Citizens Can't Lie About War, but Movies Can

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It's a federal crime for people to pretend to be war heroes. But are those stories any more dishonest -- or damaging to veterans -- than Hollywood's fictions?

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I have absolutely no use, none, for the Stolen Valor Act, an abomination of a 2005 federal law that makes it a crime, punishable for up to one year in prison, for a person to lie about whether he or she has received a military award or decoration. 

It was passed by the same addled Congress that gave us the unconstitutional Detainee Treatment Act, and was signed into law by the same president who paraded around,  dressed like a pilot, when he fatefully declared "mission accomplished" in Iraq. In fact, most of the legislators who voted for the needless law are the ones who decry the creeping expansion of federal jurisdiction. This is a bad law -- a cynical one -- passed so politicians could pretend that they are worthy of honor for sticking up for the honor of the real heroes of our military. 

The big lies, the commercial ones, are shrugged off. The small lies are turned into crimes -- and prosecuted in federal court.

Lying is bad. Lying about being a military hero is worse. But the idea that it should be a federal crime -- even when no one is harmed by the lie -- is absurd when you consider all the other ways in which our armed forces, and patriotism itself, are marketed for profit and policy. The statute says you cannot lie about being a war hero. But Hollywood can make up stories about war heroes without committing a crime, and television marketers can peddle patriotism (and 9/11 itself) with impunity. The big lies, the commercial ones, are shrugged off. The small lies are turned into crimes -- and prosecuted in federal court. 

On Wednesday morning, the United States Supreme Court will hear oral argument in a case that likely will determine the outcome of the Stolen Valor Act. The case is styled United States v. AlvarezScotusblog's Lyle Denniston has written a really good preview here. Essentially, the justices have to broker a conflict between the 10th Circuit (which upheld the law) and the 9th Circuit (which didn't) over the Act's scope and constitutionality. Hopefully, the court will continue its recently ardent defense of the first amendment by definitively kicking the law to the curb.

That would be a victory for Xavier Alvarez, the subject of Wednesday's argument and the creep who falsely claimed in 2007 that he had won a Congressional Medal of Honor. But Alvarez already has paid a price for his lie. As Denniston recounts, Alvarez was "rather soon subjected to what his lawyers call a 'public shaming,' earning such epithets in the community and local newspapers as an 'idiot,' a 'jerk,' 'cretinous,' and 'ultimate slime.'" Our federal prisons are already crowded; do taxpayers need to pay to keep men like Alvarez in custody?  

That's all I want to say about the case itself. But hopefully the timing of the argument won't be lost on anyone who went to the movies this past holiday weekend. I did. I went to see The Grey (Bad wolf! Baa-aaad wolf!) and one of the previews before the film was for the movie  Act of Valor, an action adventure involving good guys and terrorists. The trailer proudly proclaims that "the characters in this film are portrayed by active duty U.S. Navy Seals"-- you know, like the brave ones who so brilliantly knocked off Osama bin Laden.

The movie comes out Friday -- two days after the justices meet in Alvarez. Oh, Lord, let there be a justice who cheekily asks on Wednesday: "Speaking of valor, why shouldn't the folks creatively associated with the Act of Valor film also be prosecuted under the Stolen Valor Act? It's a piece of fiction, isn't it? And isn't the purpose of the statute to protect a real war hero's reputation for valor by criminalizing false claims of valor?" (Yes, yes, I know. The Stolen Valor Act only applies if you've falsely represented yourself as having received a medal -- and I didn't see any medals in the trailer.)

I'm not knocking the movie. Hollywood and the Pentagon have long collaborated on marketing projects designed to boost patriotic fervor -- and generate more recruits (that's a whole other piece that someone ought to take the time to write this week). The smaller point I'm trying to make is that some people might reasonably consider that the film's fictionalization of valorous acts diminishes the value of the true valor achieved in real combat by our military personnel (including, perhaps, the Navy Seals who were involved in this film). And, if that's true, wouldn't we all be better off if federal law didn't even pretend to try to regulate perceptions of valor? 

Think I'm extending the argument too far? Probably. There are, indeed, substantial legal and factual differences -- and obvious ones -- between what the Stolen Valor Act is supposed to cover and what can lawfully be published or broadcast as a work of fiction (or even as a faulty piece of non-fiction, for that matter) under the protections of the First Amendment. But last week the Los Angeles Times touched a bit upon a related issue that I think is worthy of a little more exploration, in and out of Court this week. From The Times:

In a moment of unprecedented public exposure, several active-duty SEALs play the lead parts in the film, which opens Feb. 24. Though their names don't appear in the credits -- listed instead are the names of Naval Special Warfare forces killed since Sept. 11 -- the SEALs' faces are clearly visible onscreen and in marketing materials for the combat thriller. It's not only the SEALs' images but their often fearless tactics that "Act of Valor" reveals, in electrifying action sequences filmed during training exercises with live weapons fire.

The casting of real SEALs creates a layer of intrigue and authenticity about "Act of Valor" for audiences, but the movie raises questions of propriety for some in the military community -- the SEALs have been uncomfortably in the limelight since one of their teams conducted last May's Bin Laden raid, and the hunt for the terrorist leader is the focus of yet another Hollywood movie, one that has become the subject of a Pentagon investigation about whether its director and screenwriter, Kathryn Bigelow and Mark Boal, had improper access to classified material.

And then there is this from the same story:

The story of the small project, first conceived as a training film, then later embraced by the Navy and given a huge unexpected boost by the Bin Laden raid, is a dramatic yarn in its own right. Because it was begun as a recruitment video, the movie proceeded outside the normal Department of Defense channels for working with Hollywood, in which production companies submit a script for the department's approval in order to gain access to personnel or materials.

Officially, "Act of Valor" "did not follow the normal DOD approval process for major motion pictures," according to Rear Adm. Dennis J. Moynihan, the Navy's chief of information. But the Navy has publicly embraced the film, which was overseen by the Naval Special Warfare unit, and determined that it poses no threats to the security of the U.S. or its stars, some of whom are now deployed overseas.

So the Navy endorses this recruiting film, there are real SEALS in it, and it lists the names of some of our military dead. So it is a tribute film and not a piece of fiction that dramatizes and thus undermines the valor earned by real military heroes. That's the Navy's argument and the film's defense. Fair enough. But it seems to me that if the federal government is going to embrace fantasy productions like this one it cannot at the same time be serious about a law that throws folks in federal prison for a year if they lie to no effect about being a military hero.   


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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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