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How a Gay Man's Harmless Political Expression May Lead to Prison Time—A Commentary by Taylor Asen ’12, Jeffrey Gurrola ’12, Ramya Kasturi ’12 and Larry Kornreich ’12

The following commentary was posted on the Huffington Post on October 6, 2010.

How a Gay Man's Harmless Political Expression May Lead to Prison Time
By Taylor Asen ’12, Jeffrey Gurrola ’12, Ramya Kasturi ’12 and Larry Kornreich ’12

On the night of December 12, 2009, Michael McManus committed a heinous crime for which he may serve time in federal prison. Here is the story of what he did.

McManus, an openly gay man living in Houston, Texas, watched on December 12 as Houston elected Annise Parker as its first openly gay mayor. A lifelong advocate of gay rights and a onetime victim of the United States military's outdated and discriminatory policies towards homosexuals, McManus knew as much as anyone what an amazing achievement it was to elect a gay mayor in a major U.S. city, and especially in deep red Texas. At the same time, however, he knew that this was only one small step towards equal rights for the LGBT community. That night, McManus decided to attend the public celebration in honor of Parker's victory. As a reminder to the gay community and the people of Houston of the lingering effects of discrimination, McManus donned a military uniform and an array of medals. Wearing this outfit, he went to Parker's celebration party. When it was over, he went home.

Perhaps you are wondering when we will get to the heinous crime that may well put McManus in a federal penitentiary. Believe it or not, there is nothing more to tell: Michael P. McManus has been charged under a federal law called the "Stolen Valor Act" with wearing a uniform and military medals that he did not earn.

The Stolen Valor Act was signed into law in December 2006, expanding upon existing laws criminalizing the unauthorized wearing of military decoration. While portions of the law are directed at false claims of war heroics, others make it a crime merely to wear a uniform or medal without government authorization. Certain sections of the law regarding false claims have been deemed unconstitutional -- in violation of the First Amendment right to free speech -- by the Ninth Circuit U.S. Court of Appeals and by a U.S. District Court in Denver, Colorado. The Ninth Circuit wrote that even outright lies about past service are protected speech as long as they are not used to gain a personal benefit at the expense of another person, "in order that clearly protected speech may flower in the shelter of the First Amendment." The Department of Justice has appealed both the Ninth Circuit and the District Court of Colorado decisions.

The Stolen Valor Act is in clear violation of the First Amendment right to freedom of expression. Michael McManus engaged in an act of political expression, challenging a discriminatory and archaic policy that the U.S. military maintains -- Don't Ask, Don't Tell. The Supreme Court has repeatedly recognized that political speech is at the core of the First Amendment's protections. McManus's outfit that night was over-the-top: he wore no fewer than 27 medals and badges, both U.S. and foreign. After a single glance at his photo it would be ludicrous to assert that anyone actually thought that it was anything but a costume. Yet now he is in jeopardy of spending several years in prison.

According to the legislative history accompanying the 2006 Stolen Valor Act, the purpose behind this law is to protect the reputation and meaning of military decoration and medals. According to the Act's authors, fraudulently wearing an unearned military medal lessens the value of a legitimately earned medal. Leaving aside the legitimacy of this claim -- that one might no longer seek to earn a military medal because someone fraudulently wore a similar medal -- the Supreme Court has said that the government cannot outlaw political expression for strictly symbolic purposes. In Texas v. Johnson, which struck down a Texas state law prohibiting flag burning, the Court proclaimed that a state cannot create a protective fence around certain symbols in an effort to limit the kinds of messages that can be made concerning those symbols.

Just as the state cannot outlaw the burning of the American flag, it surely should not be able to outlaw the wearing of unearned military medals as a form of political commentary. One might argue that a military medal has more value or less value than a flag, but it is precisely such distinctions that we do not want Congress to make. It should not be for Congress to decide that certain objects' symbolic value warrants trampling on the right of American citizens to engage in free speech.

Furthermore, even if the government has a permissible interest in protecting these medals from fraudulent adornment, the language of the statute casts a much broader net. By disallowing any wearing of the medals or uniform, without regard to purpose, the statute prevents not only political expression, but also acts as harmless as wearing a military-themed costume for Halloween.

When a former member of our armed forces who was discharged under honorable conditions for coming out decides to attend a political event in military uniform to bring attention to an important political issue, that action should not lead to a multi-year prison sentence. Michael McManus's courage in coming out, despite a hostile and discriminatory military policy, and his courage in speaking out to bring attention to that policy, should be celebrated. Instead, McManus has been berated in the press and faces criminal prosecution.

One need look no farther than the internet to see that Michael McManus's form of political commentary was certainly not popular. But popular speech hardly needs any protection. It is the right to engage in unpopular speech -- speech challenging the status quo, which the angry mob or the tyrannical government would be tempted to suppress -- that the First Amendment protects for all of us. When that protection is denied to one person, it is denied to us all.

The authors are students at Yale Law School and are members of the school's LGBT Litigation Project. As a part of that project, they are assisting James T. Fallon in his defense of Michael McManus.