Can Someone Falsely Claim to Have Earned a War Medal? The Answer Is Not Clear-Cut

by Mike Mintz on September 19, 2012 · 0 comments

in Constitutional Law,martindale.com

According to the Supreme Court, you can falsely state that you were awarded military medals because that is protected free speech under the First Amendment.  However, according to the Ninth Circuit Court of Appeals, falsely and fraudulently wearing such medals on your chest constitutes a crime.

A couple of months ago, the Supreme Court declared that lying about being a war hero was protected free speech.  In coming to this conclusion, the Court declared that the Stolen Valor Act 18 USC 704, which makes it a crime to falsely claim to be a war hero, infringed on a person’s First Amendment right to free speech. See U.S. v. Alvarez 617 F.3d 1198, aff’d, 567 US ____ (U.S. Sup. Ct. 2012).

The Court noted in Alvarez that historically, only certain categories of speech were permissibly restricted, including incitement, defamation, speech that is integral to criminal conduct, child pornography, fraud, etc.  There is no general exception for false statements.  Hence, the provision of the Stolen Valor Act making it a crime to falsely state that one received a military medal was unconstitutional and in violation of a person’s free speech right to say what he wants.  The Court did not find persuasive the Government’s argument that the Act was designed to protect the integrity of military medals.

While noting that the Stolen Valor Act the way it was currently written provides too sweeping a restriction on free speech, the Court did not rule out the possibility that a more finely-tailored statute would pass Constitutional scrutiny.  The story does not end there, however.

The Ninth Circuit was also recently asked to determine if wearing a war medal was actionable under the Stolen Valor Act in the case USA v. Perelman, Action No. 10-10571 (9th Cir. 8/28/12). The court answered that fraudulently wearing a military medal was indeed actionable under the Stolen Valor Act and that such actions were not Constitutionally protected.  The story arose out of a Vietnam War veteran, David Perelman, who served in the Vietnam War for all of three months.  He did not receive even a single scratch during his tour of duty.  Twenty years later he accidentally shot himself in the thigh. He later falsely claimed to the Veterans Administration that he received the gunshot wound during his service in Vietnam.  The U.S. Air Force subsequently awarded him a Purple Heart, and he received close to $200,000 in disability benefits for receiving the medal.  Mr. Perelman later wore the medal to a national convention.

After being found out, Perelman pled guilty to getting disability benefits under false pretenses and to the unauthorized wearing of military medals, in violation of the Stolen Valor Act.  On appeal, he claimed that the portion of the Act illegalizing the false wearing of medals was unconstitutional and violated his First Amendment right to free speech.

The Ninth Circuit disagreed with him.  The court noted that although the Supreme Court struck down the portion of the Stolen Valor Act which criminalized pure speech, i.e. lying about receiving medals (in Alvarez), “the use of a physical object goes beyond mere speech and suggests that the wearer has proof of the lie, or government endorsement of it.” (emphasis added)

The court did not countenance defendant’s argument that the Act could be construed to criminalize actors wearing military medals in movies or spouses wearing a family member’s medals to military funerals.  The court distinguished these situations, opining that the Act only criminalized the act of wearing the medal when it was meant to deceive someone.

Perelman was sentenced to ten months imprisonment and one year supervised release for violating the Stolen Valor Act.

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