United States v. Strandlof Rick Strandlof, founder of Colorado Veterans Alliance, was accused of seeking to raise funds for that organization by posing as
Marine Captain "Rick Duncan" and claiming to have received a
Silver Star and
Purple Heart in the Iraq War. In January 2010, he challenged the constitutionality of the Stolen Valor Act in U.S. District Court in Denver, Colorado. Strandlof's attorney believed the law was too vague and that "protecting the reputation of military decorations is insufficient to survive [
strict scrutiny]", a level of judicial review that requires the government to justify any limitation it places on free speech. The Rutherford Institute, a Virginia-based civil liberties group, joined in the case on January 20, 2010. "Such expression remains within the presumptive protection afforded pure speech by the First Amendment," the institute's attorney wrote. "As such, the Stolen Valor Act is an unconstitutional restraint on the freedom of speech." Strandlof, 32, was charged with five misdemeanors related to violating the Act – specifically, making false claims about receiving military decorations. U.S. District Judge
Robert E. Blackburn issued his decision rejecting the prosecution's argument that lying about having military medals dilutes their meaning and significance. "This wholly unsubstantiated assertion is, frankly, shocking and, indeed, unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor," Blackburn wrote. "To suggest that the battlefield heroism of our servicemen and women is motivated in any way, let alone in a compelling way, by considerations of whether a medal may be awarded simply defies my comprehension." Attorney Chris Beall, who filed an
amicus curiae brief on behalf of the ACLU of Colorado, said the decision is remarkable. "The First Amendment protects speech we don't like," he said. "We don't need the First Amendment for speech people like. The government cannot criminalize a statement simply because it is false, no matter how important the statement is." Beall points out Strandlof wasn't charged with stealing money meant for the veterans group, adding that laws are already in place for those crimes. "That's plain-old, regular-vanilla everyday fraud, and we do prosecute that every day," he said. "Congress does not need a special statute to prevent people from using false claims of valor in order to prevent fraud." On January 27, 2012, the
U.S. Court of Appeals for the Tenth Circuit overruled the district court and reinstated the charges against Strandlof. Two judges on the three-judge panel held that false statements are not worthy of constitutional protection. In dissent, Judge Jerome Holmes wrote that the majority was reading language into the act to justify upholding it. On July 2, 2012, the Tenth Circuit vacated its previous opinion, writing, "In light of
United States v. Alvarez, we vacate both the opinion and the judgment issued on January 27, 2012."
United States v. Alvarez Initially the U.S. Court of Appeals for the Ninth Circuit decided
Alvarez on August 17, 2010, ruling the Stolen Valor Act unconstitutional. Specifically, in the 2–1 decision, Judge
Milan Smith stated for the court that lies not within traditionally unprotected subsets of false facts are subject to First Amendment protection, the Stolen Valor Act is not subject to defamation law precedent, and there is no compelling reason for government interest in banning such lies. "The right to speak and write whatever one chooses – including, to some degree, worthless, offensive and demonstrable untruths – without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment," Judge Smith wrote. If lying about a medal can be classified as a crime, Smith said, so many everyday lies could become criminal acts, such as lying about one's age, misrepresenting one's financial status on Facebook, or telling one's mother falsehoods about drinking, smoking, or sex. On March 21, 2011, a majority of judges in the
U.S. Court of Appeals for the Ninth Circuit refused to rehear the
Alvarez case
en banc. In the order refusing to hear the case en banc, Judge
Alex Kozinski issued a lengthy concurrence, responding to critics of the decision and asserting that the First Amendment covers most varieties of lying and misrepresentation, where not otherwise unprotected by the First Amendment under the traditional view. The traditional view holds that only certain varieties of speech are exempt from standard constitutional scrutiny such as fraud,
fighting words, defamation,
incitement (including to a “
clear and present danger”), and speech attendant to the commission of a crime. Judge
Diarmuid O'Scannlain dissented from the denial of rehearing arguing that false representations are not per se entitled to First Amendment protection. On October 17, 2011, the
U.S. Supreme Court agreed to consider the validity of the law. On June 28, 2012, the Supreme Court found the law unconstitutional in a 6to3 decision, with Justices Scalia, Thomas and Alito dissenting. ==Legacy==