Outside Publication

Of Locke and Valor: Why the Supreme Court’s Decision in United States v. Alvarez Does Not Foreclose Congress’s Ability to Protect the Property Rights of Medal of Honor Recipients

Veteran's Law Review, Vol. 6

2014

This article discusses the history and importance of military honors, with particular attention given to the Medal of Honor (the “Medal”) and its history. The Article then argues that, given the great labor required to earn the Medal, bona fide Medal recipients earn a property right in the honor and reputation associated with the Medal.

This Article then examines the United States Supreme Court’s recent decision in United States v. Alvarez with specific emphasis on why the Court held the provision of the Stolen Valor Act of 2005 prohibiting false claims to the Medal unconstitutional. Finally, this Article concludes by arguing that Congress’s attempts, both in the Stolen Valor Act of 2005 and in recent proposals from the House and Senate, fail to adequately protect the interests held by bona fide Medal recipients.

Given that this Article establishes a proprietary interest in the honor and reputation associated with the Medal, the Article proffers that Congress can better constitutionally protect those interests by prohibiting imposters from unlawfully appropriating that reputation through false claims to the Medal — a prohibition analogous to the constitutionally permissible common law prohibition on commercially appropriating another’s name, likeness, and reputation.

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