WASHINGTON — It has been almost 200 years since Napoleon Bonaparte said, "A soldier will fight long and hard for a bit of colored ribbon."
A case heard in the Supreme Court Wednesday involving a man who lied about being a decorated veteran could be a societal landmine for veterans and the way they feel about awards that recognize their sacrifice.
A focus of the court case is whether the Stolen Valor Act of 2006, which makes it a crime to falsely claim, verbally or in writing, to be the recipient of a military honor, infringes on the First Amendment right of free speech.
Xavier Alvarez, a former public official who was never in the military, said in 2007 that he was a retired Marine and Medal of Honor recipient. Alvarez was later indicted under the Stolen Valor Act but has successfully argued his way through the U.S. Court of Appeals that the act violates his First Amendment right to free speech, and that there were no victims of what he said.
"It is not a victimless crime," said University of Utah law professor Jim Holbrook, who received the Bronze Star and Army Commendation Medal for valor for combat service in Vietnam in 1969. "The victims are everyone in the nation and the people who receive these awards who have earned them, and their families and loved ones who all have incurred the costs of that sacrifice."
"It's fascinating to me that judges who have never served in combat are looking at this through the lens of First Amendment principles without really understanding what military decorations mean," Holbrook said.
With the reference to Napoleon — it's not that the award or the ribbon itself has value, but that valor awards are the symbol for a sacrifice that cannot have a price affixed.
"That's why a First Amendment analysis misses the point," Holbrook said. "The harm is a social harm. It is a harm to our military" if there is no protection in the law to separate honest award recipients from fakes.
The high court has in recent years overwhelmingly rejected limits on speech, striking down a federal ban on videos showing graphic violence against animals and a state law aimed at keeping violent video games away from children. The court also rejected the attempt by the father of a dead Marine to sue fundamentalist church members who staged a mocking protest at his son's funeral.
And in 1989, the court said the Constitution protects the burning of the American flag.
Justice Sonia Sotomayor said on Wednesday the earlier cases made clear that merely offending others by itself is not enough to justify limiting speech.
"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," said Sotomayor, who is divorced.
She seemed the least willing member of the court to accept the Obama administration's defense of the law and disputed the view that the value of the highest award, the Medal of Honor, or any others has been diminished because some people lie about having received them.
The administration's top Supreme Court lawyer, Solicitor General Donald Verrilli Jr., defended the law as targeted to protect the integrity of the system established by Gen. George Washington in 1782. Wednesday marked 280 years since Washington's birth.
"The Stolen Valor Act regulates a very narrowly drawn and specific category of calculated factual falsehood, a verifiably false claim that an individual has won a military honor," Verrilli said.
On the other side from Sotomayor was Justice Antonin Scalia. "When Congress passed this legislation, I assume it did so because it thought that the value of the awards that these courageous members of the armed forces were receiving was being demeaned and diminished by charlatans. That's what Congress thought," Scalia said.
Jonathan Libby, the federal public defender arguing against the law, said Congress' intent is hard to discern because it passed the legislation without any hearings.
The effort to limit the reach of a ruling in favor of the law appeared to be the court's most pressing concern.
Terry Schow, executive director of the Utah Department of Veterans Affairs, said conspicuously decriminalizing what he sees as "fraud just plain and simple" could have very real implications for veterans. "There's a sense of extreme patriotism today. Many employers want to hire veterans. If you've got a fellow who claims (to be a decorated veteran), he may displace someone else, another veteran."
A case in point involves the American Legion Post in Park City that hired Jackie Climer to be its treasurer. Climer was convicted in January of stealing $33,000 from the post. Post officials said Climer earned their trust, in part, by claiming to be a Purple Heart recipient, which he is not.
The absence of battle-zone record keeping has kept many would-be valor recipients from being properly recognized, Schow said. Veterans, or their families, who are awarded medals long after their military service often have to wade through a significant amount of red tape to demonstrate their eligibility is legitimate.
That bureaucratic largess makes it all the more important to protect the rights of veterans who have a legitimate claim on a medal, Schow said.
"Nothing is worse than a man who has earned an award who never got it, except someone who got it and never earned it," Schow said.
The collateral effects of the Supreme Court's decision, not expected until June, have application outside of military circles.
"It's illegal to represent yourself as a police officer. Impersonating federal agents, firefighters — the conduct speaks to the special nature of that kind of service and sacrifice, which should have some impact on this decision," said David Rudd, dean of the College of Social and Behavioral Science at the University of Utah and scientific director for the university's National Center for Veterans Studies.7 comments on this story
The high court justices also wants to know whether a decision upholding the Stolen Valor Act could be a first step down a slippery slope to new laws against such things as lying about the Holocaust, an extramarital affair, a high school diploma, or perhaps college degrees to impress a date or win a job.
"Where do you stop?" Chief Justice John Roberts asked.