Point Pleasant Borough cops recently charged a 22-year-old man with third degree forgery. Additionally, they charged him with third degree tampering with public records, fourth degree identity theft, and fourth degree stolen valor. Indeed, like many investigations, this one began with a complaint from a resident. According to the news, the Jersey Shore man pretended to be a member of the U.S military. Additionally, authorities allege he wanted to gain the trust of Point Pleasant parents as he pursued child care work. Furthermore, authorities claim he showed potential clients forged and fictitious documents. Moreover, they claim these documents purported to be the act of U.S. military officials. But the officials neither authorized nor knew of the documents. Finally,  the documents allegedly required him to “complete family care hours as a requirement” of a military program.

Stolen Valor Act of 2005 and the First Amendment

In 2012, the Supreme Court of the United States struck down provisions of the Stolen Valor Act of 2005, 18 U.S.C. § 704.¹ Indeed, the Stolen Valor Act targeted falsity, and nothing more. For example, it prohibited falsely representing oneself, verbally or in writing, as the recipient of any decoration or medal authorized by Congress for the Armed Forces of the United States. Additionally, it imposed enhanced penalties if the offense involved a Congressional Medal of Honor. The Supreme Court struck down the law, however, as a content-based suppression of pure speech.

The First Amendment divests government of the power to restrict expression because of its message, ideas, subject matter, or content. Nevertheless, there are exceptions, and they apply to:

• advocacy intended, and likely, to incite imminent lawless action;
• obscenity;
• defamation;
• speech integral to criminal conduct;
• fighting words;
• child pornography;
• fraud;
• true threats; and
• speech presenting some grave and imminent threat the government has the power to prevent.

But there is no exception to the protection of the First Amendment with respect to false statements. Indeed, the Court reasoned that the open and vigorous expression of views in public and private conversation, which the First Amendment protects, renders some false statements inevitable.²

The Court did not exclude Stolen Valor from the First Amendment based on “speech integral to criminal conduct.” Furthermore, the Stolen Valor Act applied to falsity at any time in any place to any person. Therefore, it applied with the same force to the regulated falsity whether shouted from the rooftops or whispered in the home.

The First Amendment prohibits government regulation of false speech. But the First Amendment will not protect a liar from a very bad reputation.

New Jersey Stolen Valor Act, N.J.S.A. 38A:14-5

Any person who knowingly, with intent to impersonate and with intent to deceive, misrepresents oneself as a member or veteran of the United States Armed Forces or organized militia by wearing the uniform or any medal or insignia authorized for use by the members or veterans of the United States Armed Forces or the organized militia, by Federal and State laws and regulations, shall be guilty of a crime of the fourth degree.

Additionally, any person who knowingly, with intent to impersonate and with intent to deceive for the purpose of obtaining money, property, or other tangible benefit, misrepresents oneself as a member or veteran of the United States Armed Forces or organized militia by wearing the uniform or any medal or insignia authorized for use by the members or veterans of the United States Armed Forces or the organized militia, by Federal and State laws and regulations, shall be guilty of a crime of the third degree, subject to a minimum fine of $1,000.

Furthermore, any person who knowingly, with intent to deceive for the purpose of obtaining money, property, or other tangible benefit, holds oneself out to be a recipient of any decoration or medal created by Federal and State laws and regulations to honor the members or veterans of the United States Armed Forces or the organized militia shall be guilty of a crime of the third degree, subject to a minimum fine of $1,000….

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Footnotes

¹ United States v. Alvarez, 567 U.S. 709, 132 S.Ct. 2537, 183 <u”>L.Ed.2d 574 (2012).
² Id. at 2543-44.