Samuel Johnson said every man thinks meanly of himself for not having been a soldier. This seems to hold true even today, given the propensity people have of concocting false stories about military service and awarded medals. It turns out that there is a law prohibiting this, and the Supreme Court is now considering whether that law is Constitutional.
Because of the Stolen Valor Act, which was passed in 2006, it a federal crime to “to falsely represent oneself as having received any U.S. military decoration or medal,” and offenders can be sentenced to up to a year in prison. The current legal challenge, United States v. Alvarez, argues that such lies fall within one’s free speech rights.
One thing that the Justices seem divided on is whether false claims to honor cause any “harm,”or whether it is important to the “public interest” that such lies be discouraged. Taking up the perspective inclined to answer “no” to these questions, Justice Sotomayor challenged the prosecution, asking:
“So outside of the emotional reaction, where’s the harm? . . . And I’m not minimizing it. I, too, take offense when people make these kinds of claims, but I take offense when someone I’m dating makes a claim that’s not true.”
On the other side, reports suggest that Justice Scalia favors the Constitutionality of the law, commenting at one point that “there’s harm to those courageous men and women who receive the decorations. Their service is demeaned when everybody says, ‘I served in the armed forces.’”
What is the harm in having one’s service “demeaned”? One veteran and defender of the Act, Fang Wong, urges
“These medals bestow prestige on heroes who have fought, suffered and in many cases given their lives for the cause of freedom. Congress has concluded that falsely proclaiming to be a decorated veteran diminishes the value of military awards, and the court should uphold this act.”
But what importance does or should “prestige” have in the courts? From the liberal, justice- and liberty-oriented perspective, the moral wrong of lying about military service and receipt of medals has to be cashed out as wrongfully costing someone some freedom or wrongfully causing some injury. It’s hard to see how typical cases of “stolen valor” amount to enough of either of these to justify the Stolen Valor Act.
On the other hand, the wrongness from the honor perspective concerns the way such lies distort an important honor ranking. As Wong and Scalia suggest, the prestige distinguished military service confers is deeply valuable to those who have earned it, and false claimants to that that prestige necessarily dilute the prestige of those who deserve it. “Stealing valor” is a paradigmatically dishonorable act, as obviously and seriously wrong from the honor perspective as felony fraud is from the perspective of justice.
How to handle honor-distortion is a fundamental problem for liberal societies, which are premised on a very circumscribed notion of what matters enough to make illegal. Wrongs that would cost a veteran even $1 would matter legally. Wrongs that would harm a veteran even as little as bee sting would matter legally. But wrongs that injure his or her honor do not, because status is not a liberal value, unless that status can be shown to have direct material implication (e.g., if that status is important to clients). Other societies with stronger honor traditions sometimes countenance making something purely dishonorable illegal. But the U.S. has the strongest free speech protections in the world, and in that sense is a supremely liberal society. We will have to see whether SCOTUS maintains that tradition in this case.
In any event, honor theorists need to think hard about how they think honor as an ethical or moral value should influence the law. For my part, my sentiments side with the Stolen Valor Act, but my considered view is that it should be struck down. I suppose I take a Millian line on this, saying that the law should not enforce the honor code, but that private individuals should through public denunciation and social sanction.