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.
I enjoyed this, Dan. I heard a whole story on this case on NPR and thought it an interesting legal matter and fascinating how many prominent leaders over time have faked earning military awards (which was the focus of the story–ie, not that people lied about having served in the military which is not valorous on its own, but rather that people lied about having received awards for valor they did not earn). Interesting to see how it turns out!
BTW, that comment was by me, Tricia J.
Marc Hersch said:
Although we might agree that within the context of a given moral community honorable actions are seen as valuable, can honor itself retain any meaning, and thereby enable actions of honorable moral consequence, if it is reduced to the status of a commodity that can be bestowed upon. or withdrawn or stolen from, the honorable actor?
Paradoxically, it seems to me that when we treat honor as a commodity that can be possessed or dispossessed — as a matter that can be litigated — we destroy the meaning of honor itself.
Duncan Richter said:
I think I support the Stolen Valor Act. I see no reason why the right to free speech should protect lying (although I can see reasons why lying just in general should not be illegal). And surely the kind of false claim in question is disrespectful to those who have earned these honors. This insult, it seems to me, is a kind of harm. Not a great harm, perhaps, as you suggest, but a harm all the same.
Paul Robinson said:
I would have thought that if somebody attempts to gain some profit through presenting himself as a medal winner, that would constitute fraud and so the state should be able to prosecute using that legislation and no additional legislation specific to the military would be needed. If no profit is gained and no harm caused, it should be considered no worse than any other false claim. I am against anything which marks the military out as having some special honour and status. Defrauding people by claiming to have a medal is no different than defrauding them by claiming to have a university degree or some other qualification. I see no reason why saying that you have a medal is worse than claiming to have a BA or doctor’s license or anything else.
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