"Stolen Valor and the First Amendment: Does Trademark Infringement Law Leave Congress an Opening"

In United States v. Alvarez, the Supreme Court struck down as unconstitutional the "Stolen Valor Act" of 2005. That Act made it a crime to falsely claim receipt of the Congressional Medal of Honor. A majority of the Court found the statute to be overbroad and violative of the First Amendment right of freedom of speech. Professors Susan M. Richey and John M Greabe of the University of New Hampshire School of Law, have written an interesting article about the case and the Act, entitled "Stolen Valor and the First Amendment: Does Trademark Infringement Law Leave Congress an Opening?", 47 New England Law Review 293 (2013).

This paper proceeds as follows. Part II addresses how the three Alvarez opinions deployed trademark law as a referent, but cautions against the dissent's suggestion that the Stolen Valor Act should have been conceptualized and upheld against a First Amendment challenge as a type of trademark anti-dilution statute. Part III explains why the Act could have been conceptualized as a trademark anti-infringement statute protecting the phrase "Congressional Medal of Honor" as a collective membership mark. Finally, Part IV argues that Congress may prohibit infringement of the "Congressional Medal of Honor" collective membership mark without running afoul of the First Amendment.

Text Copyright John L. Welch 2013