Why the Supreme Court’s prescription for Stolen Valor won’t work.
[EDITORS NOTE: This is the longest blog posting in history, so you might want to print it out and read it when you have the time. I apologize for the length, but I think it is necessary to make the point I wanted to make; to wit, that the Supreme Court’s answer to the Stolen Valor Problem is not only unworkable, but unnecessarily puts folks in jeopardy of legal or physical disputes. Also, thanks to Ranger Up for the appropriate graphic.]
As you know, I disagree with the Supreme Court’s ruling in Alvarez in many aspects. Fair enough, I disagree with a lot of legal decisions. Most folks seem pleased with the decision, thinking that the Stolen Valor Law somehow chilled free speech. That was something even the defense in the case didn’t argue, but whatever.
Nonetheless, despite the ruling, I wanted to focus on what their answer was to stolen valor phonies, and how the “free market of ideas” could be used to counter them. Specifically, the plurality decision’s author Justice Kennedy stated that:
The Government has not shown, and cannot show, why counter speech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counter speech, of refutation, can overcome the lie.…
The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth…
It is a fair assumption that any true holders of the Medal who had heard of Alvarez’s false claims would have been fully vindicated by the community’s expression of outrage, showing as it did the Nation’s high regard for the Medal. The same can be said for the Government’s interest. The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradition. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.
It might not need handcuffs or a badge, but as I will show later, it better have at least a concealed carry permit, because these phonies seldom respond to you outing them with some sort of cheery aplomb.
But this answer fails on two separate levels, the first eloquently stated in the dissent written by Justice Alito:
Because a sufficiently comprehensive database is not practicable, lies about military awards cannot be remedied by what the plurality calls “counterspeech.” Ante, at 15. Without the requisite database, many efforts to refute false claims may be thwarted, and some legitimate award recipients may be erroneously attacked. In addition, a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent….
….the proliferation of false claims about military awards blurs the signal given out by the actual awards by making them seem more common than they really are, and this diluting effect harms the military by hampering its efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags.
Now, I disagree with Justice Alito that a database such as that suggested is not possible, in the sense that one couldn’t be made. But even more vigrorously do I dispute the majoritys notion that such a database would serve to counter these liars, since most people won’t even know enough to look these things up, and if they do and the guy is in fact a liar, than we run into the problem that the Justice cited about exacerbating the problem.
But even so, what the decision gives as a whole is a sort of remedy which is to give a sort of credence to a vigilante group of veterans and others who counter the lies with truthful speech. As my friend Jonn Lilyea aptly noted the other day:
The USSC decided that the public sector is doing a fine job of policing the ranks. There may be some illiterate [idiots], like Sharkey who think that the USSC’s overturning of the Stolen Valor Act means that we can’t do here what the government won’t do – but that’s not it at all. Like I told the ABC crew, it probably means that decision was good for our business. More idiots, like Sharkey, think they can get away with their thievery.
But This Ain’t Hell and all of our partners are the stocks and dunking chairs in the village square of the internet – a place where folks can come and throw rotten tomatoes at the valor thieves. The Supreme Court gave us a warrant to be the internet’s vigilantes and bounty hunters.
As Jonn notes, from a strictly business sense, this is good for military bloggers who will likely enjoy some increased traffic. But from the standpoint of acknowledging real heroism etc, it would have been better if the Supremes had gone the other way.
Even within the realm of military bloggers doing the job, there are two problems. The first is that some folks are virtually immune to shaming. Take for instance one of the few people who had an actual sentence looming before this decision: Rick Strandlof. For those who don’t recall Rick, he first scammed a bunch of people in Reno, Nevada where he was doing some sort of fraudulent scheme to bring racing to the area. He later turned up in Colorado as an openly gay, former Marine Battalion Commander, wounded in the Battle of Fallujah, who was doing campaign commercials for US Rep candidates and raising funds for his veterans group. Subsequent research would show he never served. When busted as “Duncan” he went underground again, emerging as “Rick Gold”, a Denver Attorney and Israel supporter who was living with the Occupy Movement. Every time he gets busted and ridiculed, he simply re-invents himself.
The second problem is that these guys who are busted don’t appreciate being busted, and start threatening everyone under the sun with legal and physical threats. The first threat I received was from an anti-war activist who had been inventing a past for himself who is named Evan Knappenberger, who among other things threatened to blow up a Gathering of Eagles event.
We will fix the broken world… save it from all the chickenhawk armchair warrior gathering of idiots. But I still want to blow up their [expletive] gathering
Later on I would get a phone call at work, from someone who later claimed to be Knappenberg:
“KEEP MY NAME OFF YOUR BLOG OR WE SETTLE UP IN PERSON.”
And apparently threatening bloggers wasn’t his only foray into using threats to counter things, as this “Peace Activist” was subsequently arrested and convicted of harassing his then-wife.
In response to our pieces on Knappenberger and to invitations to attend an anti-war rally, a friend of his in Iraq Veterans Against the War, Jonathan DeWald starting issuing similar threats. It was quickly found that DeWald’s tales of heroism were equally based on pure fiction. Which led to this threat (he included the crossed out portion, and then realized it was a threat, so the crossed out portions were his original statement):
I don’t know what [expletive] idiot lobbied for these shithead right-wingers to be allowed at Winter Soldier but I fear for their safety on the campus. Me, I’m not doing [expletive] to them. Not at Winter Soldier, anyway. But I’m far from being the only IVAW member who’s quick with his fists. Also: after putting up with weeks of crude, sexual insults from conservative bloggers [Me, The Sniper and Lilyea] and all those other cockroaches, I’ve decided I’m probably going to waste most of them on sight dry-hump them all if I see them in DC away from Winter Soldier. I’ll give them a clear, verbal ten-second exit opportunity to clear out of my [expletive] field of vision in some pub, restaurant or subway stop. If they don’t get the [expletive] out of my sight… oh, well. Sorry.
Then last year it was Jonathan “the Impaler” Sharkey. When not busy being a professional wrestler, running for President or other political office (repeatedly losing) and getting 16 year old girls to run away with him, Sharkey enjoys Vampirism and threatening bloggers who point out his fictional military bio is fictional. Sharkey’s threats run the gamut from legal action (“Look up the word Libel Per Se. My high price New York City attorneys are very good at filing lawsuits for it.) to threats of beheading.
As I told Jonn, Florida has a long arm when it comes to justice. I don’t have to time deal with You or your associates. I don’t associate with drug dealers, unlike you.
Contact me again or your buddies, especially since you are in IRAQIANA (interstate harassment) , and I promse you, I wont wait to see what the Feds do. I’ll contact FL DA Mark Ober (R) and file harassment charges. You are not mainstream media. Nor are you like by mainstream media. I owe you no answers or anything.
Further, he makes clear that even though he knows his legal filings are without merit, he doesn’t care as long as he exhausts any funds of the defendant:
I hope the owners and sponsors of this site, as well as yourself, are likely to have pockets worth reaching into. Even if I don't win, I will enjoy watching you finance the new homes and cars for your defense lawyers.
As for physical threats, it seems to revolve around his vampirism beliefs, he started by reminding us that the Secret Service had already investigated him for threats, and he had been cleared, and then noting:
Being from a descent of the greatest ruler ever - Prince Vlad Tepes aka The Impaler, I challenge you and those who work for you to a battle to the death in 2 months at Ft. Dix, NJ. In Jersey, the weak are killed and eaten. we are the greatest best, and most bad ass state in the UNION!
No firearms though. Medieval weapons. I will have U.S. Secret Service Agents I know from jersey be monitors of the battle, because, I don't trust you domestic terrorists.
Like Vlad, I will beat you, torture you, IMPALE you, then dismember you and when all is said and done, I will decapitate you all, and your heads will be used that night for a Satanic Ritual. My God will be praised the day.
From threats of lawsuits to impaling and dismemberment, all for pointing out that this candidate for our highest elective office was lying about his military background.
Which brings us to Dallas Wittgenfeld and his friends. Sometimes there is not unanimity amongst the Stolen Valor group on who we should go after and who we should just let go. Last week I talked to Jonn about two guys he was tracking, Wittgenfeld and a guy running for Congress named Ken Aden. The claim against Aden I thought was difficult. Aden claimed to be a “Green Beret” but there was no Special Forces School listed on his DD214. What there was was an odd statement that he had been an “18B” MOS that is Special Forces. Jonn was convinced that Aden was never officially Special Forces, and had been pressuring various Arkansas newspapers to research it (without any apparent success) for nearly two months. And then as soon as I brought up my concern about Aden, the Arkansas Democrat Gazette finally published a story on what Jonn had been working on for months:
Third Congressional District candidate Ken Aden has claimed he’s a Green Beret, but his military records indicate he washed out of Special Forces training, not once but three times.
Aden, a Democrat from Russellville, has said throughout his campaign that he is qualified as a Special Forces soldier. Documents obtained Wednesday by the Arkansas Democrat-Gazette through a federal Freedom of Information Act request indicate that Aden never completed the qualification course to become a Special Forces soldier.
The discrepancies have also brought into question Aden’s academic claims. Aden claims to have an associate degree from Arkansas State University, but the registrar’s office said he never took a class there.
So I was wrong and Lilyea was right on that one. But I still felt Dallas Wittgenfeld should be left alone, largely because the discrepancies between his records and some things written about him weren’t that horrible. From information that had been compiled by the POW Network, Doug Sterner, the website “Stolen Valor Offenders Exposed”, Lilyea at This Ain’t Hell and the guys who run the Stolen Valor Page on Facebook, we already knew that Wittgenfeld had served in Viet Nam, first as a LRRP (Long Range Reconnaissance Patrol) and then as a Ranger. He had been wounded twice, and had served as an RTO (Radio Telephone Operator, the guys with the radios that run with the infantry.) And his DD214 discharge papers reflected that he had earned the Combat Infantryman’s Badge. In short, he had an outstanding military record that should be honored.
But there were a few small discrepancies. First, he was photographed wearing a Green Beret, and had even been inducted into the Special Forces Association, but nothing in his record showed service or schooling as a Green Beret. Further, he was reported in several news sources that he had been awarded a Bronze Star with “V” device, and yet there was nothing noted.
You can look at the Stolen Valor Offenders Exposed which lists all of the claims, and points to the various media sources which contained the claims that he had been a Green Beret with a Bronze Star. Now, I thought that perhaps there was an innocent explanation for all of this, since the sources on this were various media reports, and the media often gets things wrong. In fact, on two occasions I had to contact the media to ensure they corrected something that said I was an Iraq veteran, when I have never been in that country.
But I was getting a lot of emails from others wanting me to look into Mr Wittgenfeld’s record. I thought I would do the right thing and email him first, to see if my theory of a screw up by the media was to blame. My email to him:
I am the New Media Manager for The American Legion, and am tasked with finding and publicizing violations of the Stolen Valor Act. I am also an attorney and member of the Bar Association of Indiana. In the wake of having “outted” the phony story of the America’s Got Talent Contestant Tim Poe several weeks ago, I have received emails from numerous individuals asking me to investigate some of your claims, specifically having worn the Green Beret in an unauthorized fashion and having claimed to be a recipient of the Bronze Star. As you no doubt know, the second claim comes from several newspaper accounts regarding your jumping. It was noted by one emailer that you claim to be 100% disabled by the Department of Veterans Affairs, and yet are apparently healthy enough to engage in parachute jumps.*
As with all such endeavors, I send an email to the person as soon as I get the info, and allow them the opportunity to clear the air before I bother researching it, since many of the issues are miscommunications. Can you explain to me the wearing of the Green Beret (are you authorized to do so) and the claims of earning the bronze star.
If you chose not to answer my questions, I will certainly understand, but I did want to give you the opportunity to respond.
[*Mr Wittgenfeld has subsequently clarified that the 100% is for service connected PTSD. According to the VA, 100% for PTSD is issued in cases where the individual shows
Total occupational and social impairment, due to such symptoms as: gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personnal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation occupation, or own name.
This may explain some of the errors, but nonetheless bears mentioning. It was also partially the reason I didn't want to write anything about him, however, his 20+ attempts to malign me on various websites neccessitated a response.]
I gave Mr Wittgenfeld my phone number as well in a subsequent email thinking perhaps he could call and explain it to me. It did rather stretch my credulity to imagine that 8 independent reporters all made the same innocent error, but I was willing to give him the chance to apologize, explain or offer some enlightenment. It was an error I would soon regret.
In less than a week I have now received 26 emails from Mr Wittgenfeld alternately claiming that I am harassing him, that the Alvarez decision exonerates him, that it is against the law to impugn 100 percent service connected veterans (it is not), that he will come to Indy to set me straight and a host of other things. In one of his more disturbing dispatches, he threatened to sic the “Indiana Airborne Rangers” on me:
I want everyone possible to see the Indiana Airborne Rangers eating your ass out in downtown Indy. I am bringing the network cameras, too.
I don’t really understand the nature of that threat, but I know it would have to be done against my will. Mr. Wittgenfeld at varied times threatened to come out here himself (“Shame on you, Legg. I am coming to Indianapolis now...”), to have the Rangers pay me a visit, or to have the “Green Beret Network” handle it.
This is where things got even more bizarre. As near as I can tell from the website, the “Green Beret Network” is just one guy, named Bob Golden. In researching Mr Golden and Mr Wittgenfeld, I wasn’t surprised to learn that the two shared an address at one point in Florida. (“Name Associated with Address: DALLAS WITTGENFELD Current Residents at Address: BOB GOLDEN.” One of my readers is a Private Investigator.) What also did not surprise me is that Mr Golden has his own problems with Stolen Valor, according to Major John Hauck who disputes that Golden was part of "Mike Force" like he claims, and questions many of Golden's resume items:
I do not accept his explanations of the discrepancies I found. His military records do not agree with his responses. In other words, Golden is lying about each and every item. His wannabee status started upon completion of Artillery OCS, 10 months after enlistment in the US Army, and has continued until today. My observations of this man from the time he came on the Special Forces List, shortly after I arrived in February 1998, until present, indicate he consistently inflates and sensationalizes any situation that will make himself look like the key figure and inflate his ego, true or not. I have always been suspect of his claims, since day one.
Further, I started receiving email complaints at work about me, which were forwarded to other divisions not my immediate bosses. What was odd was that they were coming from a third person:
You have a Mark C.Seavey Esq. that is openly harassing a Vietnam Veteran 100% disabled PTSD certified Ranger, with emails that are related to the stolen valor act. Your representative accused this veteran of inappropriate attire and wearing unearned medals. The attorney is tied with a blog called the burn pit (not very nice content aimed at veterans)and is associated with a Facebook cyber-bully group called "this ain't hell". Your attorney is openly harassing Mr Dallas Wittgenfield a decorated veteran who has served his country with honor. This is unacceptable behavior especially from a representative of the LEGION. We find this behavior distasteful and totally disrespectful. We demand a redress of this attorney and his actions. It is beneath the operations of the legion to harass veterans in such a way. I am an uncompensated advocate for harassed veterans online and will make issue with this if not addressed immediately. Thank You
11743 Mohawk Rd
Apple Valley, CA 92308
I had never heard of an “uncompensated advocate for harassed veterans online” so I started looking up Mr South. It turns out that Mr South is himself a Stolen Valor guy, having claimed without reason on numerous occasions to be a Navy SEAL. (He also apparently runs some sort of church, and apparently likes to use profanity, so slight language warning on that link.)
And right after receiving those emails, this blog posting popped up:
There were many complaints issued yesterday to the American Legion concerning Sealy's association with hate-mongering groups and blogs of which he is one of many administrators and a sole owner of one blog in particular…
Now Sealy is crying the blues because he was taken to the carpet by his superiors at the Legion for his open harassment.
Note that while Mr. Wittgenfeld et al write erroneous comments about me on my blog, at Military.com, at Stars and Stripes etc, his own comment section is oddly closed to comments.
You’d think they would get my name right, but alas no. And I didn’t get “taken to the carpet” by my “superiors.” My Executive Director asked me about what this guy was talking about and I showed him the emails. Then he just nodded and I went back to work. It might have been an inconvenience for the three minutes I was upstairs, but it wasn’t exactly a waterboarding. I have the most supportive bosses ever, and they know I would never cross into harassment or any other legal issue.
So, I now have Mr South trying to have me fired, Mr Wittgenfeld sending random emails, and Mr Golden who is apparently doing a background search into me. The latter came up with this farcical looking “Dossier” on me that Wittgenfeld emailed me:
To answer your unasked question, I do not know what appears on pages 2-4, but I suspect it is some real incriminating things like my having failed typing in High School and my crappy art made with macaroni from the third grade. What appears on this is just stuff stolen from my Facebook page, which I leave readable to anyone that wants to read how I am watching “Revenge of the Nerds” (Saturday) or how I am being honored by my friend The Sniper with a special home brew he is making and calling “The Litigator.”
In addition to the earlier noted threats against me, Mr Wittgenfeld isn’t afraid to hurl around threats and racial epithets whenever he feels cornered. (Apologize for the words here, but I can’t figure out how to properly edit and show that it was him, SOURCE IS HERE.)
Even the POW Network’s Mary Schantag is being hounded by this guy, who keeps making fun of how Mary was widowed earlier this year. Mary hosts a gala each year to honor local veterans, and which serves as a meager source of fund raising for her excellent work at the POW Network registry of phonies, and Wittgenfeld is threatening to crash the event.
Well, Well, Ms. Mary the Black Widow Schantag,
Seems the Supreme Court just killed your "Stolen Valor Act" financial crutch for your non-profit educational mission. Reality is NOW I can wear a medal of honor to your big military gala this Veterans Day 2012 and you better NOT say shit. That's how dead your mission is today.
And he is now also talking about how he bought a gun and a knife especially for the event. (His IP address for this comment matches that known to come from Wittgenfeld.)
So, in short, Dallas Wittgenfeld has threatened me with physical harm and some sort of ill defined legal threat for harassment. The legal threat is without factual basis, as I have merely responded to each of his emails, and the first one I sent contains no threats or harassment and I even told him that he could refuse to respond.
Meanwhile he has communicated a threat through the internet, asserted the existence of some sort of idiot/phony cabal of people out to get me, taken photos from my Facebook account without attribution, used the logo of The American Legion with no Fair Use justification, and engaged in tortious interference with my work. (Which had it come to fruition and I had been fired would have opened him up to all sorts of legal problems.) And to this day he continues to defame me with farcical accusations on the blog that he and Arthur South post at.
He truly does have an excellent record from Viet Nam, and is clearly troubled by his PTSD, but that doesn't give him a free pass to just threaten people and scare them. A recently widowed woman who only does her best to perserve the honor and integrity of actual medal recipients is not a legitamite target by any stretch.
Normally I would agree with the Supreme Court in the answer to false speech being true speech. I think in the normal marketplace of ideas that is the way things like this should be handled. However, I think the Stolen Valor Act is special in two regards. One, unlike some of the hyperbolic comments about this case, it was never about just lies, it was about very specific lies that are verifiable. Whether one is a recipient of an award for valor is not subject to the vagaries of interpretation that a comment about Global Warming or some other political issue might be. Secondly, when people start threatening those who seek to counter false speech with true speech and make themselves susceptible to threats of litigation or physical harm, I think there needs to be a different remedy.
But overall, I would close again with the words of Justice Alito:
a steady stream of stories in the media about the exposure of imposters would tend to increase skepticism among members of the public about the entire awards system.
Yes it will, unless we get too scared to even post, then these guys get a free pass. Let's hope that doesn't happen.