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Rebecca Tushnet, Stolen Valor and Stolen Luxury, in The Luxury Economy and Intellectual Property: Critical Reflections 121 (Haochen Sun, Barton Beebe & Madhavi Sunder eds., 2015).

Abstract: This chapter challenges the constitutionality in the U.S. of trademark doctrines such as anti-dilution and post-sale confusion law that suppress non-false speech. It draws a compelling connection to U.S. v. Alvarez, the Supreme Court case that found unconstitutional the Stolen Valor Act, a law which criminalized the act of falsely representing oneself as the recipient of any U.S. military decoration or medal. The Court ruled that the Act's failure to require any showing of harm beyond the falsity of the representation itself rendered the law unconstitutional.