Court upholds military impostor law

DENVER -- The 10th U.S. Circuit Court of Appeals ruled Friday that a federal law making it illegal to lie about being a war hero is constitutional and that making false statements is not always protected free speech.

The ruling by a three-judge panel of the Denver-based court reverses a district judge's decision that the Stolen Valor Act violates the First Amendment.

Courts in California, Georgia and Missouri have considered similar cases, and the 9th U.S. Circuit Court of Appeals in San Francisco struck down part of the law on the basis of free speech in the case of Xavier Alvarez. The U.S. Supreme Court said in October it would take up the issue of whether the Stolen Valor Act is constitutional.

The federal appeals court in San Francisco last year upheld a different portion of the law when it rejected arguments by David M. Perelman, an imprisoned Air Force veteran and former Veterans Affairs employee from Las Vegas. He was sentenced to a year in prison after pleading guilty to theft of government funds and unlawful wearing of a Purple Heart medal that he fraudulently obtained to receive more than $180,000 in VA disability benefits.

Before pleading guilty, Perelman had argued that he was charged under a portion of the Stolen Valor Act that violates the First Amendment by restricting free speech. U.S. District Judge Kent Dawson rejected that argument, and the appeals court affirmed his decision.

The Colorado case involves Rick Strandlof, who was arrested after claiming he was wounded in Iraq as a Marine and had received military medals. His lawyers have acknowledged the claims were false.

"As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech," Judges Timothy M. Tymkovich and Bobby R. Baldock said in the ruling. "Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment."

Judge Jerome A. Holmes dissented, saying, "I am troubled by the majority's conclusion that false statements of fact -- even those that are knowingly made, with an intent to deceive -- are categorically outside the protective walls of the First Amendment."

Congress passed the Stolen Valor Act in 2006 with overwhelming support. It has been used only a few dozen times. The case against Perelman was the first known prosecution in Nevada under the Stolen Valor Act.

In arguments before the 10th Circuit last year, Justice Department lawyer Joe Palmer said the law is constitutional because the government has a compelling need to punish impostors to protect the integrity of military medals.

Strandlof's attorney, John T. Carlson, argued that the fact a statement might be offensive doesn't mean it isn't protected by the First Amendment.

Strandlof founded a veterans group in Colorado Springs and said he had received the Purple Heart and Silver Star. His claims were questioned, and the military said it had no record that he ever served.

He was charged in 2009 with violating the law, but a federal judge dismissed the case, saying the U.S. government had not shown any compelling reason to restrict that particular type of speech.

Carlson said Friday that he had expected the 10th Circuit to hold off on its decision until the U.S. Supreme Court weighed in. He said he planned to either appeal to the full 10th Circuit or petition the U.S. Supreme Court, but he noted that the case already in front of the high court will decide matters.

"We're going to have, in a couple of months, the definitive decision," Carlson said.

The California case that the Supreme Court decided to review centers on the government's prosecution of Alvarez of Pomona, Calif.

Alvarez, a member of the local water district board, said at a public meeting in 2007 that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration. He had never served in the military.

Review-Journal writer Carri Geer Thevenot contributed to this report.