BILL ANALYSIS Ó AB 1706 Page 1 Date of Hearing: March 15, 2016 Consultant: Matt Dean ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair AB 1706 (Chávez) - As Amended March 8, 2016 SUMMARY: Adds to the list of misdemeanors punishable under the California Stolen Valor Act. Specifically, this bill: 1)Updates the California Stolen Valor Act to require a conviction under the federal Stolen Valor Act of 2013 rather than the 2005 version, which the U.S. Supreme Court ruled unconstitutional. 2)Clarifies the intent requirements for misdemeanors punishable under the California Stolen Valor Act. 3)Defines "district" as "any agency of the state formed pursuant to general law or special act, for the local performance of governmental or proprietary functions within limited boundaries for purposes of the California Stolen Valor Act." 4)Defines "tangible benefit" as "financial remuneration, an effect on the outcome of a criminal or civil court proceeding, or any benefit relating to service in the military that is provided by a federal, state, or local governmental entity for purposes of the California Stolen Valor Act." 5)Adds the California National Guard, the State Military AB 1706 Page 2 Reserve, the Naval Militia, the national guard of any other state, or any other reserve component of the Armed Forces of the United States to the list of military service branches covered by the California Stolen Valor Act. 6)Adds to the list of misdemeanors punishable under the California Stolen Valor Act as any person who: a) Forges documentation reflecting the awarding of any military decoration that he or she has not received for the purposes of obtaining money, property, or other tangible benefit; b) Wears a uniform or military decoration authorized for use by the members or veterans of those forces for the purposes of obtaining money, property, or receiving a tangible benefit; c) Knowingly utilizes falsified military identification for the purposes of obtaining money, property, or receiving a tangible benefit' d) Knowingly, with the intent to impersonate, for the purposes of promoting a business, charity, or endeavor, misrepresents himself or herself as a member or veteran of the Armed Forces of the United States, the California National Guard, the State Military Reserve, or the Naval Militia by wearing the uniform or military decoration authorized for use by the members or veterans of those forces; and e) Knowingly, with the intent to gain an advantage for employment purposes, misrepresents himself or herself as a member or veteran of the Armed Forces of the United States, the California National Guard, the State Military Reserve, or the Naval Militia by wearing the uniform or military decoration authorized for use by the members or veterans of those forces. EXISTING LAW: 1)States that it is a misdemeanor for any person to falsely AB 1706 Page 3 represent himself or herself as a veteran when soliciting aid or selling property. (Pen. Code, § 532b, subd. (a).) 2)States that it is a misdemeanor for any person to falsely represent himself or herself as a veteran in an attempt to defraud. (Pen. Code, § 532b, subd. (b).) 3)States that it is a misdemeanor for any person to falsely represent himself or herself as a recipient of any "military decoration" in an attempt to defraud. If the individual is a veteran of any U.S. war, the individual is guilty of either an infraction or a misdemeanor. (Pen. Code, § 532b, subd. (c)(1) & (2).) 4)States that the California Stolen Valor Act does not apply to face-to-face solicitations involving less than ten dollars. (Pen. Code, § 532b, subd. (d).) 5)Defines "military decoration" for the purpose of this subdivision as" any decoration or medal from the Armed Forces of the United States, the California National Guard, the State Military Reserve, or the Naval Militia, or any colorable imitation of that item." (Pen. Code, § 532b, subd. (c)(3).) 6)States that any elected officer of the state or a city, county, city and county or district in this state forfeits his or her office upon the conviction of a crime under the California Stolen Valor Act. (Gov. Code, § 3003, Pen. Code, § 532b.) 7)States that any elected officer of the state or a city, county, city and county or district in this state forfeits his or her office upon the conviction of a crime under the federal Stolen Valor Act of 2005 if the crime involves a false claim to a "military decoration" or medal described in that Act. (Gov. Code, § 3003, 18 U.S.C. § 704.) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "It is important AB 1706 Page 4 to create conformity between state and federal law to ensure elected officials are held accountable to be honest about their service or lack thereof." 2)Background: Currently, California requires that an elected officer forfeit their office upon conviction of a crime pursuant to either the federal Stolen Valor Act of 2005 or the California Stolen Valor Act. The federal Stolen Valor Act was updated in 2013 after the Supreme Court ruled it was unconstitutional. (See United States v. Alvarez (2012) 132 S.Ct. 2537, 2556 [183 L.Ed.2d 574].) This bill updates the California Stolen Valor Act by requiring a conviction pursuant to the federal Stolen Valor Act of 2013. This bill also adds new misdemeanors to the California Stolen Valor Act and changes the intent requirement for a conviction under the Act to also mirror federal law. 3)First Amendment: The First Amendment of the United States Constitution protects the people's right to free speech from Congressional action. (U.S. Const., 1st Amend.) State action restricting free speech is likewise prohibited by the Due Process Clause of the Fourteenth Amendment. (First Nat. Bank of Boston v. Bellotti (1978) 435 U.S. 765, 779.) Not all speech is protected, but categories of unprotected speech are strictly limited. For example, child pornography, obscenity and criminal threats are considered unprotected speech. (U.S. v. Stevens (2010) 559 U.S. 460, 468-469.) If speech does not fall into one of these strictly defined categories, then that speech enjoys at least some level of First Amendment protection. The threshold question in determining what level of protection to give speech is whether the regulation is content-based or content-neutral. This reflects the understanding of the U.S. Supreme Court that not all speech serves the purposes for which the First Amendment was adopted. Specifically, the Court has said the highest rung of First Amendment protection is reserved for discussion of public issues and debate over the qualifications of candidates. (McIntyre v. Ohio Elections Comm'n (1995) 514 U.S. 334, 346-47.) For this reason, restrictions of speech based on the content of that speech AB 1706 Page 5 receive the strictest level of scrutiny by the courts. Such a content-based speech restriction only survives strict scrutiny if the government shows a compelling interest in regulating such speech, and the regulative means employed must be the least restrictive means available to achieve the government's ends. For content-neutral restrictions of speech, the less restrictive intermediate scrutiny test applies. (Ward v. Rock Against Racism (1989) 491 U.S. 781, 798-800.) Under intermediate scrutiny, the government's interest need only be legitimate, and their means chosen narrowly tailored so as to be reasonably necessary to achieve the government's ends. In contrast to strict scrutiny, the means chosen need not be the least restrictive means. (Id. at 800.) The Supreme Court has ruled on the speech implicated in this bill when it examined the federal Stolen Valor Act in the case of United States v. Alvarez, supra, 132 S.Ct. 2537. The Supreme Court's ruling on the federal Stolen Valor Act centers on the language used in the statute. The relevant provision of the federal Stolen Valor Act of 2005 reads: "Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both." The plurality -that is, four Justices- held this provision content-based and therefore subject to strict scrutiny. (Alvarez, supra, 132 S.Ct. at p. 2543.) Critical to their holding is that the statute prohibited false claims without any requirement of cognizable harm as a result of the false claims. The plurality stated that the government's interest is compelling, but that other means exist to achieve their ends without restricting protected speech. In particular, the Court held the combination of a database for medal recipients coupled with public condemnation would serve just as well to deter false claims regarding military service. (Alvarez, supra, at pp. 132 S.Ct. at pp. 2550-2551.) Because AB 1706 Page 6 alternative means exist to address the government's ends, the Court held the statutory provision unconstitutional. (Ibid.) The concurring Justices -here, two Justices- applied intermediate scrutiny because they found the false speech to be of limited value. (Alvarez, supra, 132 S.Ct. at p. 2552.) The false claims at issue here were easily verifiable, and therefore unlikely to aid in the debate of public issues which is the heart of the First Amendment's speech protections. However, the Court still held the statutory provision unconstitutional because of its potential to chill protected speech. Critical to the concurring Justices was the lack of an intent to cause some legally cognizable harm, such as obtaining unearned benefits from the VA or unearned employment preferences. (Id. at pp. 2555-2556.) The dissent would have upheld the statute as constitutional. (Alvarez, supra, 132 S.Ct. at p. 2557.) The language of the federal Stolen Valor Act has since been amended to reflect the Court's interpretation. An intent to cause some legally cognizable harm has been added. As of now, there has not been a challenge to the federal Act. Moreover, the Court specifically addressed the receipt of unearned benefits and the impacting of judicial proceedings in its holding in Alvarez and stated that such restrictions are likely constitutional. This bill's language largely mirrors the language of the federal Act. 4)Argument in Support: According to the American G.I. Forum of California and the AMVETS- Department of California, the co-sponsors of this bill, "We do not believe elected officials should benefit by lying about their military service and that they should be removed from office." 5)Prior Legislation: a) AB 167 (Cook), Chapter 69, Statutes of 2011, requires that elected officers forfeit their office upon conviction of any of the crimes specified in the California Stolen Valor Act in addition to the federal Stolen Valor Act. AB 1706 Page 7 b) AB 265 (Cook), Chapter 93, Statutes of 2009, expands the provision requiring local elected officers to forfeit office upon conviction of a crime pursuant to the federal Stolen Valor Act to include elected state officers. c) SB 1482 (Correa), Chapter 118, Statutes of 2008, provides that an elected officer of a city, county, city and county, or district in this state forfeits his or her office upon the conviction of a crime pursuant to the federal Stolen Valor Act, that involves a false claim of receipt of a military decoration or medal described in that Act. REGISTERED SUPPORT / OPPOSITION: Support American G.I. Forum of California (Sponsor) AMVETS-Department of California (Sponsor) American Legion - Department of California California Association of County Veterans Service Officers California State Commanders Veterans Council Military Officers Association of America, California Council of Chapters VFW-Department of California Vietnam Veterans of America-California Council Opposition None Analysis Prepared by: Matt Dean / PUB. S. / (916) 319-3744 AB 1706 Page 8