Over-criminalization — bragging could land you in federal jail

For decades, it has been a federal crime to employ the mails, the phones, or other forms of interstate communication (pretty much any manner of communicating these days) to engage in or perpetrate a fraud on another person or other persons.  It is not the mere act of deceiving someone that causes the heavy hand of the federal criminal law to be marshalled against a person engaging in a misrepresentation, but the fact that he or she employs such “scheme or artifice” to defraud someone out of money or something of value; in other words, engaging in a scam to steal money from people.

In late 2006, however, former President Bush signed into law piece of legislation that goes far beyond even the extremely broad reach of the federal fraud statutes.  Under this 2006 law, a person in the United States can now be indicted, convicted and sent to jail for simply lying about something — not benefitting from it, not using a lie to take something from someone, but simply for telling a falsehood.  This law has in fact been used dozens of times since Bush signed it into law, despite its obvious First Amendment deficiencies.

The law carries the misnomer, the “Stolen Valor Act .”  Why “stolen valor?”  Because the law criminalizes the mere act of telling someone else that you had been awarded some sort of military medal when in fact you hadn’t.  As a zealous federal prosecutor in California opined recently, because the Congress has the authority under the Constitution to raise and support our millitary and to establish regulations for the organization and conduct of our armed forces, Congress can enact criminal laws to protect the “worth and value” of military medals that are authorized by Act of Congress.  Such elitist, overly-broad justification for ever-expanding federal criminal laws, is symptomatic of the over-criminalization of American society that is part and parcel of both the Republican and Democratic parties’ agendas (the “Stolen Valor Act” was passed unanimously by the Senate prior to going to Mr. Bush for his signature). 

If a person were to engage in a scheme to defraud people out of their money by claiming falsely to be the recipient of a military award, then that person can — and probably should — be prosecuted under existing fraud laws.  But to remove those other important elements of such an offense, and prosecute someone for simply bragging about being a military hero when they in fact aren’t, is substituting morality and pique for legitimate exercise of the law to protect against fraud-induced thievery.  Another federal prosecutor, who recently prosecuted a Utah man for lying about having received a couple of military awards, was quite frank about why he thought the law was a good one.  He said the law was necessary in order to punish “disrespect” for the militatry.  Hopefully, the federal courts, including the Supreme Court if necessary, will find that, based on the long history of First Amendment freedom in this country, such abuse of federal power will not be tolerated.

And, there are other troubling aspects to this law.  At least one member of Congress, Colorado Democrat John Salazar (one of the proud sponsors of the “Stolen Valor Act”), for example, is using it as a rationale for creating yet another government database.  Salazar is attempting to appropriate taxpayer funds for a national database of recipients of military awards, to make it easier to track and prosecute cases under the 2006 law.  This is getting out of hand and needs to be stopped.  Unfortunately, neither of our status quo political parties nor either house of the Congress seems willing to stand up for the Bill of Rights on this one, and it appears our only hope lies in the courts to strike the right balance by striking down the “Stolen Valor Act.”

53 comments Add your comment

Captain America

February 19th, 2010
6:37 am

Kudos for getting back on the libertarian wagon after falling off it so badly yesterday. Try and stay dry Bobby.

Karl Marx

February 19th, 2010
6:43 am

Don’t you mean Loonatarian?

Ace

February 19th, 2010
8:01 am

The teabaggers are being duped out of their votes by the wealthy old guard. Getting them incited over taxes that aren’t going to change for the majority of the baggers. The uppers are the ones who may incur taxes that that paid before,not new on top of their mega incomes while the rank and file are played like a cheap banjo. Ga is run by so called conservatives on look at our mess, Purdue raises taxes and where are the baggers? Sounds like these leaders should be the ones in jail for the same ole lame story of “make me rich, maybe I’ll throw you a bone”. Dunces.

Joel Edge

February 19th, 2010
8:12 am

I only take exception to one part-the headline. It should be- lying could land you in federal jail. Not all that unusual. Just try lying on your taxes. Even though Harry Reid says it’s voluntary. Bragging is still legal.

Ragnar Danneskjöld

February 19th, 2010
8:33 am

Well-argued, symptom of a nanny government. I would urge abolition of the entire Federal criminal code, leave the police function to the individual states. And reserve the war authority, and retribution function arising from same, with the Feds.

jt

February 19th, 2010
8:36 am

I could stomach a “Stolen Valor Act.”,,,,,,,if we had a “Politician Lying Act”.

Guilty politicians would be sentenced to digging latrines where ever they sent our soldiers to fight.

Until the end of the conflict.

david wayne osedach

February 19th, 2010
8:40 am

The “Stolen Valor Act?” I wonder how many times it has been applied mis-appropriately?

ugaaccountant

February 19th, 2010
8:42 am

I agree there’s a big open issue of lying in general that has 1st amendment implications. But Congress can and probably should crack down on specific known abuses like this so that anyone engaging in fraud/con-artistry can easily be convicted.

In the strictest interpretation of what your saying above, yes I support a law against claiming to be a military hero if you’re not. I’m not a big fan of fraud as a freedom of speech issue.

neo-Carlinist

February 19th, 2010
8:53 am

I gotta ask; where do the “swift boaters” fall under this proposed legislation? they didn’t “steal” John Kerry’s “valor” so much as they described it as cowardice (for the record, I didn’t vote for Kerry OR Bush). This is just another example of “law” for the sake of maintaining the illusion that the gub-ment can administer justice. Fraud is fraud.

Scout

February 19th, 2010
8:59 am

Mr. Barr:

As one who has served I agree with you on this one and hopefully the Supreme Court will sort it out. However, if one “wears” that medal ……….. throw the book at them !

Scout

February 19th, 2010
9:01 am

P.S.

One caveat here. You can’t “tell” someone you are a federal agent (even if you are not gaining anything from it at the time). That’s impersonation. The Supreme Court just could uphold this new law.

Corey

February 19th, 2010
9:03 am

Enter your comments here

Joe 6-Pack

February 19th, 2010
9:09 am

Hell, how about a “Broken Promise Act” for politicians, professional golfers, and late night TV hosts?

How ’bout a “Insult To The Intelligence Act” for newspaper columists and talking heads on TV?

And, a “Illegal Use Of N-Word Act” for rap and hip-hop ‘music’?

Come to think of it, we can solve this whole dang buget crisis with a new tax, the “Impure Thought Tax” assessed whenever anybody buys or rents porn, or dates an intern, or confesses they have lust in their heart for a Denny’s waitress.

sane jane

February 19th, 2010
9:11 am

Speaking of bragging, how about Dick Cheney confessing to war crimes on ABC to Jonathan Karl?

Despite being a lib and legit Cheney-hater, I haven’t been screeching to see him prosecuted. But if he’s going to get on TV and sneer about supporting waterboarding, isn’t he basically daring this administration to do so?

Hey ragnar, long time! What’s your take on this?

The Barr Tab

February 19th, 2010
9:21 am

Come on Bobby, If a Broker lies to a client and it costs them a good portion of their lifes savings(i.e. Bernie), shouldn’t they be punished for a type of stealing/thief. I think I got shorted on the alcohol volume of the last drink I just ordered. That too should be a crime Bobby.

Scout

February 19th, 2010
9:23 am

Seriously folks, this all started with the very dangerous “hate crimes” legislation ………. punishing for what people think as opposed to their acts.

Slippery slope !!!!

Katie Barr the door

February 19th, 2010
9:25 am

I’m with you B.B.. I’d hate to see the entire Senate and House go to jail.

John OTC

February 19th, 2010
9:32 am

I’ve received several medals. Somebody, call the police! If I get arrested BB, I want you to write about it until I’m free.

Liars Bizarre

February 19th, 2010
9:55 am

I ain’t lyin’. I caught a 5 foot long catfish once. I ain’t lyin’. I nailed over 100 chicks in college. I ain’t lyin’. I wrote material for a Robin William’s 2002 HBO special. I ain’t lyin’.

I did everything that none of you liars never dreamed of not lyin’ about and I…. Ain’t…. Lyin’.

I ain’t lyin’.

PW

February 19th, 2010
10:38 am

I have been in the Army for 18 years now, and I couldn’t care less if some schmuck wants to build himself up by lying about military medals. If that helps him hook up with some booze hag at the bar, more power to him.
As said, if he were to get anything financially out of it, that is just plain theft and deceit which should be punished.

Lonely hearts club

February 19th, 2010
10:41 am

You don’t suppose that booze hag has an older sister for me, do you?

My F150is dirty

February 19th, 2010
10:43 am

Nevermind all that. Lets lock up anyone who uses the word teabagger-war crimes, or racist, more than once a week. If they suggest a person votes against their own interest, make them stand before a death panel.

Not a big Sara P fan, but her death panel remark will go down in history-helped end the career of the community organizer.

Haywood Jablome

February 19th, 2010
10:47 am

Ragnar,
Good idea. That way here in the South we can lock up all the lacks before they commit crimes.

neo-Carlinist

February 19th, 2010
10:52 am

F-150, agreed, but you have to add “teleprompter” and “community organizer” to the list of banned words (neo-Carlinsts will appreciate the pun).

Reality

February 19th, 2010
11:29 am

Ah, yes…. GW Bush. He is like herpies – the gift that just keeps on giving.

scrappy

February 19th, 2010
11:29 am

There are sooo many things that are over-criminalized, this is just the tip of the iceberg. Think about how much taxpayer money is wasted in the court system and in the jails by criminalizing everything. And we wonder why the state and fed are always over budget?
I wish a political adviser would find out a way to convince people that voting for someone who is ‘tough on crime’ is also voting for higher taxes and larger deficits. Voting for someone who is realistic about criminal prosecution is always the better choice.

nathan hale

February 19th, 2010
11:40 am

The Tea Party speaker actually called for the hangin’ of a Democrat. ANd the audience ROTFL!!!

The Tea Party is going to go too far one day, and we’ll have to ask them if they want one lump or two.

Person with a Memory

February 19th, 2010
12:47 pm

Hmmm … when Reagan got up and (of course, falsely) claimed that he was with the troops who liberated the death camps, could he have been prosecuted under this law?

emo

February 19th, 2010
12:51 pm

Once again Bob stands up for a military he wouldn’t be caught dead in. Bob, for everything Bush did that you disagree with, remember you helped elect him with your work as a “case manager” in Congress…

ICE Beer is 5.5% and cheaper too

February 19th, 2010
1:09 pm

This place gets worse by the day.

David Zoeckler

February 19th, 2010
1:24 pm

over-crimilization of America; Dead on! I am so proud to know that my tax dollars are being spent to prosecute these horrible criminals. hey I know a few VFW posts they could raid, no telling what lies them old veterns are telling one another.

Jon

February 19th, 2010
1:24 pm

What if they claim medals and are Wiccan? That would make the Stolen Valor law okay by your standards, right, Bob? Even if there’s no attempt at profit?

IceDaddy

February 19th, 2010
1:48 pm

I’m guessing “General” Larry Platt has gone into hiding after hearing about this. Feel free to wear your pants on the ground.

A T W

February 19th, 2010
2:33 pm

It’s not just a First Amendment issue. Criminal law requires both an intention (mens rea) and an act (actus reus), simultaneously, to constitute a crime, and for very good reason, since otherwise bad intentions alone, or unintentional or involuntary acts alone might be crimes. That’s why spouting off about whatever you want, bragging, and even lying, isn’t a crime in the law until and unless you actually DO something with your words: cheat someone, or steal, or damage property, etc – that is, commit fraud.

This law is alarming and unconstitutional (because no process is sufficiently Due Process that results in criminal convictions for thought-crimes), regardless of whether the First Amendment protects lies or not.

William

February 19th, 2010
2:38 pm

Wow, lying illegal, a federal crime? We will need to build more prisons to hold all the progressive liberal liars. What a multitude!
Obama leading the cellmates! Remember all his lies?
Al Gore and cimate change?
PETA? That is just a few. Lets hear from you conservatives about all the liberal organizations and leaders who have lied for profit and political clout. The EPA!

Hillbilly Deluxe

February 19th, 2010
3:11 pm

I’m not a big fan of fraud as a freedom of speech issue.

Me either.

Mrs. Norris

February 19th, 2010
3:42 pm

I’m a cat.

John OTC

February 19th, 2010
3:46 pm

Hillbilly Deluxe

February 19th, 2010
3:59 pm

NO YOU’RE NOT!!!! :lol:

Greg in the Highlands

February 20th, 2010
3:55 am

I don’t have the money, corporate influence, social status or connections to even dream that any of our government officials would even respond to any my concerns. It’s time to give it up America. We no longer have a say in our government.

Matt Sissel

February 20th, 2010
9:42 am

“Congress can enact criminal laws to protect the ‘worth and value’ of military medals”

Should I be prosecuted for throwing a medal away and telling people that it isn’t that meaningful?

Scout

February 20th, 2010
12:06 pm

Talking about “big brother” ………..

I always knew this was true !!!

http://www.youtube.com/watch?v=8CtjhWhw2I8

[...] Bob Barr Atlanta Journal-Constitution [...]

Liver Lip

February 21st, 2010
10:39 am

WHO REALLY CARES?????

gadem

February 21st, 2010
11:41 am

Now I found this article on the NY Times…very interesting. Although I don’t agree with the actions of Mr. Stack, I do believe that he had a valid gripe. Where was Mr. Stack’s representation? Mr. Barr what can be done about the Tax Laws? Although taxes are necessary, they do add undo burden to us, the tax payers. Why not legalize marijuana and add a sin tax to that too…stop spending money on jails for criminals that run around with weed that will eventually lead them to bigger crimes because they have a drug conviction. Insanity…insanity…

gadem

February 21st, 2010
11:42 am

MrLiberty

February 21st, 2010
12:53 pm

And yet lying by government officials is how they get reelected, con people into confessions, get legislations supported by the public, and con a majority of the population into supporting the killing of hundreds of thousands of innocent citizens. No consequences for them.

Good job by the way Bob for calling waterboarding what it is – torture and illegal. The scum who booed you at CPAC have gallons of blood on their hands for the criminal wars they continue to support and the immoral behavior they promote and condone.

nathan hale

February 21st, 2010
6:06 pm

Prison terms for lying?

Windows 7 was my idea.

Jail is too good for those morons.

budman

February 22nd, 2010
10:50 am

” I did not have sexual relations with that woman” Yea ! that’s when the rules were changed..

Dai Uy

February 22nd, 2010
8:04 pm

According to Mr. Barr, it can’t possibly be a crime unless it involves taking something of monetary value. Love, honor, respect and integrity are of no value. What a sad world to live in.