Rick Duncan, the ACLU, and a Constitutional Right to Lie
January 21st, 2010 by MOTHAX
Is lying about military medals and awards constitutionally protected? The ACLU and their friends think so. Picture courtesy of the Denver Post This is an update to our earlier posts. We first covered Rick Duncan/Strandlof in this post here. You will recall that he lied about being a USNA Graduate, lied about being at the Pentagon on 9/11, lied about fighting in Fallujah and lied about being wounded. Actually, he lied about everything, since “Rick Duncan” is actually Rick Glen Strandlof. After finally getting the U.S. Attorney’s Office to prosecute, based in no small part on the involvement of all of you who wrote, called and emailed that office, he was arrested by the FBI in San Diego one week later. So now Duncan’s trial has begun, and his defense probably won’t make you happy:
Rick Strandlof may have lied about being a decorated Iraq War veteran, but those lies are protected by the First Amendment, according to his attorney and a civil liberties organization. Strandlof, 32, is charged in U.S. District Court in Denver with five misdemeanors related to violating the Stolen Valor Act — specifically, making false claims about receiving military decorations. He is accused of posing as "Rick Duncan," a wounded Marine captain who received a Purple Heart and a Silver Star. Strandlof used that persona to found the Colorado Veterans Alliance and solicit funds for the organization.I contacted some lawyers who managed to get the legal filings for this case for me. (If you wish to get copies for yourself, email me with the subject reading “Strandlof/Duncan filings” at email@example.com.) On a good note, professor Eugene Volokh of UCLA has filed a “Friend of the Court Brief” on behalf of the government, and persuasively argues that the Stolen Valor Law is constitutional. (Professor Volokh runs a phenomenal legal blog called The Volokh Conspiracy which has several authors that I had as professors at George Mason Law School.) Arrayed against him is the usual gang, led by the ACLU and the Rutherford Institute. The ACLU in its brief argues that:
I. The Mere Falsity Of A Statement Of Fact Does Not Remove It From The Scope Of Constitutional Protection II. The Act Is Subject To Strict Scrutiny Because It Is A Content-Based Regulation Of Pure Speech; and III. The Government Cannot Meet Its Burden Of Showing That Section 704(b) Of The Act Survives Strict Scrutiny [because] [t]he asserted interest in protecting the reputation of military decorations is not “compelling.I won’t go through the initial arguments, as the law is somewhat difficult to understand if you aren’t accustomed to reading such things. But, again, happy to send it to anyone who wants to read it. I would like to address the last part, and to see what you guys think about this passage from the Rutherford Institute Amicus:
[…] false claims of military distinction do not in any real sense diminish the honor earned and bestowed on those who have truly earned this nation’s highest military award. Save the situation where there is a false claim that a medal or decoration recipient did not earn his or her award (a situation which would involve the kind of individualized harm the government may prevent or punish), the false, self-aggrandizing statements of others cannot lessen the honor bestowed on those who have achieved their military awards. This is not a zero-sum situation where a claim of battlefield distinction or courage by one (false or otherwise) necessarily diverts respect and honor from others who have actually earned their awards. […] By the same token, a false claim to a military honor does not change the attitude of citizens towards those who truthfully claim military distinction.My personal opinion is that this is nonsense. Every time someone goes before a group of people or a TV camera and claims to have the Combat Infantryman’s Badge, I look it up. When someone claims that they have seen combat and that they are now anti-war because of the horrible things they have done and seen, I track them. But how many others do? How many people turned against the troops and against the wars in which we are engaged based on the personal anecdotes of phony veterans who made up their entire story? And does that, in fact, not damage all of us? For all of Rick Duncan/Strandlof’s perfidy, let us not forget that he was raising money ostensibly to help homeless veterans. He was then exposed as a liar and fraud. Still those veterans remain homeless, and no doubt others stepped up to try to raise money and advocate on their behalf. But how much more difficult is it to raise money now, after the guy who previously did it was exposed as a mental patient? The American Legion is currently considering filing an Amicus Curiae brief should this case be appealed. Alas, we missed the opportunity to file for this immediate case. My question to you is this: Do you suffer harm from individuals claiming medals that they were not awarded? In what form does this harm manifest itself? Please email this around to other veterans, and let’s get to work on this. Have you been harmed?
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