10th Cir.: lies about military service not protected

A federal appeals court recently upheld the constitutionality of a controversial law that criminalizes lying about the receipt of military honors, just weeks before the U.S. Supreme Court will consider a case that struck down the statute.

A divided three-judge panel of the U.S. Court of Appeals in Denver (10th Cir.) held on Friday that false statements are not always protected free speech. The court thus reversed a lower ruling that the Stolen Valor Act violates the First Amendment.

The opinion is the latest in a series of court decisions addressing the issue. A federal trial court in Iowa found the statute to be an unconstitutional content-based restriction on speech, while a Virginia federal trial court upheld the law. In October, the Supreme Court agreed to hear United States v. Alvarez, in which the U.S. Court of Appeals in San Francisco (9th Cir.) ruled that the Stolen Valor Act was unconstitutional because of the severe limitations it places on the First Amendment. Oral arguments are scheduled for next month.

The Colorado case centered on statements made over several years by Rick Strandlof, who, despite having never served in the armed forces, founded the Colorado Veterans Alliance. According to the opinion in United States v. Strandlof, Strandlof frequently told veterans he graduated from the U.S. Naval Academy, was a former U.S. Marine Corps captain, had been wounded in combat in Iraq and subsequently awarded the Purple Heart and Silver Star.

After several local veterans reported Strandlof to federal authorities, the government charged him in 2009 with violation of the Stolen Valor Act, which was adopted in 2006 and makes it a crime to “falsely represent[] oneself as having been awarded any decoration or medal authorized by Congress for the Armed Forces.”

The trial judge dismissed the charge, finding that the speech criminalized by the Stolen Valor Act did not fall within one of the narrow categories of false speech that have historically been unprotected by the First Amendment, such as fraud or defamation.

The appellate court disagreed, noting that “knowingly false factual statements are not intrinsically protected under the First Amendment”—a principle that extends “well beyond the narrow context of defamation.”

“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. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment,” two of the three judges on the panel said.

Judge Jerome Holmes dissented, saying, “[t]he majority holds that [false statements of fact] — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact.”

The Reporters Committee for Freedom of the Press and 23 news media organizations filed an amici brief in Alvarez, arguing that criminalizing false speech would eviscerate press freedom by marking a return to the post-World War I days, when the government convicted newspaper publishers and others for allegedly false news reports.

Alvarez involves a California man who, despite never serving in the military, stated at a municipal water board meeting that he had served in the armed forces for almost three decades and received a Medal of Honor.