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EXPERT AVAILABLE: Stolen Valor Act Unconstitutional, Infringes on Free Speech, MU Expert Says

MU free speech law expert believes Supreme Court will rule Stolen Valor Act unconstitutional

February 21st, 2012

Story Contact: Nathan Hurst, 573-882-6217, hurstn@missouri.edu

The views and opinions expressed in this “for expert comment” release are based on research and/or opinions of the researcher(s) and/or faculty member(s) and do not reflect the University’s official stance.

COLUMBIA, Mo. ­— On Feb. 22, the Supreme Court will hear arguments before deciding the constitutionality of the Stolen Valor Act, which punishes anyone who lies about being awarded certain military medals, like Purple Hearts. Christina Wells, the Enoch H. Crowder professor of law at the University of Missouri School of Law and a First Amendment law expert, says the Stolen Valor Act, which Congress adopted in 2006, unnecessarily infringes on First Amendment freedom of speech rights.

Wells believes the Stolen Valor Act is inconsistent with the Court’s cases that ultimately rejected the crime of “seditious libel”, or purposefully lying about or criticizing the government. In those cases, the government punished seditious libel by saying the lies or criticism damaged the government’s “dignity and reputation”, but Wells says historical evidence shows that government officials used seditious libel laws simply to silence their critics. The Supreme Court eventually ruled that punishing seditious libel would have a chilling effect on all political speech and was inconsistent with the First Amendment.

In an article to be published in the UCLA Law Review, Wells notes the similarities between the seditious libel case and the current Stolen Valor Act case.

“The government is claiming that lying about receiving military awards dilutes and undermines the dignity and reputation of military and its awards,” Wells said. “The Supreme Court has already ruled that the government cannot make laws to protect its own dignity.”

Wells believes the Supreme Court will ultimately find the Stolen Valor Act unconstitutional. She says that the government should not be allowed to punish someone simply for lying, especially if there is no other harm done, such as monetary damage or damage to a specific individual’s reputation.

“Everyone knows that lying is wrong,” Wells said. “However, the Stolen Valor prosecutions involve a question considerably more complicated than whether one should be allowed to lie about having received a military award.  If there is no harm done other than damage to the reputation of such awards, we should ask a different question: Why should the government be allowed to punish such lies? The Stolen Valor Act creates a political crime that does not punish someone for doing harm, but instead tries to enforce respect for the military and its awards. We should respect the valor and bravery that these awards represent, but the government has no business telling us who or what we must revere on pain of criminal penalties.”

Wells is the Enoch H. Crowder Professor of Law at the University of Missouri School of Law. Wells has worked professionally as an associate at Skadden, Arps, Slate, Meagher & Flom in Chicago and as an associate at Heller, Ehrman, White & McAuliffe in Los Angeles. She has been on the University of Missouri School of Law faculty since 1993.

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