windbag]

Don't we disallow lying in other instances? File a false police report, that's a crime. Perjury? Crime. Falsifying certain records? Crime, etc etc. So are all lies in all situations now permissible?

Telling a lie is not a crime unless it involves other activities that make it one. If you tell your neighbor that you like him when you hate him can he charge you with a crime?

Telling a lie in some cases is a crime.

False advertisement is a crime, testifying under oath and giving false testimony is perjury....Libel and Slander are both crimes...swearing out a false warrant is a crime.

We're getting into slippery-slope issues here.

But when we're dealing with shit-for-brains back-stabbing LAWYERS...common-sense is usually secondary.

And all of those crimes are covered by existing law. We do not need a lie that criminalizes lying if no other damage occurs as a result of that lie.