A Colorado federal court last week struck down another of Congress’s well-intentioned but poorly drafted criminal laws—a law that exemplifies some of the root problems of overcriminalization. In a well-reasoned opinion [2010 WL 2802691 (opinion not yet available on the Internet)], the court held that the broad offense in the Stolen Valor Act of 2005 – criminalizing lying or making any misrepresentation about whether a person received a military medal or other award – violates the First Amendment right to free speech. Such conduct is reprehensible, but this criminal offense was drafted to cover too much conduct, including some that should never be punished criminally.
Heritage brought to light the serious problems with the Stolen Valor Act, along with over 250 other improper criminal offenses, in Without Intent, a major report it released this spring. Just like the Stolen Valor Act, about 60 percent of the offenses studied in Without Intent lacked adequate criminal-intent requirements to protect those who violate the law without criminal intent. The way the Stolen Valor Act is written, even a G.I. who honestly – but mistakenly – believed that his commanding officer had “put in” for a military award could be fined and spend a year in federal prison.
Make no mistake: It is wrong to lie. As the federal court said, those who lie about receiving military awards “abase themselves.” Americans should hold them in contempt as the imposters they are.
But lying should be criminalized only in limited circumstances. Criminal law and criminal punishment cannot solve every problem or rectify every moral wrong. Human nature being what it is, if every lie were a crime almost all of us would be in prison.
The Act criminalizes the mere utterance of a false statement, regardless of harm. Punishment for such statements should be limited, at maximum, to a civil fine, which may often be administered more quickly, while still discouraging egregious examples of false service claims.
The goals of the Stolen Valor Act are noble, and the law does signal that Congress values our soldiers and disapproves of lies about military service. However, every criminal conviction should require the person accused not only to have committed a truly wrongful act with criminal intent, but also to have caused (or at least threatened) real harm. The Stolen Valor Act did not include all of these elements and deserved to be struck down.
In the Colorado case, defendant Rick Strandlof’s lies about his non-existent military service and awards appear to have been directly related to tangible harm to donors to his bogus cause and organizations. It is unclear from the court’s published opinion why he was not charged with a traditional, well-defined fraud crime.
As the court pointed out, neither Congress nor the courts “have the free-wheeling authority to declare new categories of speech outside the scope of the First Amendment” and thus subject to criminal punishment. The Stolen Valor Act is broad enough to criminalize speech that has not actually misled, defrauded, or deceived someone.
It is refreshing to see courts striking down vague, overbroad criminal laws such as the Stolen Valor Act and the federal “honest services” fraud statute. Like the Colorado court, federal lawmakers must reject the premise that government may criminalize an entire category of speech based upon its content or its message. This is a power that a legislature could (and eventually would) use against almost any and every category of speech.
Criminal punishment is the greatest power that any civilized government routinely uses against its own citizens. Like any other great power, it must be carefully limited or it will be abused. That is why the Framers of the Constitution included protections against unjust criminal prosecution and punishment in the Fourth, Fifth, Sixth, and Eighth Amendments.
Although the intentions behind the Stolen Valor Act are noble, vague and overbroad criminal offenses such as this lend themselves to prosecutorial over-reaching and abuse. Such offenses widen prosecutorial powers beyond constitutional limits and circumvent Bill of Rights protections that are fundamental to a free society. The wrongs that the Stolen Valor Act attempts to prevent and punish may be redressed with civil fines – not the harsh powers of criminal punishment.
Eric Omdahl is currently a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/departments/ylp.cfm