Courts to decide whether First Amendment protects lies about being a war hero

By Dan Elliott
Sunday, February 7, 2010

DENVER -- The federal courts are wrestling with a question of liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes?

At issue is the Stolen Valor Act, a three-year-old federal law that makes it a crime punishable by up to a year in jail to lie about receiving a U.S. military medal. It is a crime even if the liar makes no effort to profit from his stolen glory.

Lawyers in Colorado and California are challenging the act on behalf of two men who have been charged, saying the First Amendment protects almost all speech that doesn't hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.

Jonathan Turley, a professor at George Washington University's law school who is not involved in the two cases, said the Stolen Valor Act raises constitutional questions because it bans bragging or exaggerating about yourself.

"Half the pickup lines in bars across the country could be criminalized under that concept," he said.

Craig Missakian, a federal prosecutor in the California case, said deliberate lies are not protected. He said that the Constitution gives Congress the authority to raise and support an army and that this includes, by extension, "protecting the worth and value of these medals." The Stolen Valor Act revised and toughened a law that forbids anyone to wear a military medal that was not earned. The revised measure sailed through Congress in late 2006, receiving unanimous approval in the Senate.

Dozens of people have been arrested under the law at a time when troops coming home from wars in Afghanistan and Iraq have been embraced as heroes. Almost all of the impostors were ordered to perform community service.

In one case, a man posing as a Marine war hero was accused of using his status to get discount airline tickets and a free place to stay near Phoenix. Many of the cases, however, did not involve financial gain.

Defense attorneys say the law is problematic because it does not require the lie to be part of a scheme for gain. Turley said someone lying about having a medal to profit financially should instead be charged with fraud.

One of the men challenging the law is Xavier Alvarez of Pomona, Calif. He had just been elected to a water district board in 2007 when he said at a public meeting that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration.

That aroused suspicion, and he was indicted in 2007. Alvarez, who apparently never served in the military, pleaded guilty on condition that he be allowed to appeal on the First Amendment question. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000. The case is before a federal appeals court.

The other person challenging the law is Rick Glen Strandlof, who said he was an ex-Marine wounded in Iraq and received the Purple Heart and Silver Star. He founded an organization in Colorado Springs that helped homeless veterans.

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