Stolen Valor: A Constitutional Right to Lie

Lying about being a lawyer: still illegal.

Last week a Federal Judge in Denver, Colorado ruled that lies are constitutionally protected. It is the first such ruling of its kind, extending to fallacious speech the same protections as say the “I have a Dream” speech. It’s instructive to see how we got here before delving into the decision itself.

Rick Glen Strandlof was a gay battalion commander of Marines who had a metal plate in his head (with no scar, amazingly) from wounds received watching the Battle of Fallujah from California on his Sony widescreen. During the ferocious fighting he saw there, he also had a finger shot off, despite the fact he still has all 10 digits on his hands. (No word on when he will be indicted for killing the father of Inigo Montoya.) Roaming around Colorado (having left Cali, and been tossed from Nevada for defrauding folks hoping to bring auto racing to Reno) Rick went by the last name “Duncan” where he bilked well-meaning folks for money for his left-wing veterans’ organization, and appeared as himself in various campaign commercials for anti-war organizations like VoteVets and candidates for Congress. He also attended Iraq Veterans Against the War poetry readings wherein he somehow survived a fate worse than death as each struggled to find something to rhyme with “illegal and Immoral.”

Of course, everything that Rick Glen “Duncan” Strandlof knew about war he learned from watching TBS on Memorial Day. I half expected him in this clip with Anderson Cooper to tell us about the time his unit went behind enemy lines with a guy named “Oddball” to rob a bank in Nancy.

Most folks turned a blind eye to Duncan/Strandlof’s easily debunked stories because he was saying what they wanted to hear. For instance, read this tale of woe:

“I continuously saw people being sent back into a meat grinder again and again and again,” said Duncan, 30. “I saw people dying and leaving families and distraught loved ones. Seeing the degradation of the military, the degradation of the troops. There’s only so much you can take before you have to begin speaking up.”

How about this canard?

And the soldier who was once branded in madness as a baby killer is now glorified as a saint, an angel in camouflage and their service is being used by the Chicken Hawks In Chief as a guilt inducing distraction. The monuments both of stone and of flesh are sullied by those who have propagated this current war of convenience and who see only profit in its perpetuation. Because it is a turf war, a braggart’s war, a who-has-the-biggest-dick war, the Mother of All Oil Wars war.

Not exactly Kipling’s “Tommy” (“Yes, makin’ mock o’ uniforms that guard you while you sleep/ Is cheaper than them uniforms, an’ they’re starvation cheap”) but it is quite the worthy effort for a man who knows as much about Combat as I do about the TV show “Glee.”

At last Duncan/Strandlof was charged with Stolen Valor violations and the battle was met in the courtroom. Into the Valley of Untruths rode the 400 Lawyers of the ACLU, answering the clarion call to justice that went out on behalf of those everywhere who want to unilaterally promote themselves to Brigadier General and award themselves Medals of Honor, sniper badges and secondary MOS identifiers as Airborne Oboe players.

According to the Rutherford Institute which joined the ACLU in defending Strandlof,

…false claims of military distinction do not in any real sense diminish the honor earned and bestowed on those who have truly earned this nation’s highest military award. Save the situation where there is a false claim that a medal or decoration recipient did not earn his or her award (a situation which would involve the kind of individualized harm the government may prevent or punish), the false, self-aggrandizing statements of others cannot lessen the honor bestowed on those who have achieved their military awards. This is not a zero-sum situation where a claim of battlefield distinction or courage by one (false or otherwise) necessarily diverts respect and honor from others who have actually earned their awards.

I just love this argument. There are currently fewer than 90 recipients of the Medal of Honor alive today. According to the logic of ACLU & Rutherford, if there were 9,000,000 this group would still be equally as venerable as it is now. Sure, they can toss around the MOH like it was Pez, and it won’t detract from any individual recipient. Go to someone’s house and tell them they won to Publishers Clearing House grand prize. Then when they calm down tell them that all 11 million entries this year were winners. Based on the logic above, this second bit of info should not detract at all from their initial excitement. It’s the same thinking that goes into not scoring soccer games in Massachusetts so that everyone can be a winner.

Nonetheless, the judge bought this theory.

Having considered the motion and response and their supplements, as well as the arguments and authorities presented by amicus curiae,2 I find and conclude that the statute under which defendant is charged is unconstitutional as a content-based restriction on First Amendment speech that is not narrowly tailored to serve a compelling government interest. Accordingly, I grant the motion.

By way of background for the discussion of the legal issues in play for the remainder of this piece, according to the “Barbri Bar Review” book that has been my omni-present companion for the last month, “When the Supreme Court addresses individual liberties under the Constitution, the outcome of the analysis will depend on the level of scrutiny used by the Court.” Under the “Rational Basis Test” (the least restrictive to the Government), a law is upheld if it is rationally related to a legitimate Government purpose, and the Challenger (here Strandlof and the ACLU) has the burden to show either that there is no conceivable legitimate purpose, or the law is not rationally related to that purpose. Under the more restrictive “Strict Scrutiny” test, the law will only be upheld if it is necessary to achieve a compelling government purpose.

Judge Blackburn in this ruling first addresses the Government’s contention that “[p]etty lies . . . do not promote the uninhibited marketplace of ideas and therefore are not protected” by the First Amendment.

Stated differently, because defendant was not conveying a political message, speaking on a matter of public concern, or expressing a viewpoint or opinion, so the argument goes, his speech does not merit constitutional protection. The only other court that appears to have addressed the constitutionality of the Stolen Valor Act relied on a similar rationale in rejecting a defendant’s First Amendment challenge to the statute.

I am not so sanguine.

The judge then goes into a somewhat tortured explanation of how much like animal snuff films, our society needs these blatant lies to exist. It is best you read it yourself to follow the argument. But Judge Blackburn sagely ends the doggie snuff-film discussion with a recognition that

there are a limited universe of “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” One of those categories is fraud. Although the government did not advance this precise argument that the Stolen Valor Act is a legitimate restriction on fraudulent speech, in the interest of intellectual honesty, I consider it here.

He then discusses the issue of fraud in relation to the Stolen Valor Act. But fear not, because this fraud is “merely fraud in the air, untethered from any underlying crime at all.” In other words, lying about receiving the Medal of Honor is the Nena’s 99 Red Balloons of fraud, floating peacefully over the country.

Next, Judge Blackburn uses his amazing legal dexterity to dispense swiftly with the “Rational Basis Test” and move immediately to the “Strict Scrutiny Test.” For those who don’t understand the importance here, the Government rarely loses under the former, and rarely survives the latter. And in deciding that the latter test was appropriate, Blackburn immediately moved into analogizing this case to flag burning.

Now, just what the “conflagration school of dialogue” has to do with Strandlof may have some folks pulling their hair, it certainly did me. After quoting a lengthy excerpt from Texas v. Johnson (the seminal case in the victory of Arson as speech over the Socratic method) Blackburn concludes:

I am hard pressed to find that the government’s interest in preserving the symbolic meaning of military awards is sufficiently compelling to withstand First Amendment scrutiny.

And finally, the honor, dignity and reputation of our fighting men and women somehow demands this conclusion:

I acknowledge that there is much irony, to put it gently, in concluding that the core values of our system of governance, which our military men and women serve to defend with their very lives, are here invoked to protect false claims of entitlement to the honors that recognize the most courageous instances of that service. Nevertheless, I have profound faith – a faith that appears to be questioned by the government here – that the reputation, honor, and dignity military decorations embody are not so tenuous or ephemeral as to be erased by the mere utterance of a false claim of entitlement. The social approbation that attends those who would attempt to bask in the reflected glory of honors they have not earned demonstrates that the people of this nation continue to revere our brave military men and women regardless of – or perhaps even more so because of – false and vainglorious attempts to appropriate such accolades.

This passage is, of course, pure hokum, masquerading as praise for the heroes of today and yesteryear. Let’s look at the Strandlof case in particular, since he is the one on trial. Reading this one would assume that Strandlof showed up, told his story of the battle of Fallujah, and one brave veteran in the crowd stood up and yelled “He’s a phony, a big fat phony!” and then Strandlof slunk away with his prehensile tail firmly tucked into his 4th point of contact. This is not what happened. Strandlof was big man on campus for the anti-war machine all across Colorado. He was feted at dinners, the key note speaker at functions, and the center piece of campaign commercials. Rather than “social approbation” this guy lavished in all the attention he wanted for several years. The only thing keeping him from doing so now was military bloggers and some honest brokers in his own veterans’ organization.

Put another way, Blackburn is saying that the faking receipt of military awards is really no big deal. While he might say they are inured to damage by their sheer magnificence, if no one is ensuring the integrity of those awards and those claiming them, what possible significance can the government place on them? Or is it Blackburn’s contention that the proper venue for such vetting is the milbloggers and media that track these phonies? If such is the case, he ought to take a look around the blogosphere on some quiet Saturday morning.

It reminds me of the scene in Die Hard when the terrorists kill the FBI guys in the helicopter and the police chief turns to those standing around him and says “We’re gonna need some more FBI guys I guess.” Well, if you are going to lay the onus of outing all of these phonies to milbloggers, we’re going to need some more milbloggers, because the phonies have us outnumbered about 100 to 1.

I have news for you Judge Blackburn, every time one of these phonies lies about being a recipient of the Combat Infantryman’s Badge, it makes mine shine that much less. It may not be the Medal of Honor, but I cherish that little piece of blue a lot more than you will ever cherish your bar certificate. And while Strandlof is free to lie to you about having my award, you’d still toss him in jail if he lied to me about having your piece of paper. Think of that when you ponder just how important it is for the government to keep folks from lying about being lawyers.