Stolen Valor

Are lies protected under the First Amendment?
Cover Story
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AP Photo by Marco Garcia

A group of US Marines march in a parade honoring Japanese American WWII veterans on Dec. 17 in Honolulu. The parade honored members of the 100th Infantry Battalion, the 442nd Regimental Combat Team, and the Military Intelligence Service. Congress recently awarded the three Army units the Congressional Gold Medal.

After an interview with Vietnam veteran B.G. Burkett, it’s typical for a reporter to soon receive a 20-page fax from the Dallas resident.

The fax includes a stack of letters dating as far back as 1992 to Burkett from officials at federal agencies including the Naval Criminal Investigative Service, the Department of Justice — even a photocopy of an award from the FBI.

This is the world that the founder of Stolenvalor.com lives in — where words are not always the truth and any claims of achievement must be backed up with evidence.

Since the late 1980s, Burkett has made it his business to hunt down people who lie about their military honors — if they even served, at all. In 1997, he started a website where people can look up verified military heroes and also report imposters.

And he knows his efforts have passionate supporters inside and outside the government. For the last six years, the federal Stolen Valor Act has made it a crime to make false claims about awards received for military service.

But since the act was made into law, it has been challenged in court. The constitutionality of the act is now before the U.S. Supreme Court, which will decide the case this term.

In 2010, the U.S. Court of Appeals in San Francisco (9th Cir.) struck down the law in United States v. Alvarez — the case now before the high court — saying the government cannot play the role of “truth police.” The case involved a man running for the Municipal Water District board in a small California town who claimed he was a retired Marine and had been awarded the Congressional Medal of Honor.

Like a number of the defendants charged under the Stolen Valor Act, Xavier Alvarez never even served in the military.

In January, the U.S. Court of Appeals in Denver (10th Cir.) upheld the constitutionality of the Stolen Valor Act in a case against the founder of the Colorado Veterans Alliance — a man who also never served in the armed forces, despite telling people he was wounded in Iraq and awarded the Purple Heart and Silver Star. Then there was the federal trial court in Iowa that found the statute to be an unconstitutional content-based restriction on speech, while a Virginia federal trial court upheld the law.

The Supreme Court will determine once and for all if criminalizing a specific kind of lying is a violation of the First Amendment.

During the February oral arguments, the justices pressed both parties’ counsel to describe what “harm” is caused by lying about military medals.

A number of the justices also presented the attorneys with hypothetical situations that Americans could face if the Stolen Valor Act remained, such as repercussions for lying on resumes, extramarital affairs, falsified high school diplomas and even lying to a date.

It’s not just Alvarez, but media and First Amendment advocates who have called for the act to be abolished.

The Reporters Committee for Freedom of the Press and 23 news media organizations submitted a friend-of-the-court brief in support of striking down the act. “The government may have an undoubted interest in preserving the meaning of military honors, particularly within the military itself,” the Reporters Committee brief argued. “But that does not mean that it may use criminal law to compel that result.”

Jean-Paul Jassy, a Los Angeles-based media attorney who authored a friend-of-the-court brief on behalf of the California-based First Amendment Coalition, said, “I think the distaste for what Mr. Alvarez has done is very well justified, but that doesn’t mean the speech ought to be criminalized. The concern is that this would create a new category of unprotected false speech. That’s what we were focusing on.”

The principle it boils down to is this: if lying can be a crime, can anyone who lies and says something the government deems reprehensible be thrown in jail? If a legislature chooses to criminalize lying to children about Santa Claus, can a parent be jailed for that speech? What about a man lying to his partner about an affair, or politicians who brag that they eliminated crime in a tough neighborhood?

For reporters, who cover factual disputes all the time, the question is even more serious: What if you write something that turns out to be false? Instead of being asked to run a correction or facing a libel lawsuit, what if you were arrested?

“Loosening that standard (of false speech) could be dangerous for freedom of speech, generally, but also freedom of the press,” Jassy said. “The fear is that it could then spread to other kinds of lying that the government doesn’t like.”

“We hope it wouldn’t spread. But that is the concern.”

Doug Sterner, a military veteran who runs the Home of Heroes website where some medal recipients can be verified, said he can’t understand why journalists are against the Stolen Valor Act.

Journalists, he said, are the biggest victims of fraudsters who lie about military records.

“That’s why journalists should be the most fervent cheerleaders of the Stolen Valor Act — because this is a problem they run into on a daily basis,” he said. “There was a time when the worst thing you could do is lie to a journalist. There was a time when nothing outraged a journalist more than to be lied to. We’re trying to fix that problem.”

Supreme Court oral argument

New Media and the Law Photo

Federal Public Defender Jonathan Libby, who represented Xavier Alvarez, speaks to the media at the Supreme Court after oral argument.

On Feb. 22, a long line formed on the marble plaza outside of the U.S. Supreme Court building. Near the front of the line were a handful of men and women in military uniform.

During the hour-long oral argument, Solicitor General Donald Verrilli talked about the courage and values of service members and how it is the country’s duty, essentially, to stand up for the men and women in uniform by protecting the integrity of honors bestowed upon them.

“The Stolen Valor Act continues that tradition by prohibiting knowingly false statements that one has been awarded a military honor,” Verrilli told the court. “It regulates a carefully limited and narrowly drawn category of calculated factual falsehoods. It advances a legitimate substantial, indeed compelling, governmental interest and it chills no protected speech.”

Justice Sonia Sotomayor asked what Verrilli thought about a Vietnam War protestor who holds up a sign that says “I won a Purple Heart — for killing babies.” If it’s a lie, and done as a protest, is that protestor liable under that act?

Verrilli said it would be understood by the audience as “an exercise in political theater” and not within the scope of the statute.

“Somewhat dangerous, isn’t it, to subject speech to the absolute rule of no protection?” Sotomayor responded. “Which is what you’re advocating, I understand, that there are no circumstances in which this speech has value.”

Chief Justice John Roberts expressed similar concerns.

“Well, where do you stop?” he asked. “I mean, there are many things that people know about themselves that are objectively verifiable where Congress would have an interest in protecting. High school diploma. It is a crime to state that you have high school diploma if you know you don’t. That’s something you can check pretty easily. And Congress can say: We want people to finish high school. It’s a big thing to have a high school diploma. So we want to make sure nobody goes around saying they do when they don’t.”

Later in his argument, Verrilli said the law was so narrow that it left enough “breathing space” for satire and “political theater.”

“The whole breathing space thing almost has it backwards,” said Justice Anthony Kennedy. “It presumes that the government is going to have a ministry of truth and then allow breathing space around it, and I just don’t think that’s our tradition. On the other hand, I have to acknowledge that this does diminish the medal in many respects.”

When federal public defender Jonathan Libby began his argument, he was able to get out three sentences before Chief Justice Roberts asked him, “What is the First Amendment value in a lie, a pure lie?”

“Personal autonomy,” Libby responded, saying it means that people should be able to “exaggerate and create.” But Justice Roberts corrected him and said, “No, not exaggerate — lie.”

Several justices pressed Libby to explain the First Amendment value in a lie.

“Well, another value is the fact that the purpose of the First Amendment was a limit on government power,” Libby said. “Our founders believed that Congress as a general principle doesn’t get to tell us what we as individuals and cannot say.”

Chief Justice Roberts responded that in numerous areas, the government actually can tell Americans what they can’t say and cited defamation, trademark and perjury.

“You acknowledge that the First Amendment allows the prohibition or the regulation of false speech if it causes at least certain kinds of harms,” Justice Samuel Alito told Libby. “And the problem I have with your argument is determining which harms you think count and which harms don’t count.”

Libby said that when the lie includes something of value, the lie becomes fraud. “And fraud is something that the government does have the right to prosecute,” Libby said.

Some of the justices pushed Libby to define “value” in this context.

Chief Justice Roberts asked whether someone who lies during a campaign then wins could be prosecuted because the office is something of value. Justice Alito asked about a person lying while dating a potential rich spouse. And Justice Antonin Scalia asked if a lying decorated military hero is thrown a parade, isn’t that something of value?

“That’s a difficult question, your Honor,” Libby said.

Justice Alito retorted, “Well, that’s sort of the question we have to answer here.”

Sedition Act of 1798

The concept of criminalizing lying about military medals may be relatively new, but prosecuting and criminalizing false speech is not.

Both the Reporters Committee and First Amendment Coalition briefs point to the Sedition Act of 1798, which made it a crime to “write, print, utter or publish… any false, scandalous and malicious writing or writings against the government.”

But the act, which expired in 1801, became a tool for lawmakers, who attacked newspaper editors who spoke out against them, according to journalism historians. Of the 10 people convicted under the act, seven were journalists. In addition, an eighth journalist was prosecuted, but acquitted.

“If you can use false fact as the justification for prosecuting speech, then you can use any false statement as the reason for the prosecution when the motive is something more political,” said Robert Corn-Revere, a Washington, D.C. media lawyer and author of the Reporters Committee’s brief.

Often times, it is the most offensive speech that requires the most protection — for example, the court’s decision on burning the American flag in Texas v. Johnson, Corn-Revere said.

“Obviously, it’s controversial and deeply offensive,” he said. “It is speech without significant value whatsoever, yet the court has said it is protected as core political speech . . . most important First Amendment cases protect deeply unpopular speech or what people would consider worthless speech.”

During oral argument, Justice Sotomayor asked a related question.

“What harm are we protecting here? I thought that the core of the First Amendment was to protect even against offensive speech,” she said. “We have a legion of cases that said your emotional reaction to offensive speech is not enough. . . you can’t really believe that a war veteran thinks less of the medal that he or she receives because someone’s claiming fraudulently that they got one. They don’t think less of the medal. We’re reacting to the fact that we’re offended by the thought that someone’s claiming an honor they didn’t receive.”

Passionate patriotism

Sterner said supporters of the Stolen Valor Act are not criminalizing lies. “We’re criminalizing impersonation,” he said. “The Stolen Valor Act does not stop anyone from lying, it stops them from impersonating a decorated or wounded military veteran.”

Sterner, who lives in Alexandria, Va., cited numerous cases of quintessential violators of the law — including Alvarez and Rick Strandlof, who founded the Colorado Veterans Alliance yet never served in the armed forces. He also knows of numerous anecdotal tales that are whispered in the military community. For example, there’s the story of the disabled man who claimed he was a wounded veteran from tours in Iraq and Afghanistan. He received an privately funded, all-expenses paid hunting expedition for wounded warriors. The man never even served in the military.

Burkett, who served as an Army ordinance officer in Vietnam, said he was helping raise funds for a Vietnam War memorial in Texas in the mid-1980s when he first heard about people who lied about their military achievements. He was incensed. The impersonators made military veterans look bad, he said. The more Burkett researched, the more he found people who used fake military awards to gain veteran benefits — whether formally from the Department of Veterans Affairs or on an every day basis from the generosity of military supporters.

“We lost 756 people from my unit,” Burkett said. “Every single one of these military frauds — effectively, in my world — said they stood shoulder to shoulder with the men who died. It’s a form of sacrilege for me.”

A possible solution

Sterner is helping put together a list of service members who have received the nation’s highest medals for Gannett’s Military Times. As of mid-February, the Military Times’ Hall of Valor had a list of more than 98,000 distinguished service members whose awards have been verified with the Department of Defense. That list is incomplete but growing.

Creating a public, easily accessible list of verified medal recipients is a better solution that criminalizing the act, Jassy and Corn-Revere said.

“Congress could create grants to support such efforts, or it could fund similar government efforts to recognize legitimate medal winners and expose the fakes,” the Reporters Committee brief said. “Such measures would support and enhance marketplace efforts by the press and others without distorting First Amendment doctrine.”

Journalists who are writing about a medal recipient can easily check the databases instead of filing a formal request with the Department of Defense, which would probably be ineffective when on deadline.

Corn-Revere said there is also the most natural way to punish those who lie about their military achievements — publicity.

“The solution is right in front of us without the need to empower the government. Those who are known have become the subject of public ridicule, careers have been ruined… that public exposure is a better solution than criminal law,” he said.

Alvarez was publicly denounced as a “disgrace” by this fellow water board commissioners, who read a lengthy list of his lies at a public meeting and urged him to have the “decency to resign his position,” according to news reports.

The Reporters Committee brief cites an Illinois judge and Navy veteran who resigned from the bench rather than face possible criminal charges after he admitted that he never was awarded the Medal of Honor. In 1996, a high-ranking Naval officer committed suicide after Newsweek did an investigation into his two Vietnam War combat decorations that “he had not earned.”

Burkett and Sterner argued that people sometimes lie about their military achievements as part of a scam for financial gain.

In such cases, “false claims of military honors are part of a fraudulent scheme and may be prosecuted without need to alter or expand First Amendment exceptions,” the Reporters Committee brief argued.

Burkett said the Stolen Valor Act just serves as an add-on to fraudulent charges — that it’s rare authorities will investigate someone who is just bragging for attention and not financial gain. And that, he said, is actually a problem with the Stolen Valor Act.

“The reality is they made it a weak law to begin with,” Burkett said. “They made it a misdemeanor. I’ve been told there are senators and congressmen who want to make this a felony.”