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July 16, 2010

Court Overturns "Stolen Valor Act", Lets Lying Bastard Off The Hook

And sadly, I agree with the court.

First, the story....

A federal judge in Denver has ruled the Stolen Valor Act is "facially unconstitutional" because it violates free speech and dismissed the criminal case against Rick Strandlof, a man who lied about being an Iraq war veteran.

...Strandlof, 32, was charged with five misdemeanors related to violating the Stolen Valor Act - specifically, making false claims about receiving military decorations.

He posed as "Rick Duncan," a wounded Marine captain who received a Purple Heart and a Silver Star. Strandlof used that persona to found the Colorado Veterans Alliance and solicit funds for the organization.

Actual veterans who served on the board were suspicious of his claims and the FBI began investigating.

The court's opinion is here (pdff) and it's a relatively short and interesting read.

On the government's position that lying about military service isn't protected speech.

The government’s argument, which invites it to determine what topics of speech “matter” enough for the citizenry to hear, is troubling, as well as contrary, on multiple fronts, to well-established First Amendment doctrine. See Riley v. National Federation of the Blind of North Carolina, (“The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners[.]”) (citation and internal quotation marks omitted); see also United States v. Playboy Entertainment Group, Inc., (2000) (“We cannot be influenced, moreover, by the perception that the regulation in question is not a major one because the speech is not very important.”).

...The government does not seriously contest that the Stolen Valor Act criminalizes speech on the basis of its content. “Content-based restrictions on speech are those which suppress, disadvantage, or impose differential burdens upon speech because of its content.” Golan v. Gonzales. Stated inversely, “[g]overnment regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism. Given these standards, there is little doubt that the Stolen Valor Act is content-based. By definition, the speech regulated is speech about a particular topic –the speaker’s claim to have been awarded a particular military medal or decoration.

The effect on such speech is not incidental; the entire purpose of the Act is to suppress those precise utterances. The Act, in other words, is justified by a desire to curb speech about a specific topic. I therefore have little trouble in concluding that the Stolen Valor Act constitutes a content-based restriction on speech.

(Note: I removed some of the court citations to clean things up)

There's a lot more and as I said, it's a quick and easy read.

A lot of vets are understandably outraged.

Jon at This Aint Hell takes issue with the judges contention there are no victims.

CDR Salamander
is unimpressed with the idea that wearing medals is the same as speech.

I think the law would be on better constitutional ground if it stuck to medals and uniforms (though the judge dealt with that by referencing SCOTU's flag burning decision) but once it got into the notion of criminalizing lying to impress a chick at a bar with a load of BS it pretty clearly crossed a constitutional line.

A lot of the Supreme Court 1st amendment jurisprudence is a mess but I tend to the side of the speech absolutists (which include Justice Scalia as Gabe pointed out to me). Yes, it can lead to crappy things but I'm a whole lot more comfortable with more things being allowed than the government getting into the business of picking and choosing what's ok.

So it saddens me to be on the other side of so many bloggers and vets I respect but I promise that should I find myself on a jury for the trial of a vet accused of punching one of these SOBs, rest assured of at least one not guilty vote no matter what the evidence.

Thanks to Gabe for the news link.

Oh and just to be clear, this case has nothing to do with attempting to get any sort of benefit based on one's veteran status. Trying to get something from the VA or other government service by lying about being a vet is still fraud.

UPDATE: In the comments "I R A Darth Aggie" lays out something I absolutely agree with, the guy should be charged with the underlying fraud involved in the case.

Then the state of Colorado should go after him for fraud and grand theft. So far as I know, neither of those are covered by the First Amendment. And if he did any fund raising across state lines? nail his ass with federal charges, too.

UPDATE 2: Eugene Volokh, who filed an amicus brief in the case seems to generally disagrees with the decisions but offers up a possible compromise construction of the statute that protects vets and speech.
(see his update)

Added (Much Later)...

As I keep thinking about this I did a poor job of explaining one key point...given the laws in this country the harm must be particular and identifiable. It's simply not part of ours law to say a group has been harmed or defamed by an action.

The idea that someone can 'steal status' is too vague to be subject to criminal prosecution. From whom does one steal it?

The court's opinion gets into this in footnote 7.

Although the government argues in a different context that false claims to military honors damage the reputation of those awards (as discussed more fully below), it does not argue for application of a defamation-like standard to claims under the Stolen Valor Act. Nor could it, as such “group libels” are not constitutionally cognizable, except in circumstances clearly inapplicable here.

I think this case is a terrible test for this law because this guy did real, actionable damage...fundraising based on false claims. The people who gave him money certainly seem to have a criminal complaint under traditional fraud statutes.

I would support adding this on to existing crimes as an aggravating factor (for example "aggravated fraud under the guise of being a veteran/recipient of military medal") that might lead to a harsher sentence.

digg this
posted by DrewM. at 04:24 PM

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