In 2007, under enemy fire near Khost, Afghanistan, Army medic Private First Class Monica Brown ran to a burning Humvee to aid wounded U.S. Soldiers. She treated their wounds while shielding them with her own body from heavy small arms, machine-gun, and mortar fire. Later, still under fire, she helped drag several of the wounded to rescue vehicles. For her valor she received the Silver Star.
Every service member knows similar stories of battlefield heroism so inspiring as to bring tears to one’s eyes. All veterans of active duty know the courage and sacrifice that personal combat awards represent. We honor those who wear badges of valor. In a world where the word “hero” is cheapened by thoughtless overuse, the respect in which we and many civilians hold highly decorated combat veterans is strong and enduring.
Those Vile Valor-Stealers
As universally respected as true heroes are, men and women in uniform equally revile those who would diminish heroic military sacrifices, the combat-decorated impostor. They are despicable scum. With a bold liar’s cunning, they understand that many civilians lack the knowledge to unmask their combat-award deceptions, although most civilians do appreciate the significance of those prestigious awards.
Bogus heroes are hardly a new phenomenon. The practice drew national attention with the 1998 publication of the book Stolen Valor , which exposed many false claims of personal combat awards. 1 It was the Stolen Valor Act, however, that “to protect the reputation and meaning of such decorations and medals” makes it a federal offense to make fraudulent claims regarding the receipt of military honors. 2 The 2005 act applies to such claims regarding the Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Purple Heart, “and other decorations and medals awarded by the President or the Armed Forces of the United States.” 3 Conviction of the offense requires no evidence of an effort to profit financially. The penalty for violation includes a monetary fine specified in earlier law regarding the wrongful wearing of each award, or imprisonment for not more than one year, or both.
Since its enactment, dozens of arrests have been made, and several convictions have been handed down, most often involving phony Marines claiming phony combat awards, including the Medal of Honor. Penalties have usually been in the range of a hundred hours of community service. Imprisonment, even for brief periods, has been rare. Given the act’s already low sentencing parameters, viewed by most service members as insultingly inadequate, mere community service in any amount adds fresh insult to injury. But at least the result is a federal criminal conviction.
Now, rulings in a California federal appellate court and a Colorado District Court have effectively killed the Stolen Valor Act.
Reversed and Dismissed
In 2007, at a public water district board meeting in Claremont, California, Xavier Alvarez claimed to be a retired Marine with 25 years’ service, wounded multiple times and awarded the Medal of Honor. In fact, he never served a day in any military branch. “Apparently, Alvarez makes a hobby of lying about himself to make people think he is ‘a psycho from the mental ward with Rambo stories. . . .’ In addition to his lies about military service, Alvarez has claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer (who was fired for using excessive force), and to have been secretly married to a Mexican starlet.” 4 His federal conviction for violation of the Stolen Valor Act was reversed in a 2-1 decision in August.
In Colorado, Rick Strandlof, aka Rick Duncan, restricted his lies to military matters, claiming to be a U.S. Naval Academy graduate who served two and a half tours in Iraq as a Marine Corps captain, earning a Purple Heart, and being awarded the Silver Star. Strandlof’s case was dismissed at trial in July. 5
The written opinions in both cases rest on similar legal grounds. While neither court had sympathy for the conduct of either individual, they were in agreement regarding the constitutional issue involved: First Amendment-protected speech.
“The sad fact is,” the Alvarez court wrote, “most people lie about some aspects of their lives from time to time. . . . But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised.” 6
Government prosecutors argued that, while some falsehoods may be constitutionally protected in the context of encouraging public debate and political discourse, the lies of Alvarez and Strandlof did not promote what lawyers refer to as the uninhibited marketplace of ideas. Prosecutors argued that the speech targeted by the act—lies about having received military honors—fits within the well-defined and narrowly limited classes of speech that are historically unprotected by the First Amendment.
A Lie is Just a Lie
In California, the 9th U.S. Circuit Court of Appeals responded that this was not like a case of constitutionally unprotected obscene speech, or defamation, or fraud, impersonation, perjury, or even fraudulent administrative filings, all of which (except obscenity) require at a minimum that the lie be willful and designed to cause some injury. Shouting “Fire!” in a crowded theater is speech of such a nature as to create a clear and present danger that Congress has a right to legislate to prevent it. The 9th Circuit found, however, that
Alvarez was not prosecuted for impersonating a military officer, or lying under oath, or making false statements in order to unlawfully obtain benefits. There was not even a requirement the government prove he intended to mislead. He was prosecuted simply for saying something that was not true. Without . . . requiring the speech to be related to criminal conduct, this historical exception from the First Amendment [that constitutionally unprotected speech be related to some criminal conduct or goal] does not apply to the [Stolen Valor] Act as drafted. 7
That argument is difficult to counter. Both courts agreed that such a restriction on speech required “strict scrutiny,” lawyer-speak for the most stringent level of judicial review, necessary because the constitutional interest involved—usually restrictions based on race or national origin, or on fundamental rights or, in these cases, on free speech—is among the most significant in our system of rights and freedoms. The Supreme Court has said, “strict scrutiny leaves few survivors.” 8 That is, very few laws subjected to strict scrutiny will pass constitutional muster. So it was with the Alvarez and Strandlof cases. The Stolen Valor Act’s failure to sufficiently tailor its limitation on speech in a narrow manner to serve a compelling government interest led to findings of unconstitutionality in both cases.
The dissenting judge in the Alvarez case offered a lengthy dissent that unfortunately strikes one as more stirring than legally compelling. In the closing paragraph of its opinion, the Strandlof court wrote, “Imposters such as defendant abase themselves. Fortunately, their disingenuousness is insufficient to undermine the stalwart and unswerving dignity and honor of our true military heroes, and of the military awards that recognize their sacrifices on behalf of a grateful nation.” 9 This was cold comfort to Soldiers, Sailors, Marines, and Airmen.
On enlistment or commissioning, every member of the Armed Forces swears an oath to support and defend the Constitution. That includes protecting the unquestioned right of scabrous individuals to demean the flag, to preach hate, and apparently to steal the valor of true warfighter heroes. The Stolen Valor Act, still on the books but legally defunct in Colorado and the 9th Judicial District and effectively everywhere in the United States, is a valiant but apparently failed effort to deal with the pernicious lies of impostors.
Just as this issue was going to press, government lawyers in Califonia asked the 9th Circuit to reconsider its ruling, and Colorado prosecutors were expected to appeal the 10th Circuit’s ruling in early November. One never knows what a higher court might decide, but the two verdicts seem well-supported by prior case law. Rather than further fruitless prosecutions, a better fix would be a re-drafted Stolen Valor Act that takes into account and meets the objections of the Alvarez and Strandlof courts. That, however, is easier said than done. Drafting a new law that articulates a “compelling government interest” in criminally prosecuting those who lie about claimed awards for valor, while narrowly tailoring the prohibition, would be quite tricky.
So, can we pad our temporary-duty claims and call it free speech? Can you lie to military criminal investigators? Can one claim to be a police officer and call it protected speech under the First Amendment? Can I apply for veterans’ benefits with a false claim of Agent Orange exposure? Of course not. The state has the power to assign police officer status and, in some jurisdictions, tax auditor status. The state also has the power to defend those statuses against impostors. How does that differ from the state granting awards for valor and protecting those grants from impostors? The difference is in the constitutional right involved, and the care with which the defending laws are drafted. False representations by word or conduct made to gain something of tangible value from another constitutes fraud. Under definitions that vary from jurisdiction to jurisdiction, fraud is a crime. 10
Rick Strandlof raised funds for a veterans’ organization he formed. Why wasn’t he prosecuted for fraud? His fundraising undoubtedly crossed state lines. Why wasn’t he prosecuted under federal mail- and wire-fraud statutes? That may be a matter of poorly exercised prosecutorial discretion, but it has little bearing on the constitutionality of the Stolen Valor Act. One hopes, however, that future prosecutors will closely examine bogus “heroes” for instances of criminal fraud that usually accompany their verbal misrepresentations.
For some of us, in uniform or retired, who take pride in the heroism of Bobo, Gordon, Shugart, Brown, and hundreds like them, the outcome of the Alvarez and Strandlof cases and the apparent demise of the Stolen Valor Act are painful and infuriating. Many, however, will reluctantly agree that those cases are the price of requiring our government to be most careful in attempting to decide what speech is and is not permissible.
2. Stolen Valor Act of 2005, Public Law No. 109-437, §2(1), 120 Statutes at 3266; and 18 United States Code § 704(b).
3. Ibid., Sec. 2. Findings.
4. U.S. v. Xavier Alvarez , Opinion, No. 08-50345, U.S.C.A. (9th Circuit, 17 August 2010), at 11852, unpublished at the time of this writing.
5. U.S. v. Rick Glen Strandlof , Criminal Case No. 09-cr-00497-REB (U.S. District Court for the District of Colorado, 16 July 2010).
6. Alvarez , supra, note 4, at 11851.
7. Ibid., at 11873.
8. City of Los Angeles v. Alameda Books, Inc. , 535 U.S. 425, 455 (2002) (Souter, J., dissenting).
9. Strandlof , supra, note 5, at 13.
10. Fraud, or its variations, is an offense under UCMJ Articles 121, 123, 123a and, most directly, 132.
Lieutenant Colonel Solis served 17 months in Vietnam as an amtrac officer. After attending law school he was the chief prosecutor for the 1st and 3d Marine Divisions and a military judge. At West Point, he taught constitutional law. He currently teaches at Georgetown University Law Center in Washington, D.C.
What Would General Washington Think?
By Juan Garcia, Assistant Secretary of the Navy (Manpower & Reserve Affairs)
On 19 August, I was contacted by the father of a Marine sergeant killed in action in Helmand Province, Afghanistan, earlier in the summer. I had met and come to know the young man’s family during his “Dignified Transfer” ceremony at Dover Air Force Base. The father, reiterating repeatedly that he made no presumptions, told me he was ordering the final engraving on his son’s gravestone. The sergeant’s unit buddies had indicated to the father that they believed an individual commendation would be forthcoming for his actions. The proud father, wishing to include such a distinction on the stone, simply wanted to know if it made sense to hold off on the engraving.
Meanwhile, that same week, the U.S. Court of Appeals for the Ninth Circuit ruled that a federal law known as the Stolen Valor Act, which criminalized the wearing of unearned military awards, was unconstitutional and an infringement on the right to free speech.
At a time when cheap knock-offs of Navy Crosses and Medals of Honor are available for sale on the Internet, those two events called attention to the relative value of military awards. To those who’ve earned them, and perhaps more so to their families, those pieces of cloth and metal are priceless symbols of service and sacrifice, of time spent away from children, of foregone opportunities, and in some cases, of the ultimate sacrifice. As Chief of Naval Operations Admiral Gary Roughead put it when asked about the ruling: “I really do believe that what we wear on our chest talks about what we did for our country.” The court’s decision reduces the false wearing of those awards to the equivalent of a barroom fib, removing the penalty and effectively the stigma from this shameless act.
When President George Washington created the forerunner of the Purple Heart for those who have “given of his blood in the defense of his homeland,” he declared that, “should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished.” The 2006 Stolen Valor Act revised and toughened legislation that forbids anyone to lie about having received a military medal or service badge. The measure sailed through Congress, receiving unanimous approval in the Senate. Since then, federal prosecutors have charged 48 people under the act.
Violators have ranged from the preposterous (the non-veteran from Houston who showed up at a political event wearing an Army uniform bedecked with parachute wings, a Purple Heart, two Distinguished Service Crosses, and a medal around his neck marking him as a Commander of the British Empire) to the shocking (the sitting Illinois circuit judge who claimed not one but two Medals of Honor—complete with a display in chambers for visitors. It was only after he applied for Medal of Honor license plates that he was eventually uncovered and forced to resign from the bench).
Perhaps most troubling are those who have gone a step further in their fraud and sought to profit from their shamefulness, like the retired Coast Guard chief warrant officer who claimed to be a decorated and combat-hardened SEAL and managed to get a disability rating from the government. Or the man who passed himself off as a former SEAL and prisoner of war and defrauded the Veterans Affairs Department and Social Security Administration of $280,000 over seven years.
The case that led to the Appeals Court decision involved a local official in California who depicted himself as a Marine and a recipient of the Medal of Honor. He was neither and had been indicted in 2007 and sentenced under the Stolen Valor Act to a $5,000 fine and 400 hours of community service at a veterans hospital. But his guilty plea came on condition that he be allowed to appeal on First Amendment grounds.
In the Ninth Circuit’s 2-1 ruling, the court declared the law unconstitutional because it infringed on the defendant’s freedom of speech, even if that speech was false. Judge Milan D. Smith Jr., writing for the majority, said that if the law were held constitutional, many everyday lies could become criminal acts: “There would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time.”
For the government to limit freedom of speech, it would have to show a compelling need, the decision argued, and not just that a person was lying about military honors. The majority concluded that the central intent of the law, to motivate and honor troops, could be accomplished without restricting speech. Finally, they also found no malice intended nor harm done, since the fabrication came during introductory remarks before a local board.
In his dissenting opinion in the case, Judge Jay S. Bybee asserted that no proof of harm was needed to limit the untruthful speech of the accused. “Such false representations not only dishonor the decorations and medals themselves, but dilute the select group of those who have earned the nation’s gratitude for their valor,” Judge Bybee wrote.
Congressman John Salazar (D-CO), who introduced the bill in 2005, said, “I am confident that upon appeal to the Supreme Court their misguided decision will be overturned. We live in a society that wants to honor our nation’s veterans.”
The question of where to draw the line between free speech and criminal conduct is a sensitive and important one, central to the values we swear to defend. When consideration of this law reaches the Supreme Court, an easy “bright line” test for prosecutions would consist of simply distinguishing acts of false bravado from false statements used to secure financial gain, and then prosecuting them as routine fraud. But the Stolen Valor Act envisioned something wider and more monumental. For example, one purporting to be a recipient of the Medal of Honor, the nation’s highest award typically presented posthumously, is simply different and deserves a heightened level of scrutiny. Arguably, congressional authority to criminalize such cases exists under the Constitution’s direction to support an army. Surely included in that authority is the protection of the worth and value of the symbols of the associated duties. If we as a nation hope to continue to recruit and raise the quality of personnel we do in an all-volunteer force, then protecting the badges of that sacrifice is in the national interest.
Not criminalizing the acts of those who would don such symbols without earning them, in the name of the same Constitution that legitimate heroes act to defend, belittles that sacrifice. I’m hopeful that the Supreme Court, the ultimate guardians of that document, will recognize the sacrosanct significance those medals hold in the constitutionally mandated congressional duty to support an army.