Original Stolen Valor Act deemed unconstitutional


By Harold B. Wolford - Veterans Corner



Editor’s note: This is part one of a two-part series on stolen valor

The Stolen Valor Act of 2005, signed into law by President George W. Bush on Dec. 20, 2006, was a U.S. law that broadened the provisions of previous U.S. law addressing the unauthorized wear, manufacture, or sale of any military decorations and medals. The law made it a federal misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal. If convicted, defendants might have been imprisoned for up to six months, unless the decoration lied about is the Medal of Honor, in which case imprisonment could have been up to one year. In United States v. Alvarez (2012), the U.S. Supreme Court ruled that the Stolen Valor Act was an unconstitutional abridgment of the freedom of speech under the First Amendment, striking down the law in a 6 to 3 decision.

The act was first introduced in the U.S. House of Representatives on July 19, 2005, by Rep. John Salazar, a Democrat from Colorado, as H.R. 3352. It was introduced in the Senate by Sen. Kent Conrad, a Democrat from North Dakota, on Nov. 10, 2005, as S. 1998. The Senate version was passed unanimously on Sept. 7, 2006. The House passed the Senate version, S. 1998, on Dec. 6, 2006.

The purpose of the act was to strengthen the provisions of federal law (18 U.S.C. § 704) by broadening its scope and strengthening penalties. Title 18 of the United States Code is the main criminal code of the federal government of the United States. The title deals with federal crimes and criminal procedure. In its coverage, Title 18 is similar to most U.S. state criminal codes, which typically are referred to by such names as Penal Code, Criminal Code,\ or Crimes Code. Typical of state criminal codes is the California Penal Code. Many U.S. state criminal codes, unlike the federal Title 18, are based on the Model Penal Code promulgated by the American Law Institute. Specific new provisions in the act included granting more authority to federal law enforcement officers; broadening the law to cover false claims whereas previously an overt act had to be committed; covering the mailing and shipping of medals; and protecting the reputation and meaning of military heroism medals.

The act made it illegal for unauthorized persons to wear, buy, sell, barter, trade, or manufacture “any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces.” In the 18 months after the act was enacted, the Chicago Tribune estimated there were 20 prosecutions. The number increased as awareness of the law spread.

The act was passed to address the issue of persons claiming to have been awarded military awards to which they were not entitled and exploiting their deception for personal gain. For example, as of June 2, 2006, there were only 120 living Medal of Honor recipients, but there were far more known imposters. There were also large numbers of people fraudulently claiming to be Navy SEALs and Army Special Forces, among others.

The Orders and Medals Society of America (OMSA), an organization of collectors, opposed the version of the bill that passed. OMSA was concerned about the changes to Title 18 USC; that in its judgment implied that any movement or exchange of medals was illegal.

Legal challenges: United States v. Strandlof. Rick Strandlof, founder of Colorado Veterans Alliance, was accused of seeking to raise funds for that organization by posing as Marine Capt. “Rick Duncan” and claiming to have received a Silver Star and Purple Heart in the Iraq War. In January 2010, he challenged the constitutionality of the Stolen Valor Act in U.S. District Court in Denver, Colorado. Strandlof’s attorney believed the law was too vague and that “protecting the reputation of military decorations is insufficient to survive (strict scrutiny)”, a level of judicial review that requires the government to justify any limitation it places on free speech. The Rutherford Institute, a Virginia-based civil liberties group, joined in the case on Jan. 20, 2010. “Such expression remains within the presumptive protection afforded pure speech by the First Amendment,” the Institute’s attorney wrote. “As such, the Stolen Valor Act is an unconstitutional restraint on the freedom of speech.”

On July 16, 2010, a federal judge in Denver ruled the Stolen Valor Act is “facially unconstitutional” because it violates free speech and dismissed the criminal case against Strandlof who lied about being an Iraq war veteran. Strandlof, 32, was charged with five misdemeanors related to violating the act – specifically, making false claims about receiving military decorations.

U.S. District Judge Robert E. Blackburn issued his decision rejecting the prosecution’s argument that lying about having military medals dilutes their meaning and significance. “This wholly unsubstantiated assertion is, frankly, shocking and, indeed, unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor,” Blackburn wrote. “To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by considerations of whether a medal may be awarded simply defies my comprehension.”

Attorney Chris Beall, who filed an amicus curiae brief on behalf of the ACLU of Colorado, said the decision is remarkable. “The First Amendment protects speech we don’t like,” he said. “We don’t need the First Amendment for speech people like. The government cannot criminalize a statement simply because it is false, no matter how important the statement is. Beall points out Strandlof wasn’t charged with stealing money meant for the veterans group, adding that laws are already in place for those crimes. “That’s plain-old, regular-vanilla everyday fraud, and we do prosecute that every day,” he said. “Congress does not need a special statute to prevent people from using false claims of valor in order to prevent fraud.” John Wagner, executive director of the Warrior Legacy Foundation, a veterans group that lobbied for Strandlof’s prosecution, said he will push for an appeal. A spokesman for the U.S. attorney in Denver said prosecutors are reviewing the decision and haven’t decided whether to appeal. The spokesman said that decision would be made by the U.S. Justice Department in Washington and prosecutors in Denver.

On Jan. 27, 2012, the U.S. Court of Appeals for the Tenth Circuit overruled the district court and reinstated the charges against Strandlof. Two judges on the three-judge panel held that false statements are not worthy of constitutional protection. In dissent, Judge Jerome Holmes wrote that the majority was reading language into the act to justify upholding it. On July 2, 2012, the Tenth Circuit vacated its previous opinion, writing, “In light of United States v. Alvarez, we vacate both the opinion and the judgment issued on January 27, 2012.”

https://www.delgazette.com/wp-content/uploads/sites/40/2021/04/web1_Wolford-3.jpg

By Harold B. Wolford

Veterans Corner

Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.

Harold B. Wolford is president of the Vietnam Veterans of America Chapter 1095. He served in the United States Army from 1970 to 1973.