In 1967, during an enemy night attack in Quang Tri Province, South Vietnam, Marine Second Lieutenant John Bobo’s right leg was severed below the knee by mortar fire. He refused evacuation and instead took a position to cover the movement of his men. He was killed while firing into the attacking enemy, his severed leg jammed into the ground to stem the bleeding. For his valor under fire, Lieutenant Bobo was posthumously awarded the Medal of Honor.
In Mogadishu, Somalia, in 1993, Army Master Sergeant Gary Gordon and Sergeant First Class Randy Shugart leaped from a hovering helicopter to go to the aid of a Black Hawk helicopter pilot downed by Somali irregulars. Gordon and Shugart knew their ammunition was limited and their chances of surviving against hundreds of heavily armed oncoming Somalis were virtually zero. They didn’t hesitate. Both were awarded posthumous Medals of Honor.
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.
What Next?
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.
1. B.G. Burkett and Glenna Whitley, Stolen Valor: How the Vietnam Generation Was Robbed of its Heroes and its History (Dallas TX: Verity Press, 2005).
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.