By Pat Murphy
The Daily Record Newswire
First Amendment cases can be tough. The unpopular opinion gets protected. That’s the price of freedom.
Okay, I get that.
But I doubt if the Founding Fathers really intended that the First Amendment provide cover for a multi-billion dollar adult entertainment industry to coarsen our culture.
And with all due respect to the current members of the U.S. Supreme Court, I just can’t wrap my mind around their decision that the Constitution somehow protects someone’s right to produce horrific images of animal torture.
But First Amendment jurisprudence must really be off the rails if it leads a federal judge in Colorado to conclude that it’s an exercise of free speech to lie about one’s heroism and sacrifices on the battlefield in the service of our country.
That remarkable conclusion was reached in the case of Rick Strandlof. The government has charged Strandlof with violating the federal Stolen Valor Act.
The Act makes it a crime “to falsely represent[] [oneself], verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States. ...”
Prosecutors allege that Strandlof falsely represented himself to have been awarded a Purple Heart on four different occasions in 2006 and 2009, and falsely represented that he had been awarded a Silver Star on one occasion in 2009.
According to The Denver Post, Strandlof made these claims posing as Rick Duncan, a wounded Marine captain, in an effort to solicit funds for the Colorado Veterans Alliance — an organization allegedly founded by Strandlof.
Seeking to avoid the charges, Strandlof argued that the Stolen Valor Act is facially invalid as a content-based restriction on free speech.
On Friday, U.S. District Judge Robert E. Blackburn agreed that the Act violates the First Amendment and dismissed the charges against Strandlof.
The decision appears to be the second of two decisions addressing the constitutionality of the Act.
In a 2008 decision from the U.S. District Court for the Central District of California, Judge R. Gary Klausner rejected a First Amendment challenge to the Act raised by Xavier Alvarez, who falsely claimed to have received the Congressional Medal of Honor.
Alvarez’s appeal is currently before the 9th Circuit.
Unfortunately, the decision in U.S. v. Alvarez wasn’t compelling enough for Judge Blackburn in Strandlof’s case.
The government tried to argue that, because Strandlof was not conveying a political message, speaking on a matter of public concern, or expressing a viewpoint or opinion, his speech did not merit constitutional protection.
But Blackburn concluded that this argument has been foreclosed by the U.S. Supreme Court’s decision earlier this year in U.S. v. Stevens.
In Stevens, the Court found unconstitutionally overbroad the federal statute criminalizing the commercial creation, sale, or possession of certain depictions of animal cruelty.
Judge Blackburn said that Stevens “counsels extreme delicacy in accepting the government’s proposal to remove defendant’s speech entirely from the realm of First Amendment consideration.”
The one argument left to the government under Stevens was that the Stolen Valor Act is a legitimate restriction on fraudulent speech.
But that argument didn’t fly for Judge Blackburn.
“The principal difficulty I perceive in trying to shoehorn the Stolen Valor Act into the First Amendment fraud exception is that the Act, although addressing potentially fraudulent statements, does not further require that anyone have been actually mislead, defrauded, or deceived by such misrepresentations. To survive constitutional scrutiny, a common law cause of action for fraud requires proof of harm or detrimental reliance. ...
“Yet as written, the Act criminalizes the mere utterance of the false statement, regardless whether anyone is harmed thereby. It is merely fraud in the air, untethered from any underlying crime at all. Given the clear language of Stevens, I cannot find such incipient and inchoate criminality completely beyond the purview of the First Amendment,” the judge wrote.
Having dispensed with the fraud argument, Judge Blackburn proceeded to conclude that the Act was a content-based restriction on speech subject to strict scrutiny.
It was unfortunate that the judge rejected the notion that the Act serves the compelling interest of protecting the sacrifice, history, reputation, honor, and meaning associated with military medals.
Nor was he impressed by the government’s claim that the Act promotes a compelling interest in promoting heroism and sacrifice by the members of our armed forces.
“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. Indeed, the qualities of character that the medals recognize specifically refute the notion that any such motivation is at play. ...
“I find it incredible to suggest that, in the heat of battle, our servicemen and women stop to consider whether they will be awarded a medal before deciding how to respond to an emerging crisis,” the judge said. (U.S. v. Strandlof)
Now that view I can appreciate.
Heroism on the battlefield comes without much if any forethought, mostly from instinct born of repetitive training, doing what is required to save a buddy.
So at the moment the promise of a medal is as irrelevant as anything could be.
But that doesn’t mean there isn’t something innately criminal for someone to falsely claim the valor that others earn on the battlefield.
And whether it takes some higher court or a tweaking by Congress, we can be hopeful that there will be a price to pay for those who attempt to steal the valor of others.
