Virginia District Court Finds Stolen Valor Act Constitutional

District Judge James Jones, ruling in the Western District of Virginia, Big Stone Gap Division ruled that the SVA is constitutional.

In a concise ruling, he found:

Preventing individuals from wearing honors they did not earn furthers a substantial government interest in honoring specified members of the military and preserving the respect and novelty of legitimate military decorations. The statute’s purpose is not related to the suppression of free speech, and incidental restrictions on freedom are no greater than is essential for the furtherance of that purpose.

The story of Ronnie L. Robbins is like so many before it:

[The Indictment] alleges that Robbins served in the United States Army on active duty from 1972 to 1975, but did not serve overseas or in any combat capacity and was not awarded or entitled to any medals or awards related to such service.2 The Indictment charges that Robbins was a member of the Veterans of Foreign Wars (“VFW”), which requires that its members have overseas service in a foreign conflict. While running for reelection to local political office, Robbins produced and distributed campaign material that stated that he was a recipient of the Vietnam Service Medal and the Vietnam Campaign Medal. Robbins also wore the Vietnam Campaign Medal, the Vietnam Service Medal, and the Combat Infantryman’s Badge on his military uniform at events he attended as a member of the VFW honor guard. Additionally, Robbins allegedly provided falsely altered documentation to the VFW misrepresenting his military service and asserting that he had been awarded the Vietnam Service Medal and the Vietnam Campaign Medal. Finally, it is alleged that Robbins provided altered documents to a local newspaper corroborating that he had received those medals.

Naturally, POW Network was all over this clown:

Claims COVERT OPS, Vietnam service, Vietnam combat awards. May be using multiple DD214’s – that do NOT match military records. Prior campaign materials note Vietnam awards NOT in records. Has shown off a VA card that list a percent of disability on it. Wore Vietnam Service Medal on Confederate uniform on the 4th of July parade in Clintwood.

Of course he was lying because he was running for office, not picking up chicks in a bar, but he was also defrauding the Gov’t:

ROBBINS was charged Nov 20th with two additional charges both felonies. Robbins was also charged with making fraudulent claims when he filed for his VA Disability Pension. He received 100% stating he was suffering from nightmares and flashbacks. Robbins was also charged with using US Mail to file the claim. Total of twenty five years plus fines. Dickenson Star ran the story last Wednesday. Also the trial was put off until Feb 2-3 2011.

Anyway, back to the ruling. Noting the Strandlof and Alvarez decisions, the judge approached them head on:

While the defendant naturally urges me to follow these decisions, I respectfully disagree with them, and find that the false statements of fact implicated by the statute are not protected by the First Amendment.

The judge creates a further classification of speech into two categories: “speech that matters” and speech which does not. He gets to this from the ruling in Gertz:

One of the recognized categories involves falsity. While “there is no such thing as a false idea” undeserving of protection, [Gertz] “there is no constitutional value in false statements of fact.”

Although the declaration in Gertz was made without citation and was recognized as dicta by the Supreme Court in Milkovich v. Lorain Journal Co. since Gertz, the assertion that false statements of fact are not protected has been repeated and relied upon and is now the prevailing understanding of the law.

On the other hand, despite the assertion in Gertz that false statements are valueless, the Court did not intend to exclude all false statements from the protection of the First Amendment: “Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate.” Gertz. “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” Id. at 341. Therefore, Gertz stands for the proposition that false statements of fact are generally unprotected, but some speech — “speech that matters” — is protected.

For these reasons, the relevant rule in this case is that false statements of fact are generally unprotected, aside from the protection for “speech that matters.”

Noting that “[i]t is a long-held canon of construction that a statute should be read, if reasonable, to avoid constitutional problems”, Judge Jones concluded that:

The government concedes that the statute should be read to criminalize only knowingly false statements. I conclude that the statute also should be read to include a mens-rea requirement that the defendant intended to deceive.

Finally, the judge addresses two final arguments made by those like Professor Turley:

First, and perhaps most importantly, as interpreted it is unlikely to have a chilling effect on legitimate speech. The statements at issue are made about oneself and are easily verifiable using objective means. There is no risk of stifling opinions or true statements. Additionally, the speakers targeted by the law do not advocate any particular political or cultural viewpoint or question prevailing dogma or beliefs about any historical or scientific issue. Therefore, the justification that some false speech strengthens and clarifies the truth is inapplicable. There is no room for debate on such an easily verifiable fact when the speaker speaks with knowledge of his statement’s falsity and with the intent to deceive. Moreover, there is no likelihood that a political majority would be able to use the law to censor legitimate speech or discriminate based on a particular viewpoint. This is not the sort of regulation that threatens to suppress particular ideas. See R.A.V., 505 U.S. at 390 (finding speech outside of constitutional protection where “there is no realistic possibility that official suppression of ideas is afoot”).

And:

The majority of the panel of the Ninth Circuit expressed concern that the constitutionality of the Stolen Valor Act would permit the criminalization of lying about such matters as one’s weight or age or smoking habits. Alvarez, 617 F.3d at 1200. Although I share the judges’ concern about potential, albeit unlikely, government intrusion into such private behavior, the Constitution’s privacy protection would better apply to prevent a slide down that slippery slope towards regulation of wholly private interactions.

Now, of course this will likely be appealed, and frankly I hope it is. Together with the upcoming McManus trial I expect it will end up with a showdown between the 4th and 5th Districts which found it Constitutional and the 9th and 10th which did not. Can’t wait to see what the Supreme Court does on this one.