ACLU-Oriented Judge Throws Out Stolen Valor Act


ACRU Staff


July 20, 2010

A federal judge in Denver has decided the case of a man who claimed military awards he hadn’t earned, in an unusual way, and contrary to all other courts to consider such a case. Instead of finding the defendant guilty, he threw out the law, claiming it was unconstitutional.

The facts for this article, but not the legal conclusions, come from an article in the Denver Post on 17 July. A federal judge there has heard the criminal trial of a man who falsely claimed certain military awards. Instead of find the defendant guilty, which he plainly was, the judge ruled that the Stolen Valor Act itself was unconstitutional for interfering with “freedom of speech.”

The prosecution had argued that whenever someone fraudulently represented that he had received certain military awards, that “demeans” the awards actually given to servicemen and women who had earned them legitimately. US District Court Judge Robert Blackburn took an entirely different tack.

He claimed that “This wholly unsubstantiated assertion is, frankly, shocking and, indeed, unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor…. To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by considerations of whether a medal may be awarded simply defies my comprehension.”

The motives of honorable servicemen and women in earning and receiving awards is, of course, wholly irrelevant to the constitutionality of the Act. At issue is whether pretending to have awards is fraudulent, and causes real harm when a pretender receives benefits and accolades based on his dishonesty. The Stolen Valor Act has been upheld in several other federal jurisdictions. Almost certainly this decision will be reversed on appeal, unless the Obama Administration is too foolish, or careless, to take the appeal.

The problem is that Judge Blackburn is the kind of judge that the ACLU likes, and that the Obama Administration prefers. He is a judge who makes up the law based on his own predilections as he goes along.

Consider that his reasoning would lead to throwing out as unconstitutional laws that make it a criminal act for laymen to pretend to be lawyers, doctors, licensed contractors, etc. If there is a statute against pretending to be a competent federal judge, this judge should feel threatened by the possibility of being charged.

The bottom line is that all judges should obey the federal (or state, or local) laws which the duly-elected representatives have passed and established. Only rarely, and never when they invent new and non-rational ways to strike down a law they personally disagree with.

That is what this judge did. Any judge who acts this way is unfit to serve on any bench. (A quick look at prior decisions in this judge’s career shows that he has an established reputation as a loose cannon on the federal bench, despite the fact that he was nominated by President George Bush, and confirmed unanimously by the Senate.

There is such a thing as “robe madness.” A few federal judges, when they are confirmed and put on the lifetime robes of a federal judge, suddenly come to believe that they are demi-gods and seek to run everything within their domain their way, and no other way. Such judges frequently get overruled on appeal. But sadly, nothing can be done about the fact that they remain on the federal bench.

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