DENVER – The federal courts are wrestling with a question of both liberty and patriotism: Does the First Amendment right to free speech protect people who lie about being war heroes?
At issue is a three-year-old federal law called the Stolen Valor Act that makes it a crime punishable by up to a year in jail to falsely claim to have received a medal from the U.S. military. It is a crime even if the liar makes no effort to profit from his stolen glory.
Attorneys in Colorado and California are challenging the law on behalf of two men 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 Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect 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, argued that deliberate lies are not protected. He also said the Constitution gives Congress the authority to raise and support an army, and that 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 veterans coming home from wars in Afghanistan and Iraq are being embraced as heroes. Many of the cases involve men who simply got caught living a lie without profiting from it. Virtually all the impostors were ordered to perform community service.
In one case, a man posing as a Marine war hero was accused of using his hero status to receive discount airline tickets and a free place to stay near Phoenix.
Defense attorneys say the law is problematic in the way 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.
His claim aroused suspicion, and he was indicted 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 now before a federal appeals court.
The other person challenging the law is Rick Glen Strandlof, who claimed 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.
Military officials said they had no record that he ever served. He has pleaded not guilty, and a judge is considering whether to throw out the charge.
The Inland Valley Daily Bulletin in California quoted Alvarez as saying in 2007, "I must have mis-said things. It wasn't supposed to go that way." Strandlof's lawyer has said his client may suffer from bipolar disorder or other problems.
Attorneys challenging the law say that lying about getting a medal doesn't fit any of the categories of speech that the U.S. Supreme Court has said can be banned: lewd, obscene, profane, libelous or creating imminent danger to others, such as yelling fire in a crowded theater.
Army veteran Pete Lemon of Colorado Springs, who received the Medal of Honor for turning back an enemy assault and rescuing wounded comrades in Vietnam while injured himself, supports the law, saying that pretending to have a medal can bring undeserved rewards.
"It gives you the power to entice somebody into marriage," he said. "It could give you the power to be able to join an organization, get special treatment with regards to getting tickets to a football game, getting license plates, getting preferential treatment in a job situation."
Doug Sterner, a military historian, said the law embodies the wishes of the nation's first commander in chief, George Washington. Sterner noted that Washington created the Purple Heart, the nation's first military decoration, and wrote: "Should any who are not entitled to these honors have the insolence to assume the badges of them, they shall be severely punished."
"I think that speaks to the intent of the framers," Sterner said, "that George Washington saw this kind of lie outside the scope of this freedom-of-speech issue."
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