Blind Loyalty

“Oh, so you’re a vet. Me too– ‘Nam. I was a SEAL doing Mekong river patrols in the DMZ. Also worked as a LRRP in Project Phoenix. Charlie shot me up pretty bad, too. Got a Purple Heart and two Silver Stars.”

Ever run across a “vet” like that? Okay, usually the embellishments aren’t quite that shameless or the contradictions so obvious. But for a true veteran, it doesn’t take long to spot an imposter. When this occurs, I usually just let it pass, making a mental note of the blowhard, and resolving to avoid any further contact with him. Letting it pass, though, doesn’t mean that it doesn’t bother me. None of us would ever dream of wearing a decoration we had not earned and would consider it dishonorable to do so.

My experience with phony heroes came early on when a “classmate” at USAFA, having recently returned from Vietnam sporting a chest-full of medals, including the Bronze Star with “V” device and Purple Heart, waltzed through his doolie year over the slobbering adulation of officers, upperclassmen, and his classmates alike. It was not until he pressed to find out what happened to his Silver Star recommendation that it was discovered he’d not been to Vietnam at all, but had been a clerk-typist in Germany.

In 1998, B.G. Burkett, an army Vietnam vet, wrote “Stolen Valor,” documenting the theft of honor from real Vietnam vets, and their shameful stereotypes in Hollywood, Capitol Hill, and in the media as drug-crazed losers, sociopaths, and cardboard-adorned panhandlers hustling at traffic lights. This exploitation was abetted, if not made possible, by the large and ever-growing number of poseurs who exploited phony veteran status.

Sadly, this phenomenon persists. As the War on Terror approaches its second decade, there seem to be a proliferation of thieves appropriating others heroism for their own selfish purposes. In response, Congress passed the Stolen Valor Act in 2006. It established criminal penalties for anybody who sold, transferred, or displayed on their person medals, decorations, or badges (such as the Combat Infantry Badge), they had not actually earned. And, in particular, it punished those who would falsely claim to have earned decorations or other awards for heroism. Good, right?

Until a man by the name of Xavier Alvarez, newly elected to local office in California, claimed that he was a 25-year retired Marine and that he had won the Medal of Honor in (get this) 1987. He was none of the above. An actual Marine, Melissa Campbell, was suspicious and looked into it, confronting him on his lies. She was suspended from her job two weeks later and then fired for “unprofessional conduct.” (To show that there is still justice, though, Alvarez is presently in prison for embezzlement of public funds.) Did I mention that this was in California?

Alvarez was prosecuted and convicted under the Stolen Valor Act. The Ninth Circuit Court of Appeals, however, in a 2-1 opinion, held that it was an infringement of Alvarez’s free speech rights to penalize his fibs. Then it went further, holding that not only was the law unconstitutional as applied to Alvaraz, but was unconstitutional period.

Okay, so the Ninth Circuit has achieved a justifiable reputation for the frequency it is overruled by the Supreme Court. But here in Colorado, a district court decision just weeks before the Alvarez decision agreed with the Ninth Circuit in United States v. Strandlof. Strandlof, posing as Rick Duncan, claimed to be an Iraq war veteran with a Silver Star and a Purple Heart. He had never served in any branch of the service, much less had he been in combat. Elsewhere, in Virginia, and subsequently in Idaho, the law has been upheld.

From where I sit, the dissent in Alvarez has the better argument–namely that lying, at least in this context, is simply not protected speech. I daresay most non-lawyers would agree with that as a general proposition. Consider that the famous case of Schenck v. United States, the 1919 case where a World War I draft dissenter was successfully prosecuted, is the source of Justice Oliver Wendall Holmes Jr. famous metaphor of the man shouting “fire” in a theater. That, Holmes reasoned, was not speech that deserved constitutional protection. What is too-often overlooked is that Justice Holmes’ actual reference was to falsely shouting fire in a crowded theater. The jurisprudence since then has many twists and turns, but there appears no authoritative precedent which overturns the idea that intentionally false speech falls outside of First Amendment protection.

It’s not entirely clear where this will end up. The Justice Department filed a stay in the Alvarez case to allow them to appeal (file a writ of certiorari) to the U.S. Supreme Court, but to date there is no indication they have done so. The Strandlof case pends appeal in the 10th Circuit, with oral argument just held in May. Meantime, there is legislation pending (H.R. 1775), sponsored by Rep Doug Lamborn and others, that would repeal a portion of the Stolen Valor Act, (Title 18 Section 704(b)), and would replace it with another statute (Title 18 Section 1041) that would add the requirement that there be some element of fraud associated with the lie. While that might prove a good legislative fix, my hope is that Congress will not take action to dilute the Stolen Valor Act unless and until it has a definitive ruling from the Supreme Court on this matter.

We often heard it said that “freedom isn’t free.” Neither should the theft of honor from those who have safeguarded that freedom.