Lawmakers push ‘Stolen Valor’ fix to withstand future court challenges

Lawmakers are vowing to reverse the Supreme Court’s decision against the Stolen Valor Act by passing a new version that can withstand First Amendment challenges.

The Stolen Valor law, passed in 2006, made it a federal crime to lie about winning military medals, but it was struck down last month as unconstitutional on the same day as the landmark ruling on the healthcare reform law.

Now several lawmakers have introduced legislation to revise the law so that it will meet the high court’s constitutional standards while preserving penalties for people who lie about military honors. 

But there could be a fight brewing in Congress over the best way forward for the new legislation — and over whose bill ultimately will get passed.

The initial Stolen Valor Act sailed through both chambers unanimously, so an updated version could have a good shot at passing Congress before the election.

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Two lawmakers, Sen. Scott Brown (R-Mass.) and Rep. Joe Heck (R-Nev.), held a press conference Tuesday to push their legislation, introduced last year, that would make it a federal misdemeanor for individuals to benefit from lying about military honors, a distinction that they say will satisfy the high court’s First Amendment concerns.

“The recent court ruling shows how important it is for Congress to enact our legislation,” Brown said. “It also gives us a needed sense of urgency to do just that. Acts of stolen valor need to be addressed by a law that can pass constitutional muster.”

Brown and Heck are not the only ones looking to fix the Stolen Valor law, however.

Sen. Kent Conrad (D-N.D.), who introduced the 2006 Stolen Valor Act, said he is also looking to tweak the legislation. Conrad and Brown told The Hill that while their staffs might have spoken about the legislation, the two senators had not yet had a conversation about it. Conrad held out the possibility he could introduce his own bill.

“We’ve been working on an updated bill to meet the objections,” Conrad said.

Sen. Jim Webb (D-Va.) entered the mix on Tuesday afternoon with the Military Service Integrity Act, legislation he said was drafted “to comply fully with the U.S. Constitution’s First Amendment restrictions.”

An aide to Webb said that the legislation is “a separate effort” from Brown’s and specifically incorporates the court’s ruling.

The timeline for action on any of the bills is up in the air. Brown and Heck did not have a schedule for a vote on their bill, though Heck said he was hopeful there would be a subcommittee hearing soon.

The push for action in Congress comes in the wake of the Supreme Court’s 6-3 decision in United States v. Alvarez. Chief Justice John Roberts and Justice Anthony Kennedy joined the liberal wing of the court, holding that the Stolen Valor Act violated the First Amendment.

Still, in a concurring opinion, Justice Stephen Breyer hinted that a narrower version of the law might be constitutional. 

“The government has provided no convincing explanation as to why a more finely tailored statute would not work,” Breyer wrote. “In my own view, such a statute could significantly reduce the threat of First Amendment harm while permitting the statute to achieve its important protective objective.”

Heck and Brown say their legislation would do just that, by making it a crime to benefit from lying about military honors, rather than criminalizing the lies themselves. 

Their bill also expands what lies would qualify for punishment. The first Stolen Valor law was limited to falsehoods about military medals, but Brown and Heck’s bill also covers things like seeing combat or being part of a special operations unit. 

The American Civil Liberties Union and other free speech advocates opposed the initial Stolen Valor Act, and ACLU policy adviser Gabe Rottman said the group had “concerns” with the new bill, warning there could be unintended consequences for punishing speech.

Rottman suggested the bill could punish benefits of minimal value, such as lying to get a beer at a bar, but Heck rejected those concerns as unfounded. 

While Rottman said the ACLU would expect to lobby against the bill if headed for a vote, the legislation is likely to enjoy widespread bipartisan support, as it did in 2006.

“This is not a controversial matter,” Brown said. “Every member of Congress should join us to make sure the dishonorable people who profit from the service and sacrifices of our heroes are held accountable.”