BILL ANALYSIS Ó
AB 167
Page 1
Date of Hearing: March 15, 2011
Consultant: Stefani Salt
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 167 (Cook) - As Introduced: January 20, 2011
REVISED
SUMMARY : Expands existing provisions related to forfeiture of
elected office to additionally require that an elected officer,
as specified, forfeit office upon conviction of a crime
involving a false claim, with intent to defraud, that he or she
is a veteran or a member of the Armed Forces of the United
States. Characterizes these and related provisions, as
specified, as the "California Stolen Valor Act."
EXISTING LAW :
1)Mandates that an officer forfeit office upon conviction of
designated crimes as specified in the Constitution and laws of
the California. (Government Code Section 3000.)
2)Requires that an elected officer, as specified, forfeit his or
her office upon conviction of a crime pursuant to the federal
Stolen Valor Act of 2005, as specified, that involves a false
claim of receipt of a military decoration or medal described
in that act. (Government Code Section 3003.)
3)Provides that a person who falsely represents himself or
herself as a veteran or ex-serviceman of any war in which the
United States was engaged, in connection with the soliciting
of aid or sale or attempted sale of property, is guilty of a
misdemeanor. ÝPenal Code Section 532b(a).]
4)States that a person who falsely claims, or presents himself
or herself, to be a veteran or member of the Armed Forces of
the United States, with the intent to defraud, is guilty of a
misdemeanor. ÝPenal Code Section 532b(b).]
5)Mandates that a person who, orally, in writing, or by wearing
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a military decoration, falsely represents himself or herself
to have been awarded a military decoration, with the intent to
defraud, is guilty of a misdemeanor. If the person committing
the offense is a veteran of the Armed Forces of the United
States, this offense is an infraction or a misdemeanor.
ÝPenal Code Section 532b(c).]
6)Deems a person who falsely represents himself or herself in a
manner as specified to be guilty of a misdemeanor or
infraction. ÝMilitary and Veterans Code Section 1821.]
7)Directs that the offenses, as specified, may be deemed
infractions, as specified, and explains that a conviction for
such an infraction is not grounds for suspension, revocation
or denial of a license, or for revocation or probation or
parole. (Penal Code Section 19.8.)
8)Mandates that a person who, without authority, wears the
uniform or distinctive part thereof, or similar apparel, of
the armed forces of the United States or the Public Health
Service, shall be fined or imprisoned for up to six months.
(Title 18 United States Code Section 702.)
9)Penalizes a person who, with intent to deceive, wears any
military or official decoration of a nation with which the
United States is at peace, with a fine or imprisonment for up
to six months. (Title 18 United States Code Section 703.)
10)Demands that a person who knowingly wears, manufactures, or
sells a decoration or medal authorized by Congress for the
armed forces of the United States; a service medal or badge
awarded to members of such forces; the ribbon, button, or
rosette of any such badge, decoration or medal; or a colorable
imitation thereof, except when authorized under regulations
made pursuant to law, shall be fined under this title,
imprisoned not more than six months, or both. If the
decoration or medal is a Congressional Medal of Honor, the
offender can be imprisoned not more than one year, fined, or
both. ÝTitle 18 United States Code Section 704(a) or
704(b)(1).]
11)Declares that a person who knowingly manufactures,
reproduces, sells or purchases for resale, either separately
or on or appended to, any article of merchandise manufactured
or sold; any badge, medal, emblem; other insignia or any
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colorable imitation thereof of any veterans' organization
incorporated by enactment of Congress or of any organization
formally recognized by any such veterans' organization as an
auxiliary of such veterans' organization; knowingly prints,
lithographs, engraves or otherwise reproduces on any poster,
circular, periodical, magazine, newspaper, or other
publication; or circulates or distributes any such printed
matter bearing a reproduction of such badge, medal, emblem, or
other insignia or any colorable imitation thereof, except when
authorized under rules and regulations prescribed by any such
organization, shall be fined under this title, imprisoned not
more than six months, or both. ÝTitle 18 United States Code
Section 705.]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill would
recognize the California Stolen Valor Act as equal to the
federal Stolen Valor Act and making sure that those that make
false claims on military service or awards not earned to be
removed from an elected position."
According to information provided by the author, this bill is
intended "to give the state another tool beside the federal
Stolen Valor Act by establishing the California Stolen Valor
Act which would prosecute those using false claim of military
service to get elected in office.
"Current Federal Law - Stolen Valor Act of 2005: President Bush
signed S. 1998 (Conrad-ND) (PL 109-437) on December 20, 2006
to broaden the provisions of federal law that prohibited the
unauthorized wearing, manufacturing or selling of Medal of
Honor medals. Under the new law, these prohibitions also
apply to false claims about receiving medals and expanding the
scope beyond only the Medal of Honor."
2)Background : Currently, California law requires that an
elected officer forfeit office upon conviction of a crime
pursuant to the federal Stolen Valor Act. (Government Code
Section 3003.) Additionally, under California law, it is
already a misdemeanor for a person to falsely claim or present
himself or herself as a veteran or member of the Armed Forces
with intent to defraud. ÝPenal Code Section 532b(b).] This
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bill merely expands existing standards concerning forfeiture
of elected office to add that forfeiture be required upon
conviction of such a misdemeanor. This bill also
characterizes these provisions, and certain related
provisions, as specified, as the California Stolen Valor Act.
3)The First Amendment : The First Amendment to the United States
Constitution states, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech or of the press;
or the right of the people peaceably to assemble, and to
petition the government for redress of grievances." ÝU.S.
Const., Amend. I, Section 1.] The Fourteenth Amendment
applied the First Amendment, and most of the Bill of Rights,
to the states. ÝBarron v. Baltimore (1833) 32 U.S. 243.]
California's Constitution also protects free speech: "Every
person may freely speak, write and publish his or her
sentiments on all subjects, being responsible for the abuse of
this right. A law may not restrain or abridge liberty of
speech or press." ÝCal. Const. Art. I, § 2.]
The hallmark of protection of free speech under the First
Amendment is to allow for "free trade in ideas," including
those ideas that an overwhelming majority might find
distasteful or discomforting. ÝVirginia v. Black (2003) 538
U.S. 343, 358; see also Texas v. Johnson (1989) 491 U.S. 397,
414 ("If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.").] Thus, the First
Amendment "ordinarily" denies states "the power to prohibit
dissemination of social, economic and political doctrine which
a vast majority of its citizens believe to be false and
fraught with evil consequence." ÝWhitney v. California (1927)
274 U.S. 357, 374 (Brandeis, J., dissenting).] In addition to
protecting actual speech, the First Amendment protects
symbolic and expressive conduct. ÝSee, e.g., R. A. V. v. City
of St. Paul (1992) 505 U.S. 377, 382; United States v. O'Brien
(1968) 391 U.S. 367; Tinker v. Des Moines Independent
Community School Dist. (1969) 393 U.S. 503, 505.]
The protections afforded by the First Amendment are not
absolute. It has long been recognized that the government may
regulate certain categories of pure expression consistent with
the Constitution. ÝSee, e.g., Chaplinsky v. New Hampshire
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(1942) 315 U.S. 568, 571-572 ("There are certain well-defined
and narrowly limited classes of speech, the prevention and
punishment of which has never been thought to raise any
Constitutional problem").] The First Amendment permits
"restrictions upon the content of speech in a few limited
areas, which are 'of such slight social value as a step to
truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality'." ÝR. A. V. v. City of St. Paul, supra, 505 U.S.
377, 382-383 (quoting Chaplinsky v. New Hampshire, supra, 315
U.S. 568, 572).] These areas of speech that may generally be
regulated without First Amendment issues are well-defined,
narrowly limited "historical and traditional categories long
familiar to the bar." ÝUnited States v. Stevens, (2010) 130
S. Ct. 1577, 1584.]
Categories of speech that the United States Supreme Court has
permitted to be restricted include lewd, obscene, profane,
libelous and that which causes an imminent danger to others,
such as yelling "fire" in a crowded theater.
The California Supreme Court has acknowledged that "many crimes
can consist solely of spoken words, such as soliciting a bribe
(Pen. Code, § 653f), perjury (Pen. Code, § 118), or making a
terrorist threat (Pen. Code, § 422)." ÝAguilar v. Avis Rent A
Car System, Inc., (2009) 21 Cal.4th 121, 134.] Additionally,
the high court has held: "ÝT]he state may penalize threats,
even those consisting of pure speech, provided the relevant
statute singles out for punishment threats falling outside the
scope of First Amendment protection. In this context, the
goal of the First Amendment is to protect expression that
engages in some fashion in public dialogue, that is
'communication in which the participants seek to persuade, or
are persuaded; communication which is about changing or
maintaining beliefs, or taking or refusing to take action on
the basis of one's beliefs . . . . ' As speech strays further
from the values of persuasion, dialogue and free exchange of
ideas, and moves toward willful threats to perform illegal
acts, the state has greater latitude to regulate expression .
. . . " ÝPeople v. Toledo (2001) 26 Cal.4th 221, 233, quoting
In re M.S. (1995) 10 Cal.4th 698, 710.]
a) Forfeiture of Office : This bill does not add any new
restrictions on speech. This bill merely utilizes existing
law, which deems a person who falsely claims, or presents
him or herself to be a veteran or member of the Armed
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Forces of the United States, with the intent to defraud,
guilty of a misdemeanor, to add a provision requiring
elected officials found guilty under this law to forfeit
office. Thus, this bill does not seem to raise any First
Amendment issues.
Existing law states, "An officer forfeits his office upon
conviction of designated
crimes as specified in the Constitution and laws of the
State." (Government Code Section 3000.) Articulating a
crime for which an officer must forfeit his or her office,
as this bill does, appears to be in accord with this
provision.
b) The federal Stolen Valor Act : This bill amends
Government Code Section 3003, which currently requires
elected officials to forfeit office if convicted of a crime
pursuant to the federal Stolen Valor Act of 2005 (18 U.S.C.
Section 704). Although this bill, in and of itself, does
not raise a First Amendment issue, portions of the federal
Stolen Valor Act have been declared unconstitutional.
The Stolen Valor Act of 2005, codified at 18 U.S.C. Section
704(b) and (d), as originally enacted, criminalized the
wearing, manufacture, or sale of unauthorized military
awards. ÝSee 18 U.S.C. Section 704(a).] Congress,
however, felt that these protections were inadequate to
protect "the reputation and meaning of military decorations
and medals." ÝSee Pub. L. No. 109-437 (Dec. 20, 2006) 120
Stat. 3266.] Hence, the federal Stolen Valor Act makes it
a crime to falsely represent oneself, verbally or in
writing, to have been awarded a decoration or medal
authorized by Congress for the Armed Forces of the United
States, a service medal or badge awarded to a member of
such forces, the ribbon, button, or rosette of such a
badge, decoration, or medal, or a colorable imitation of
such item. Ý18 U.S.C. Section 704(b).]
The express language of the Act, as quoted above, is markedly
different from the language of the original statute,
codified in Section 704(a). Whereas Section 704(a)
punishes the act of knowingly wearing, manufacturing, or
selling military decorations without authorization, Section
704(b) purports to criminalize the false statement that one
has earned such awards. The Act requires no further action
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or effect, such as that the falsehood be uttered with
intent to defraud, induce reliance thereon or otherwise
cause detriment to an innocent third party. ÝCf. United
States v. Harmon (2nd Cir. 1974) 496 F.2d 20, 20-21
(finding that charges of violating 18 U.S.C. Section 912,
which prohibits impersonating an officer or employee of the
United States, were properly dismissed where indictment did
not allege that defendant "performed any acts under the
guise of this assumed identity").] It seems the penalties
imposed by the federal Stolen Valor Act are based solely on
the content of the speaker's misrepresentation, i.e.,
receipt of military honors.
As such, the federal Stolen Valor Act's constitutionality has
been challenged. A law that imposes a content-based
restriction on pure speech generally is subject to strict
scrutiny and cannot stand unless it is narrowly tailed to
serve a compelling government interest. ÝBoos v. Barry
(1988) 485 U.S. 312, 321.] The United States has argued
that the federal Stolen Valor Act's restrictions on speech
should not be subjected to strict-scrutiny because, as
false factual speech, it falls within those categories of
speech that may be restricted without Constitutional issue.
ÝUnited States v. Alvarez, (9th Cir. 2010) 617 F.3d 1198,
1202-1203.] However, the Ninth Circuit Court of Appeals
held that false factual speech is not in itself a category
of unprotected speech, and that the speech restricted by
Stolen Valor Act Sections 704(b) and (c) does not fall into
any of the existing categories. ÝUnited States v. Alvarez,
supra, 617 F.3d 1198, 1206.] The court went on to
determine Sections 704(b) and (c) to be unconstitutional
because they criminalize pure speech, without any other
actions, and, as content-based speech restrictions, are not
narrowly tailored to achieve a compelling governmental
interest. ÝUnited States v. Alvarez, supra, 617 F.3d 1198,
1218.] A Colorado district court came to the same
conclusion. ÝUnited States v. Strandlof, (D.Colo. July 16,
2010, Crim. Case No. 09-cr-00497-REB) 2010 U.S. Dist. LEXIS
82662, *22.] Although, a Virginia district court concluded
that Section 704(b) of the federal Stolen Valor Act is
constitutional ÝUnited States v. Robbins, (W.D.Va. Jan. 3,
2011, No. 2:10CR00006) 2011 U.S. Dist. LEXIS 190, *15], the
Ninth Circuit Court's decision is binding in California.
These cases do not directly impact the constitutionality of
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this bill, but instead serve to illustrate the potential
constitutional problems in the underlying law. Given the
discrepancies in these opinions, it is likely that the
issue of the federal Stolen Valor Act's constitutionality
will be taken to the United States Supreme Court.
c) Intent to Defraud : A person possesses the intent to
defraud " . . . if he or she intends to deceive another
person either to cause a loss of money, goods, services,
something of value, or to cause damage to, a legal,
financial, or property right." ÝCALJIC No. 1900 (Fall 2006
ed.).]
Unlike the federal Stolen Valor Act, the provisions of
California law upon which the California Stolen Valor Act
and the requirements for which office forfeiture are based
additionally require that the actor make such false
statements, or wear military decoration, with the intent to
defraud. (Penal Code Section 532b.) Thus, these
regulations do not punish the fabrication alone; to do so
would create a presumably unconstitutional content-based
regulation. This law's language correctly punishes the
criminal act of intending to defraud by claiming false
receipt of a military award or membership in the Armed
Forces.
4)Arguments in Support : According to the Vietnam Veterans of
America, California State Council, "ÝThe Vietnam Veterans of
America, California State Council] are proud to be the sponsor
of this legislation which creates the California Stolen Valor
Act. . . .
"Your bill is another important step to crack down on those
misrepresenting themselves as decorated veterans - those who
would steal valor from our comrades in arms." . . .
5)Previous Legislation :
a) AB 1829 (Cook), Chapter 366, Statutes of 2010, increased
the penalty from an infraction to a misdemeanor (or in the
case where the person committing the offense is a veteran
of the Armed Forces of the United States, an infraction or
a misdemeanor, as specified) for a person who, orally or in
writing, or by wearing a military decoration, falsely
represents himself or herself to have been awarded a
military decoration, with the intent to defraud. Defined
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"military decoration" to be a decoration or medal from the
Armed Forces of the United States, California National
Guard, State Military Reserve, or Naval Militia, or a
service medal or badge awarded to the members of those
forces, or the ribbon, button, or rosette of that badge,
decoration, or medal, or a colorable imitation of that
item.
b) SB 1482 (Correa), Chapter 118, Statutes of 2008,
mandated that an elected officer of a city, county, city
and county, or district in California, forfeit his or her
office upon conviction of a crime pursuant to the federal
Stolen Valor Act, which involves a false claim of receipt
of a military decoration or medal described in that act.
c) AB 282 (Cook), Chapter 360, Statutes of 2007, created
an infraction for a person to falsely represent himself or
herself, verbally or in writing, to have been awarded a
decoration or medal from the Armed Forces of the United
States, the California National Guard, State Military
Reserve, or Navel Militia; a service medal or badge awarded
to the members of such forces; a ribbon, button, or rosette
of such a badge, decoration or medal; or, a colorable
imitation of such item, with the intent to defraud.
d) AB 787 (DeVore), Chapter 457, Statutes of 2006, provided
that a person who falsely claims, represents or presents
himself or herself to be a veteran or member of the Armed
Forces of the United States, with the intent to defraud, is
guilty of a misdemeanor. Face-to-face solicitations
involving less than $10 are exempt from prosecution
REGISTERED SUPPORT / OPPOSITION :
Support
American Legion-Department of California
AMVETS-Department of California
California Association of County Veterans Service Officers
Military Order of the Purple Heart, Department of California
Vietnam Veterans of America, California State Council
Opposition
None
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Analysis Prepared by : Stefani Salt / PUB. S. / (916) 319-3744