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


February 22nd, 2010
9:28 pm

Military medals should be protected under law. No question about it.

Navy Diver Bill

February 23rd, 2010
11:30 am

The situation driving Barr’s column was recently manifested by some a@@hole in Houston named Patrick McManus who showed up at the election party of their new mayor dressed in the mess dress uniform of a US Army Brigadier General wearing every US military decoration for valor EXCEPT the Medal of Honor and around his neck the Commander of the British Empire medal.A pathetic wannabee and confirmed pathological liar-he was really an Army PFC in the 80s-never went anywhere, never did anything.The worst thing is that nobody there picked up on the fact that he was as fake as an 87 dollar bill! And he even had a goatee!!(The services currently do not allow beards.) Enough concerned veterans, concerned citizens and disgusted FBI men finally arrested this bum. One person in a blog put it very well and it cuts to the quick, even against Barr: “Don’t these people realize that it is SHAMEFUL to wear medals and awards that you didn’t earn?”Unfortunately, these days a lot of people don’t seem to have any, or even know the meaning of the word. The best thing is that somebody had a “counselling session” with him and his head was bandaged when he was arrested. Good, but he said he “misplaced” the offending uniform. A pathologiocal liar.


March 3rd, 2010
7:48 am

Some folks value honor over money. Funny that you pick the one action that W made that may have a speck of honor in it to criticise.