Free speech defense used in Stolen Valor case

The attorney for an Air Force veteran charged with illegally wearing a Purple Heart medal invoked a First Amendment defense Monday in the first known prosecution in Nevada under the Stolen Valor Act.

Assistant Federal Public Defender Rene Valladares argued that some charges against David M. Perelman should be dismissed because prosecutors cite a part of the act that restricts free speech.

"We are not taking on the constitutionality of the Stolen Valor Act" of 2005, Valladares said Monday during the first of two hearings in the case in U.S. District Court.

Perelman, 56, of Las Vegas is accused of wearing a Purple Heart in 2008 during a national convention of recipients of the medal in Las Vegas. He claimed he was wounded in combat in Vietnam when in fact he was wounded by a self-inflicted gunshot in 1991, according to the indictment.

The two-count indictment also accuses him of stealing about $180,000 in monthly disability benefits from the Department of Veterans Affairs from July 1995 until July 2009. Perelman is a former VA employee.

"Because of the Purple Heart, the VA presumed that his thigh injury was service related and awarded him benefits," according to the court papers filed by U.S. Attorney Daniel Bogden and Assistant U.S. Attorney Roger Yang. They opposed the motion to dismiss the Stolen Valor count.

They didn't charge Perelman with the part of the Stolen Valor Act that deals with making false claims about receiving valor medals even though their case seems to hinge on fraudulent special orders that were put in his file in 1993 awarding him a Purple Heart for wounds received in Vietnam in 1971.

"We bring charges which we believe are the most readily provable against a defendant," Bogden said in an e-mail Monday. The theft charge for stealing VA disability benefits carries up to 10 years in prison, he said, and a conviction on the misdemeanor of "unauthorized wearing of a military medal" could carry a fine and an additional year in prison.

The American Civil Liberties Union of Nevada weighed in as a friend of the court saying the part of the act that Perelman is charged under is overly broad and raises free speech questions.

"You can't pass a law that demands respect for symbols," ACLU attorney Allen Lichtenstein said. "No such law would pass constitutional muster."

U.S. Magistrate Judge Lawrence Leavitt said the purpose of the Stolen Valor Act "is to promote, preserve and protect the dignity of the medal." What's not allowed, he said, "is to pass oneself off as a decorated veteran worthy of a Purple Heart. ... You can't wear it unless you earned it. Period."

In the court papers, Bogden and Yang state Perelman arrived in Vietnam in August 1971 as an air cargo specialist and sought treatment a month later "claiming that he was having LSD flashbacks that could only be relieved by eating food."

Doctors diagnosed a personality disorder and restricted him from hazardous duty. In October 1971, after only seven months in the Air Force and less than three months in Vietnam, Perelman was given an administrative discharge.

"On May 3, 1991, Perelman began a campaign claiming that he was awarded the Air Force Cross and Purple Heart for his heroic actions on July 12, 1971, while in Vietnam," the prosecution's filing said. He claimed he was wounded by shrapnel and received second-degree burns but later admitted he shot himself in 1991.

Somehow, a special order for award of a Purple Heart medal to Perelman dated Sept. 1, 1993, "made its way into Perelman's record at the National Personnel Records Center," according to the prosecution's filing.

There are arguments in other jurisdictions that challenge the constitutionality of the Stolen Valor Act. Both Lichtenstein and Valladares argued that the wording in the act prohibits actors from wearing medals in theatrical productions and prevents anti-war protesters from wearing the medal, which makes their argument a battle over protected speech.

Yang disagreed, saying a reasonable person would not think an actor wearing a medal in a war movie was an actual recipient. As for war protesters wearing the medal to make a point, Yang said, "You can do whatever you want with the medal as long as you've earned it."

Lichtenstein also likened the wearing of such medals to cross burning. "It can be illegal if it's done for purposes of intimidation," he said. "But you can't ban cross burning at a Klan rally out in the woods where nobody is intimidated. It's offensive, but it isn't illegal."

Contact reporter Keith Rogers at krogers@reviewjournal.com or 702-383-0308. Contact reporter Doug McMurdo at dmcmurdo@reviewjournal.com or 702-380-8135.