Stolen Valor, Part II: The Legislative and Executive Branches Take the Hint

On June 28, 2012, the U.S. Supreme Court held that the Stolen Valor Act is unconstitutional because it penalizes speech (albeit false speech) without consideration of less restrictive alternatives or a clear connection between the speech and the harm sought to be prevented. In U.S. v. Alvarez, No. 11-210, 567 U.S. __ (2012), Justice Kennedy (writing for a plurality of four justices) suggested that a less speech-restrictive option would be for the government to create a database of winners of military awards:

There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individuals have already created databases similar to this, see Brief for Respondent 25, and at least one database of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the Department of Defense investigated the feasibility of establishing a database in 2008, the Government "concluded that such a database would be impracticable and insufficiently comprehensive." Brief for United States 55. Without more explanation, it is difficult to assess the Government's claim, especially when at least one database of Congressional Medal of Honor winners already exists.

Plurality Opinion, slip op. at 17. Justice Breyer, writing for himself and Justice Kagan, offered his own suggestion:

[A] more finely tailored statute might, as other kinds of statutes prohibiting false factual statements have done, insist upon a showing that the false statement caused specific harm or at least was material, or focus its coverage on lies most likely to be harmful or on contexts where such lies are most likely to cause harm.

Concurring Opinion, slip op. at 9. Breyer also seconded the plurality's suggestion that a database would go a long way to solving the problem. Id. at 10.

Less than two weeks after the ruling, the Pentagon and Congress have taken these suggestions to heart. The Pentagon announced on July 10th that it was indeed planning to create an online database for military medals. Meanwhile, Sen. Scott Brown (R-MA) has begun anew to push an amended version of the Stolen Valor Act (S. 1728) that he introduced in the Senate last October (before the U.S. Supreme Court ruled in Alvarez, but after the Ninth Circuit denied en banc review of its decision that the existing statute is unconstitutional). Brown's version of the law would make misrepresentations about military service punishable if knowingly made "with intent to obtain anything of value," while offering a defense if the "thing of value is de minimis."

The Pentagon's decision to create a database strikes me as an obvious and correct move here.  According to msnbc.com, the Department of Defense had previously decided not to offer such a service because of the cost involved and concerns about privacy. However, apart from the deterrence of false claims, those with whom I have spoken have uniformly been pleased that there will be a resource where they can look up the achievements of their family members.

Brown's revised version of the Stolen Valor Act raises more serious questions. S. 1728 is notably broader than the original version in cetain respects: Instead of being limited to misrepresentations about medals and awards, it encompasses any misrepresentation regarding military service (except for a soldier's false denial that he or she served), with enhanced penalties for those who falsely claim to have served in a combat zone or as part of a special operations force, or to have received the Congressional Medal of Honor. The "de minimis" defense is also largely irrelevant; prosecutors and defense attorneys would have the same fights over whether the object of the misrepresentation is "of value" without tossing Latin into the mix.

Notwithstanding its expanded reach, S. 1728 mig