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Fighting for the Right to Lie About Military Service

By DAN FROSCH

Published: May 20, 2011

DENVER — In 2009, a burly Colorado man named Rick Duncan was a rising star among local veterans groups, advocating on behalf of struggling soldiers and holding forth about his own powerful experiences returning from Iraq as a wounded Marine.

The problem was, none of it was true, not even his name.

Mr. Duncan was actually Richard G. Strandlof, a troubled drifter who had never served in the military. Instead, he used his bogus story to work his way into the company of prominent politicians and admiring veterans.

Mr. Strandlof was eventually arrested by the F.B.I. and charged with violating the Stolen Valor Act, a 2006 law that makes it a federal crime to lie about being a military hero.

But though he admitted conjuring the entire tale, Mr. Strandlof has been fighting the case against him, arguing that the law violates his right to free speech. Simply telling a lie, his lawyers assert, does not always constitute a crime.

Now, a federal appeals court in Denver is weighing whether the act is indeed unconstitutional. Last July, a judge dismissed the case against Mr. Strandlof on First Amendment grounds, but prosecutors appealed.

Mr. Strandlof’s case is the latest legal challenge to the Stolen Valor Act. The appellate court’s ruling in Colorado — expected in the coming months — is being eagerly awaited by legal experts and veterans groups, as it will most likely determine whether the United States Supreme Court takes up the matter.

“Stolen Valor is not just lying: it is stealing an identity of a combat hero or a wounded soldier,” said Doug Sterner, a Vietnam veteran who has spent years tracking down those who falsely claim to be war heroes and who helped draft the law’s language. “Why should the Army give out a Silver Star to someone who performs heroically if anybody who wants one can buy a medal, print a citation and claim it with impunity?”

Since Congress passed the Stolen Valor Act, the Justice Department has prosecuted more than 60 people for violating the current law — penalties can range from up to a year in prison to fines and community service. Mr. Sterner says thousands more cases are reported each year.

But the recent challenges have left the law’s future uncertain.

Last year, the United States Court of Appeals for the Ninth Circuit ruled the law unconstitutional in the case of Xavier Alvarez, a former board member for a municipal water district near Los Angeles. Mr. Alvarez had bragged about being wounded in combat and claimed he had received the Medal of Honor. In truth, he never served in the military.

In 2008, Mr. Alvarez pleaded guilty on the condition that he could appeal. He was sentenced to three years of probation, ordered to perform 416 hours of community service and fined $5,000. But the Appeals Court reversed his conviction, ruling in a 2-to-1 decision that the false statements covered under the act were overly broad.

In the majority opinion, Judge Milan D. Smith Jr. wrote that if the court upheld the act, “then there would be no constitutional bar to criminalizing lying about one’s height, weight, age or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke.”

But a federal judge in Virginia upheld the law in January of this year in the case of Ronnie L. Robbins, a former revenue commissioner of Dickenson County who had claimed while campaigning that he was a decorated Vietnam veteran. Mr. Robbins, in fact, was never deployed overseas while in the Army.

In his ruling, Judge James P. Jones said that lying about being a decorated soldier did not warrant First Amendment protection, and that privacy laws would be sufficient to keep the government from intruding into everyday exaggerations. In March, a jury found Mr. Robbins guilty, and he is scheduled for sentencing in July.

With such divergent rulings, eyes are turned towards the case of Mr. Strandlof, whose tales of battle were so convincing that he was able to found his own veterans group.

Oral arguments before the federal appeals court here were heard last week. Mr. Strandlof’s federal public defender, John T. Carlson, has said that false statements covered by the law could not be grouped with other free speech exceptions like defamation, fraud and perjury. If Stolen Valor is upheld, he argued, the government could find itself regulating any false statements, whether harmful or not.

“For good or bad, we live in a world that tolerates considerable amounts of false speech,” Mr. Carlson wrote in an e-mail response to questions about the case, “from the exaggerations, omissions and little white lies that we all tell sometimes to the big, ideologically inflected lies that dot our culture.”

Conversely, federal prosecutors in the case contend that lying about being a war hero is inherently harmful — both to the military awards system and to the soldiers who truly earned their honors. Indeed, proponents of the act maintain that the yarns spun by war fabulists almost always lead to monetary gain or acclaim.

This month, Representative Joe Heck, Republican of Nevada, introduced a revised Stolen Valor Act that would make it a crime of fraud to benefit, or intend to benefit, from lying about military awards.

“It’s not O.K. to misrepresent yourself as a physician and practice medicine,” Mr. Heck said. “It’s not O.K. to misrepresent yourself as a police officer. Why should you be able to misrepresent yourself as member of the military, specifically if you’re trying to gain something of value?”