Semper Fraud: Two False Heroes Challenge The Constitutionality of The Stolen Valor Act

Previously, I have questioned the constitutionality of the Stolen Valor Act, which criminalized false claims of military medals and decorations. Now, two cases in Colorado could become a test for viability of the act — an appropriate forum given it is the home state of Rep. John Tony Salazar who was the chief sponsor of the 2005 law. The cases involve two men, Xavier Alvarez and Rick Glen Strandlof (shown left) who are challenging the law as a violation of their first amendment rights. Both claimed to be decorated Marines. Dan Elliott has an interesting article on these cases in The Los Angeles Times.

Notably neither man has been accused by prosecutors of seeking financial gain for himself. That is critical because we have fraud and conspiracy laws that have been used against people making false claims for personal gain. Since these laws already punish those who use false claims to secure donations or speaking fees or other benefits, the Stolen Valor Act is most applicable to case of simple false bravado and bragging.

In the case of Xavier Alvarez of Pomona, Calif (the case was moved to Oregon), the accused was elected a water district board member in 2007 and claimed at a meeting that he was a retired Marine and recipient of the Medal of Honor. A pretty stupid claim given the small number of MoH recipients and easy confirmation of such claims. Alvarez, however, seemed unwilling to go with a simple Silver Star and a Purple Heart. Turns out that Alvarez never even served in the military unless he could claim the water board made him some type of Seabee.

Then there is Rick Glen Strandlof, who claimed to be wounded Marine veteran from Iraq who received a Purple Heart and Silver Star. Notably, he founded an organization in Colorado Springs that helped homeless veterans. He also pleaded guilty while reserving his right to challenge the constitutionality of the Act.

I have considerable reservations about a criminal charge for false claims of heroism alone. I have a constitutional right to burn a flag but, if I do so while wearing a purple heart, I can be criminally charged. It is a form of free speech, in my view, that is protected under the first amendment. People adopt false personas for various reasons — few good reasons to be sure. However, if Congress can criminalize false military claims, it can criminalize false claims by architects and accountants that are made without financial benefit or fraud.

Craig Missakian, a federal prosecutor in the California case, insists that Congress can prosecute such cases on the basis of the Constitution’s grant of authority to raise and support an army, and that includes, by extension, “protecting the worth and value of these medals.” That interpretation would effectively use this narrow provision to support an endless array of criminal provisions since a great variety of things could be viewed as inimical to military service.

I understand the motivations of Rep. Salazar and the other sponsors and share their anger at these cases. I find false claims of military honors to be repugnant and worth of social condemnation. I strongly support prosecuting people who use such claims for financial gain. However, under this standard, half of the pick up lines in bars across the country could be criminalized. It is another example, in my view, of the over-criminalization of our society where every repugnant act has to be criminalized to show how strongly we feel about it (here). These two men deserve to be social pariahs, but I do not believe that they deserve to be felons absent a claim of financial gain.

For the full story, click here.

18 thoughts on “Semper Fraud: Two False Heroes Challenge The Constitutionality of The Stolen Valor Act”

  1. I was in the military with a guy who claims that his father died during the September 11th attacks, and from being around the kid over the years and rarely hearing about him mention his father I just figured that talking about his father was a touchy subject for him so I never brought it up. Anyways he pointed his father out to me on a poster and the gentlemen had his last name, but there was a page on the web in his honor and I saw that he has three boys and never mentioned my friend in the article. I know that this guy is none to tell tall tales. How should I go about getting to the bottom of this without pissing someone off. I just don’t want this guy getting recognition for claiming a true hero as his father when in fact he is not. Please I am open for any advice on this matter.

    God Bless

  2. As the mother to three military sons, wife to a retired Marine and daughter to a retired Captain, I must ask, Where is the justice? Laws are created where the innocent have been harmed, not simply to thwart attempt or deter. As a writer for military families in the Atlanta area, I have seen the grief of families whose children have given their lives for their country. I am moved by those who must watch their children leave for, perhaps, the last time. Selfless acts donated by choice and paid with their lives. If these acts of brave and selfless devotion can be claimed by anyone who buys the correct decoration affording the respect, then what of the true heroes? Where is their memory to be kept when anyone with access to such self-indulgence can simply claim what others have given? I am for any law preventing any such attempt by anyone other than those who have rightfully earned it. But more so, I am for any law protecting the rights of any famly members left behind to carry the burden of what their children have (truly) given. This is not a victimless crime.If we must begin to wonder upon the constitutionality of the rights of those who *take* versus the rights of those who have given, *truthfully*…then what have any of them died for? Margaret Aikens Atlanta Military families Examiner/

  3. Tom,

    I won’t disagree in principle, but you show me the guy or gal who has never lied for sex and I’ll show you the exception to the rule. It’s human nature to lie to get sex. As evidence, I point to every hormonal teenage male (who as a rule will say ANYTHING to get laid) and the fact women wear make-up (also a kind of lie).

  4. Buddha is laughing, with whom I usually agree, says “Even if the lie is one solely to get sex or impress the people who picked on you in high school, it still falls under the category of one of Twain’s “damned lies”” Actually, lying to someone to get them to have sex with you is a crime in many places, and should be in all places. Sex requires consent and consent cannot be honest & informed and thus truly consent if one is deceived about what one is consenting to.

  5. The stipulation of financial gain is key. One can outlaw lying and simply imprison everyone in accord with human nature. But crimes, such as fraud, have a damage component: financial gain through deception. If one is not lying to an illegal financial or other end (such as fraud committed in furtherance of a greater charge or in furtherance of a conspiracy), there is no practical sense in punishing deception. If there is no harm but to perception, there is no actual harm. Because if deception is illegal, Penn and Teller should be hauled in.

    Punishing those who harm others is the proper function of criminal law, not punishing those who are just screwing around. Which is good considering the nature of human adolescents. We’d all have records if that were the case. As an example in modern media of one who plays that line, I submit Sacha Baron Cohen’s Borat although the premise can be traced as far back as shows like Candid Camera. While these shows are done for profit, they are not done at the actual financial detriment of those pranked but rather by assembling the “victims” reactions to said pranks into an artistic product. That’s a far cry from extortion or theft by deception. So is assuming false valor unless it’s in furtherance of a crime.

    True, I won’t argue it takes a low person to assume credit for actions, especially heroic actions, that one did not in fact do. Even if the lie is one solely to get sex or impress the people who picked on you in high school, it still falls under the category of one of Twain’s “damned lies”. It’s ethically wrong and socially reprehensible.

    But should it be criminal absent other substantial harm? Isn’t the discovery of the deception punishment enough? For a lie is one thing but to be a known liar another – even in a culture as bereft of social shame as America (in contrast with say the Japanese). In these cases, the discovery negates any benefit, social or sexual, that stood to be gained from using “false plumage” in a group social setting. To be labeled by the law as a liar is yet another thing still. Sure, the lies of false valor deserve to be exposed and the perps embarrassed as they should be, but giving them a record for merely being a tool is excessive. No pecuniary gain or greater crime, no foul.

  6. Mike,
    While I do believe there are too many laws on the books, it doesn’t mean additional laws are unnecessary when we find issues that must be addressed. As to Professor Turley and others questioning the Constitutionality of the Stolen Valor Act, I am NOT disappointed in their views. There are legitimate arguements to be made on both sides of an issue in a free society. This discussion is not one that is unexpected and which, I hope in the long run, will ultimately be settled the way I believe it will be (and as it was in the Central District Court in California in the Alvarez motion) by upholding the SV Act.

    As to the question as to whether Stolen Valor violations should only be prosecutable in cases of fraud, I do submit that the specific acts of Stolen Valor (wearing or claiming unearned awards) are FRAUD in and of themselves. It will be interesting to follow the debate in the courts on this one, and how it will spill over to affect other issues of speech.

  7. Jay S.,

    I am sorry I do not understand why you are disappointed in Turley. What did he do to make this so?

  8. I’m disappointed with Jonathan Turley on this one. By analogy, is lying on your resume just “free speech”? Suppose you claim a graduate degree you don’t really need in order to do the job, just to finesse out the other applicants?

    Also, if every Tom, Dick and Suzy can lie about having Medals of Honor, doesn’t that devalue the award to the legitimate heroes?

    Again, I’m disappointed.

    And, actually, maybe having some way to verify pick-up lines in bars might be a good idea!

  9. Doug,
    You bring up some compelling instances, but all of them supply their own dire pitfalls if and when the perp is discovered. I would think that as a conservative you might go along with the notion that we have already to many laws on the criminal books and it is a mistake to try to legislate away eachnew example of people’s stupidity, cupidity or criminality.

  10. Professor Turley,
    As political Conservatives, my wife and I share your concerns for Constitutional protections. In fact, my wife wrote the policy analysis for the legislation that became the SV Act and shepherded it through Congress, as both Congressman Salazar’s House website and a December 2006 article in “Roll Call” will verify.

    I have personally worked on HUNDREDS of these Stolen Valor cases and turned many over to the FBI for investigation and prosecution. In nearly EVERY case to date, there has been underlying fraud, often not reported. In one example from early last year, near Reno, Nevada, a phony Navy Cross recipient was outed after reports that he was to have been Grand Marshall of the Memorial Day parade. This information was reported in media. What was NOT reported and what few people know, is that following our outing of the individual, we received several emails of thanks from individuals and organizations this man had previously conned (based on his hero personal) out of financial assistance, dontations, and more. This is TYPICAL in the vast majority of these cases.

    Furthermore, the issue of FRAUD itself becomes muddy. Judge Michael O’Brien in Illinois had TWO Medals of Honor hanging on his courtroom wall, which he claimed he earned in Vietnam, and published same in his campaign and biographical material. Did this claim enhance his judicial career and if so, was that fraud? In Florida a man used false claims of being a Medal of Honor recipient and founder of the Navy SEALs to impress a recently widowed woman whose husband was a veteran and who herself was drawn to veterans. He bilked her out of more than $40,000 in activities that were poor judgement on her part, but really NOT illegal (therefore FRAUD). Did he benefit?

    In two of our SV Cases in Californis (Pietrowski and Nelson) the individuals lied to the FBI when they were interviewed. Subsequently both were charged with lying to the FBI in addition to the Stolen Valor charges. As you are aware, it is a crime to lie to the FBI. Would striking down the SV Act roll over to that element of lyin as well?

    I could provide many more examples from my case files if you are interested in a more indepth look at this problem.

    Doug and Pam Sterner

  11. OY, OY, OY.

    What have we gotten ourselves into. Do Politicians ever lie? Would an unfunded mandate be considered a lie? To wit, No Child left behind….

    I agree with what Buddha said that mespo said and what Pinandpuller said. There has to be a balance.

    In the main article, Turley was quoted as saying ”
    Jonathan Turley, a professor at George Washington University Law School who is not involved in the two cases, said the Stolen Valor Act raises serious constitutional questions because it in effect bans bragging or exaggerating about yourself.”

    It would then make it easy for pick up lines in bars to be prosecutable. I am glad those days are over…..

  12. Pinpuller:

    “But how about telephone repairmen?”

    That is a classic example of stupidity in the extreme which the law won’t tolerate.

  13. For years we have avoided criminalizing both lying and stupidity, this Act does both under less than compelling circumstances. It should be declared unconstitutional.

  14. 10 USC 771 and 772 have long criminalized the unauthorized wearing of a military uniform, and there have been convictions (most quite some time ago).

    There is certainly a line out there, but where is it? I would agree that merely claiming entitlement to certain awards or decorations, without more, is not punishable. Is actually wearing an unauthorized uniform or decorations speech or conduct? Or did the flag burning case resolve that issue against the gov’t?

    One could analogize to laws prohibiting impersonation of a police officer. When does one cross the line from Halloween costume to actually breaking the law? Is simply wearing a blue windbreaker with a big yellow “police” label enough, or does one have to actually act with the authority of a police officer?

    Probably the best solution is to just toss these imposters in the ring with a few actual Marines. Ought to satisfy all parties.

  15. “…We previously (met) Rick Glen Strandlof, who claimed to be wounded Marine veteran from Iraq who received a Purple Heart and Silver Star. Notably, we founded an organization in Colorado Springs that helped homeless veterans…”

    Granted we don’t have all the information, but given solely the above, I see the strong potential of personal financial gain. If Strandlof’s occupation is the operating of this organization and he includes these false claims in his fundraising efforts, he certainly seems to be gaining financially for his own benefit. Hasn’t he crossed some line? Sales and marketing hype take a degtee of license with product claims, but isn’t there a tinge of yelling fire in a theater in this?

    On the other hand, I recall fairly recent Supreme Court findings wherein news organizations and political campaigns are not required to tell the truth.

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