Friday, July 16, 2010

Stolen Valor act ruled unconstitutional

Folks, get your gear.

First, we all need to raise all holy h311. Second, we need to make sure this goes to the Supreme Court. I have emails out the the Salamander JAG corps ... so expect updates to this post as their briefs come in.
A federal judge in Denver has ruled the Stolen Valor Act is "facially unconstitutional" because it violates free speech and dismissed the criminal case against Rick Strandlof, a man who lied about being an Iraq war veteran.

U.S. District Judge Robert Blackburn issued his decision this morning.

"The Stolen Valor Act is declared to be facially unconstitutional as a content-based restriction on speech that does not serve a compelling government interest, and consequently that the Act is invalid as violative of the First Amendment," Blackburn wrote in his opinion.
Where do we start? Dressing up in a uniform you did not earn and wearing medals you did not earn is not speech. It is theft.

This judge is a
Bush 43 so there isn't a "Democrat judges" angle on this. Also, the legal team for these a55hats comes from The Rutherford Institute.

They won with logic like this,

John Whitehead, president of the Rutherford Institute, said the law is poorly written and should not be used to prosecute people for simply telling lies.

"You have to redraft the law to prove a particularized damage," he said. "If you run around Denver and yell out, 'I got the Medal of Honor,' you are guilty of the statute the way it is written."

In a recent motion to dismiss the case, Strandlof's attorney, Robert Pepin, wrote that "protecting the reputation of military decorations is insufficient to survive this exacting scrutiny."

Rutherford Institute attorney Douglas McKusick argues that Strandlof's lies did not "inflict harm" upon the medals he lied about or debase the meaning of the medals for the veterans who actually earned them.

"Such expression remains within the presumptive protection afforded pure speech by the First Amendment," McKusick wrote. "As such, the Stolen Valor Act is an unconstitutional restraint on the freedom of speech."
Once again - if you need to understand the damage these fakes cause to veterans - read Stolen Valor : How the Vietnam Generation Was Robbed of Its Heroes and Its History.

More to follow, but I have a request.

- Anyone have a link to the whole opinion by the Judge that came out today?
UPDATE: Got the decision. I put it on googledocs - you can download it here.
UPDATE II - Electric Boogaloo: EagleOne has a post up well worth your time. Also check out Mr. Wolf at B5 and DrewM at Ace.

47 comments:

Acad Ronin said...

I am not a lawyer, but could one not prosecute most (almost all?) of the wearers for fraud? Exposing and shaming is a start, but local DAs charging fraud would reduce the liars' expected benefit from their masquerades.  Unfortunately, I suspect too few DAs have a military background for them to take stolen valour as a personal affront and so worth prosecuting even when the actual monetary harm is minor.

XBradTC said...

Well, fraud usually implies a tangible fiscal gain. But the fact of the matter is, most of these guys who claim honors that they haven't earned have gained something from the community, even if not directly financial. That's why their actions should be criminal. The SVA act was passed because existing fraud law was insufficient to address the problem. 

<span>"You have to redraft the law to prove a particularized damage," he said. "If you run around Denver and yell out, 'I got the Medal of Honor,' you are guilty of the statute the way it is written."</span>

That's the whole point, you half-wit...

AW1 Tim said...

All I know is that this judge just bought hisself one hell of an order of Karma. He's not gonna like it at all when that bill comes due.  8-)

MR T's Haircut said...

Pain!!!

Anonymous said...

<span>

Does this mean I can go around claiming that I am a Federal Judge?
</span>

LT Rusty said...

I'm not a lawyer ... yet.  I'm just a lowly law student who used to be in the Navy.  Gimme a couple years and I will be a lawyer.  

I hate to say this ... but what the judge's opinion holds together, and will probably be upheld on appeal.  

BUT, and this is a REALLY IMPORTANT BUT ... the judge gave the government a REALLY easy way out.  Amend the law so that it requires intent, rather than just action.  The way the law is written, hell, you could prosecute Tom Hanks for wearing the Medal in Forrest Gump.  

"To survive constitutional scrutiny, a common law cause of action for fraud requires proof of harm or detrimental reliance.  See, e.g., Illinois ex rel. Madigan v. Telemarking Associates, Inc., 538 U.S. 600, 620-21, 123 S.Ct. 1829, 1840-41, 155 L.Ed.2d 793 (2003) (noting that “[e]xacting proof requirements” of state law fraud claim, including requirements that “the defendant made the representation with the intent to mislead the listener, and succeeded in doing so,” rendered law constitutional as “provid[ing] sufficient breathing room for protected
speech”."

This shouldn't be a huge problem.  Just revise the statute a little bit.  As it stands, like the judge says, it's a 'content-based' restriction on free speech.  Make the restriction intent-based instead, albeit relative to a specific type of content, and you should be home free.
"

USAF Mike said...

Before you go calling the Rutherford Institue asshats, might want to look at some other stuff they're involved in:

http://www.rutherford.org/articles_db/press_release.asp?article_id=740

http://www.rutherford.org/articles_db/press_release.asp?article_id=712

They are most definitely not some far left wing activist group or something; they have a single minded purpose of protecting Constitutional rights, regardless of if their position is from the "right" or the "left." 

LT Rusty is spot on with his observation that, as written, this was a shitty law (from a legal standpoint.)  Like he said, all the government has to do is revise it to be intent based and it'll stand judicial scrutiny.

Remember, just because a law might lead to a good end state, if it does so through shitty legal reasoning (especially on Constitutional matters) and is allowed to stand when challenged, it is a net bad thing because that shitty reasoning can be cited as precedent in other cases where the result might not be such a good end state.

The Constitution is neutral; it isn't right or left or pro-troops or anti-military, it just is.

LT Rusty said...

Thanks, Mike.  You pretty much nailed my train of thought in your last two paragraphs ... I just wish I'd waited for a few more passengers before the train rolled before.  :P

I've actually posted a link to this doc in my school's class forums.  Curious to see what the class makes of this ...

Grandpa Bluewater said...

I wonder what the late Justice Holmes might have to say.

Andrewdb said...

I will give Mr. Justice Holmes great credit for his combat service in the War of the Rebellion (he was wounded at Ball's Bluff, Antietam and Fredericksberg), however I have never been comfortable with his legal realism, support for the regulatory state, nor his opinion allowing forced steralization (he is the one who wrote "three generations of imbeciles is enough").

Andrewdb said...

And I always liked the story of how he and and Mr. Justice Brandeis were out walking one day when a very attrractive lady passed them.  Holmes, who retired at 90, was reported to have said "oh, to be 70 again!"

LT Rusty said...

Well, isn't it?

Enough, I mean?


(wait, was that my outside voice?  O:-) )

Grandpa Bluewater said...

Andrewdb:

There sufficient highly placed imbeciles in the Executive, Legislative, and Judicial branches of the government, not to mention all of the armed services, to demonstrate that Mr Justice Holmes did not carry the day for very long on that issue,  Plenty in both political parties, too.

LT Rusty said...

(Also, as an aside, it should be noted that in fact nobody in that family was provably an imbecile, in any of the three referenced generations.  The school records of at least two of the three are still extant, and show that they were of - at least - average intelligence.)

Vigilis said...

CDR Sal,

You know lawyers ("<span>Salamander JAG corps"</span>) - you are even married to one. 
All will "do what they can" or give you ineffectual advice. If you finally come to 
the inevitable conclusion that the legal profession really does now have a lock on
governance, be good enough to apprise the rest of your readers.

Vigilis - the solitary, undaunted voice against lawyers a preponderance (over 2%) in elected offices and Supreme Court Associate tenures (lawyers not mandated by U.S. Constitution - thanks to the lawyers most do not even know such).

dc said...

I've been telling people of my "Legion of Achievement" medal, so I guess I'm safe now.

TBR said...

Hey, here in Germany pretending to be a soldier/policeman etc. is penalised in the Federal Penal Code (§132a StGB) with up to a year of jailtime or penal payments. That includes unlawful usage of foreign titles, ranks, medals, academic grades § such, even the wear of a uniform or of medals you don't have a right to.  So if your pretenders wore an US uniform and medals they don't have a right to they could be penalised for it.

Robbo said...

This doesn't surprise me. I was sort of expecting it.  But that doesn't mean I like the people the law was directed against.

The thing is, any one of us can walk into a bar and say we are a SEAL/Green Beret/MoH receipient/Supreme Court Justice/starting baseman for the East Nowhere Slackadasicals, and start drinking on the house. It's been done before, and it will happen again.

I think there is a clear line when impersonating an officer since they 'serve at the pleasure of the President', especially O-4 and above who require the 'advice and consent of the Senate' -- that's just the law. Beyond that, though, I'm not sure how you write a law that doesn't put away someone just for dressing up for Halloween.

Vigilis said...

Defandant posed as "Rick Duncan," a wounded Marine captain (IMPERSONATING AN OFFICER?).

xformed said...

I had that thought earlier when I saw this news break.  In"The Real World" there are all sorts of things in play to keep people from misrepresenting who they are, because of the fraud, and the lesser included offense of misleading.  Heard a radio ad recently and this cuaght my ear: "The announcer is not a lawyer."  So....some legal proceeding prompted that to be put into advertizing.  In this case, he used his lie to raise funds.  Try raising funds for a charity and mis-representing your background to appeal for more help.

Wow...and they toss pretend lawyers, doctors, dentists and stock brokers in jail...but not if you pretend to wear a uniform.

xformed said...

With the drive to adopt foreign law standards, maybe this would be instructive to the left sided justices at SCOTUS.  OTOH, they'd all off a sudden run to embrace Thhe Bill of Rights, because...yeah...what even helps them make their case on any given day in the life of managing a "living" document.

Anonymous said...

I could be wrong, but I think the law that prohibits impersonating an officer requires the impersonator to attempt to exercise the authority of the office he or she is pretending to hold.  Just telling someone "I'm an officer in the Marine Corps" wouldn't be enough by itself.

Southern Air Pirate said...

Hold on folks. Before we start to pass the torches, pitch forks, and etc. Take a moment and head on over to Ace's website and read his op-ed on this. I for one agree with him there. Basically the idea behind the law is good, but when we start to trample on our constitutional rights to achieve these goals, the we are have lost more freedoms. I feel the same way about the campaign finance reform laws and just about anything else that restricts the freedom of speech in general. That is one of the primary things that I love about this country is how anybody can stand on a soap box on the street corner and just ramble on about whatever they want. They don't need to worry about the government coming in breaking them up and throwing them in to the box.
That being said we should take a further look at the law and see if it could be better written to strike at those we feel are stealing from the true veterns vs starting the restriction of speech.

Largebill said...

To me this is in line with the BS about flag burning.  I don't think either should ever be done.  I've come to accept that the government will not provide the proper remedy for either based on rulings from morons wearing black robes.  I can grudgingly accept the slippery slope argument for not wanting the government to decide what "speech" is acceptable or not.  Maybe both of these are instances where private citizens should take action rather than the government.  If someone is using free speech to burn a flag we can express ourselves by beating him to a pulp.  If someome is expressing themselves by falslely claiming to be a Medal of Honor recipient (Like a mayor in Illinois recently) he also meets our free speech repeatedly and violently.

AW1 Tim said...

Nope. Tar and feather the judge as a warning to other idiots who think they should use their positions to make law. This is an absolutely crapweasel argument, and there are simply not enough words in the English language for me to describe how I feel about this waste of genetic material.

The judge works for the people, and when he wrote this decision he crossed a line that common decency and common sense says should never even be approached.

 He needs to be removed from the bench, given a goat of warm tar and feathers, and ridden on a rail to the edge of his district and told to never be seen within it's boundaries again.

 Then again, he's caught me in a happy mood today. he ought to be glad I'm not on a tear.

AW1 Tim said...

Saying he's an officer when he's never served ought to be grounds for having the living sh!t kicked out of him. I don't have a chestful of ribbons. I didn't do as much as a lot of folks, but I raised my hand and took the oath and was willing to risk my life in the defense of our constitution and these United States.

 Some assmaggot putting on airs to talk up a girl cheapens what I have, and that of everyone who took that oath and served honorably.

  This attitude that it's "just talk" is bull shit.

  I haven't got much, but i earned everything I have, and I'll be damned if some crapweael is going to lay claim to be a part of what i worked for and h=get away unscathed.

AW1 Tim said...

No. Tar and feather the judge, and ride him on a rail outside his district with the admonishment to NEVER be seen within it's borders again.

  He crossed the line with his decision, and showed his disdain for our military and his support of lying crapweasels and their just as worthless lawyers.

  He is, to my mind, just another worthless parasite on society, and if he takes any firther paychecks, he ought to be labeled and prosecited as a frauf and thief.

  That's my 2-cent's.

Robbo said...

Thanks for the detail -- good point below

Robbo said...

Good point. Does it really HURT anyone?

LT Rusty said...

No, Tim, he didn't cross the line.

That law is a good idea.  It should be illegal to make those sorts of claims.  BUT we can make it illegal in a way that doesn't screw around with the Constitution.

You signed on the dotted line to defend the Constitution against all enemies foreign and domestic.  So did I.  That law, while well-intentioned, was contrary to the Constitution.  It will, hopefully, be re-written in such a way that it is not contrary.  I really, really hope it is re-written in such a fashion.  It can be, and it should be.

Robbo said...

There's a good idea: just beat up people we don't agree with! Rock on, KKK!

I say: if you want to burn a flag, then burn a flag, I don't care. I swore to defend the Constitution (not the flag).
There are always 25 million(~) Chinese people sewing up brand new ones to replace the one that jackass just burned, so who cares?

LT Rusty said...

Then you'd better fire up the court system to go after Tom Hanks - he wore the Medal in Forrest Gump.  And George C. Scott had a lot of medals on him in Patton.  

They'd be guilty.

Southern Air Pirate said...

Tim,

I am all for tar, feathering, and left hanging upside down by thier gonads those who execute stolen valor incidents. Ditto for those crapweasels who claim to be Secret Squirrel operators, POWs, veterns, etc. I just don't feel comfortable when the government starts to say what I can and can't say.

I am re-reading the PDF of the ruling and from my untrained mind it appears that the judge is basically saying that the rules are all over the place with regards to the freedom of speech portion of the 1st Amendment. Second of all the judge rules that the law itself seems to be poorly written and outlaws lying. Which the judge says is not an illegal act upon its self. Lying only becomes a criminal incident when that lying leads to other criminal acts, such as fraud, theft, etc. The judge also references various flag burning laws that came into vouge for a while, where ultimately SCOTUS ruled that those laws were unconstitutional based on the fact that it is ultimately a symbol in the same vein as a copy of the various federal/state/local departmental seals, copies of various important documents (decleration of independance, us constitution, etc), state flags. How would we, via the government, rule that that those symbols are more important then others?
The judge also seems to say that the medals are not an overwhelming reason that most people join the military and the first thought out of thier heads while in combat or a emergancy condition is the award they are going to get. So in reality, they are not that big of a symbol as those on the outside percive.

Taking a bigger look at this all, though I really think the larger issue of stolen valor is a failing on our national intrests part. We use to celebrate the likes of guys such as the 442 INF, Audie Murphy, Butch O'Hare, etc. Now a days Hollywood, MSM, even some of the tell all books (like R. Marchinko IMHO) seem to paint some guys heroes cause they earn some warfare pin. The true heroes aren't celebrated like they use to be. The larger number of those servicemembers who are awarded anything more important then a DFC, Navy Comm, Air Medal; just aren't out there. I don't know where to start looking but really how many MoH's to living recipents are out there, How many current Navy/AF  Crosses recipents are out there, how many know that the Bronze Star is given primarly in the US Army to those just for showing up to a combat zone and drawing fire? Maybe Congress needs to ask the SecDef and the Service Sec's to look at the awards manuals to look for revisions and corrections on how we issue awards. Maybe we should look at how some of our allies only give away awards that really mean something instead of for "just showing up to work" type that we nearly always see about once a quarter for those folks getting ready to transfer.

Curtis said...

Sorry, this is the route I go.  I think I have a free right to taze, toss eggs at, hit with rocks, bats or hammers all fakers.  That's free speech.  The law is an ass.  These guys deserve the smack of the backhand in public.

Waging lawfare is for a word I won't spell out but it most definitely not start with an n.  I'm just a tad conscious of the limits of free speech on a place where I freely agreed to abide by the rules.

If I was some sort of lame ass I could describe myself as an Iraqi War veteran.  I won't be alive to do it since I reserve that sort of veteran language for the guys that actually fought in Iraq.  Was I an active duty warfighting son of a gun during the Iraq War-sure.  Still, not a title I feel entitled to and would never use to describe myself.  As I see it, from old, one wasn't a Vietnam War Vet unless one fought there, over there, near there, supported there with direct into Vietnam/close by areas and the veterans who waged that war from the states.....not Vietnam Vets.  ditto with Iraq and AF.  One had to be there.

Curtis said...

Well,

About lying.  When you recall that the only one that went to jail for the Valery Plame thing was a COS who tried to answer the prosecuters questions and mistook his memory and so committed perjury while the real lying weasel that outed Plame went jail free and was never ever prosecuted.....

We got us a whole new definition of honest.

Curtis said...

I think that is a violation of the UCMJ.  No civilians used to be covered by the rules laid down by the UCMJ. I believe that somebody passed a recent law stating that all military contractors in the TO were now subject to the UCMJ-which still will not cover any such misbehavior when they get back to CONUS and try to pass themselves off as 'occifers.'

Curtis said...

Oh, I don't think the behavior harmless and I'm all for punishing it.  But one can do that without the law and perhaps that's the best way.
Example.  "your asking me that fool over there lying bashed on the floor is lying bashed on the floor?"

"yes"

"bolt of lightning, officer, right out of the clear blue sky.  don't know what possessed it to deal so savagely with that guy."

rinse and repeat.  there's a lot more of us than there are of them.

Anonymous said...

...because no-one on the other side of the arguement from you can be anything other than a Klansman.

You just lost the arguement.

DG said...

Folks need to relax for a sec and read what Rusty wrote. The law can be fixed in a way to ensure the constitutional liberties we all SWORE to uphold, yet still be used to go after asshats. That seems like a win.

The Constitution is more important to me than any medal or ribbon. Of course, I still might punch a dude in the neck if I saw him wearing a MoH he didn't earn.

Wireless.Phil said...

You do have a point on this one.
So do all the 'fake' cops who were arrested this year, there have been a few, walk?

Curtis said...

Ya know,
I can walk into any place, bar or not, and declare that I am entitled to wear the trident.  I never do and it is just a very small trident but it's a trident.

It's not the Budweiser.  No birds attached.  Tiny little thing.

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