Current Issue
Volume 13, No. 1
Stolen Valor Act: A Constitutional Instrument to Prosecute "Public Fraud"
2012 | Captain Nicholas Mull, U.S. Marine Corps
The legal arguments presented in this Note cut to the core issue presented to the U.S. Supreme Court in United States v. Alvarez, 617 F.3d 1198, cert. granted, 132 S.Ct. 457 (Oct. 17, 2011) (No. 11-210). The U.S. Supreme Court recently granted certiorari on October 17, 2011, with oral arguments currently scheduled for February 22, 2012.
Abstract
Amidst the post-9/11 conflicts, false claims by persons claiming to be recipients of military awards as a means to gain favor in the community reached pandemic proportions in the United States. To counter this "Public Fraud" Congress amended the Stolen Valor Act in 2005 to add provisions prohibiting the false representation, whether orally or written, of being a recipient of any military award. Congress intended the Act to deter and criminally punish such impostors trying to get ahead in life by exploiting the long held social mores of American society to honor military veterans that have served our country, especially those that have received valor awards such as the Medal of Honor or Silver Star. The Act was considered as a means to preserve the high reputation of military awards to further the morale and welfare of the Armed Forces, which is critical to its efficient operation to preserve national security. Further, the Act enforce the longstanding tradition of punishing those that falsely claimed such honor since General George Washington stated:"[s]hould any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished."
After several years of enforcement, one of the impostors, Xavier Alvarez, after being convicted for violating the Stolen Valor Act, appealed on an assertion that it violated his First Amendment right to free speech. The Ninth Circuit Court of Appeals in August of 2010 ruled the Stolen Valor Act unconstitutional, which inspired the author of this Note to defend the cause to stop "Public Fraud." In the time since that ruling, the Supreme Court has granted certiorari in the Alavarez case, and the Tenth Circuit Court of Appeals has recently held the Act to be constitutional in another case causing a split in the circuits.
The legal argument presents a clash between two very important American cultural concepts: one, freedom of speech, and two, honor for veterans. After an in depth analysis of the purposes and procedures of the military awards system, and First Amendment jurisprudence, it is argued that the Stolen Valor Act is constitutional. First, the Act regulates verbal conduct not protected by the First Amendment. And second, even if the it were to be subject to strict scrutiny, the Stolen Valor Act should be sustained.
Suggested citation: Nicholas Mull, Stolen Valor Act: A Constitutional Instrument to Prosecute "Public Fraud," 13 J.L. Soc'y __ (2012).
The Aftermath of "The Detroit Controversy": Eavesdropping on Acting Public Officials and Their Privacy Rights
2012 | Eric Turnbull
Abstract
On July 6, 2000, Andre Young (aka Dr. Dre) brought his Up in Smoke tour to Joe Louis Arena in Detroit, Michigan. This world-famous tour brought some of the most successful hip-hop artists to one venue, including Snoop Dogg, Ice Cube, and Eminem. However, the show also brought with it an introductory video presentation which depicted naked women, gun violence, and drug use. When the tour arrived in Detroit, public officials of the city sought to convince the tour representatives to pull the video from the show. Dr. Dre and the tour representatives were very much adverse to doing so, and what resulted from this confrontation was a video-recorded accounting of the dispute from the tour representatives’ point of view. Portions of this footage were included in the tour’s DVD bonus features, titled “The Detroit Controversy.”
This recorded footage is the subject of this Note, as three of the city officials appearing in the footage brought an eavesdropping claim against the tour representatives. After ten years of litigation, the Michigan Supreme Court came down with its decision in Bowens v. Ary, holding that summary disposition in favor of the defendant tour representatives was warranted because the city officials could not have reasonably expected the recorded conversation with the tour representatives to have been “free from casual or hostile intrusion or surveillance.” The Bowens Court laid out the factual circumstances of the case, and noted that six factors weighed in favor of a finding that there was no reasonable expectation of privacy for the city officials.
This Note will navigate the depths of the Michigan Eavesdropping Act and evaluate its application to acting public officials. Issues of consent, private conversation, and the reasonable expectation of privacy will be evaluated under Michigan law and applied to acting public officials. Michigan’s stance on acting public officials also will be weighed against other states, depending on whether those states employ one-party or all-party consent eavesdropping statutes. Finally, this Note will conclude that public officials, acting in their official capacity, should have a diminished reasonable expectation of privacy when bringing an eavesdropping claim, and that the Bowens holding did not go far enough in creating a rule to better guide the eavesdropping statute and public policy for the accountability of acting public officials.
Suggested citation: Eric Turnbull, The Aftermath of "The Detroit Controversy": Eavesdropping on Acting Public Officials and Their Privacy Rights, 13 J.L. Soc'y __ (2012).