LEGAL BRIEFING - Protected speech or stolen valor?

Advertisement

Dear John,

A few buddies and I were hanging out and tipping back a few the other day. We were talking about the Osama bin Laden anniversary. One of my buddies said he was a member of the Navy's SEAL Team 6 and took part in the mission that took him out. Well, I took offense at that. We have a lot of brave men and women over there in harm's way, and I don't think it is right to even kid about that sort of thing. He and I got into quite an argument. At one point I thought we would have to take it outside, if you know what I mean. I think he should be arrested for saying stuff like that. Can he?

Sincerely,

Patriot Pete.


Dear Patriot,

In December 2006, the Stolen Valor Act made it a misdemeanor to "falsely represent oneself as having received any U.S. military decoration or medal." The penalty can be six months imprisonment or a year if the claim is for the Medal of Honor.

The first question would be to determine whether the law applies.

The law applies to medal and decorations. Is there a medal for this mission? It was classified. Perhaps, there is one but whether it exists is not available to the public. If there is, then the law seems to apply.

The right of free speech has a long history of allowing people to say things in jest. It is when a person crosses the line into actually attempting to portray a false claim as true that penalties can be assessed. The next question to ask would be whether your friend was trying to make a joke or make a statement that he wanted you to believe was true.

The third inquiry would be to attempt to determine what he intended to gain from his statement. If he intended to make people laugh, even if unsuccessful, he is probably not in jeopardy. If he was trying to anger people by his statement, he also is probably OK because a reaction of anger is probably an indication that every listener believes the statement false and is reacting to the outrageousness of the claim rather than the substance of the utterance. After all, many people in the U.S. would probably be thrilled to meet a member of that team.

The truth is always a defense to an accusation of a false statement. Therefore, if your friend can prove that he was actually a member of that team, he is not subject to punishment for his claims. Ironically, the information about the mission is classified. It would probably get him in more trouble to actually reveal his participation than it would to falsely make that claim. He would be subject to punishment for leaking classified information, which carries harsh penalties, including death depending on the circumstances.

The people who took part in this mission are all highly trained and well-disciplined. They are generally people who do not brag about their accomplishments, especially classified ones.

Therefore, it seems reasonable to assume that a person who makes this type of claim assumes that the audience members know it is false and that there is not penalty for saying it.

Good luck to you,

John

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have a question? Ask John at askjohn@wwub.com.

Comments

Use the comment form below to begin a discussion about this content.

Sign in to comment

Click here to sign in