'Act' of Valor: Ninth Circuit Decides First Amendment Does Not Protect People Who Sport Phony Medals

David Perelman served in Vietnam for all of three months back in 1971, and returned to the U.S. without a scratch.

When he accidentally shot himself 20 years later though, he tried to turn the mishap into an act of valor and claimed the wound was actually a shrapnel injury from the war.  The Air Force awarded him a Purple Heart and several other medals in 1994, and with it, Perelman got more than $180,000 in disability benefits, and sported his medal proudly around veterans conventions.

Once the government caught wind of the fraud, Perelman was charged under the Stolen Valor Act.  He was found guilty in California and was sentenced to a year in prison. Although Perelman acknowledged that the law correctly applied to him, he appealed his conviction, arguing the Stolen Valor Act as a whole is too broad, and sweeps constitutionally-protected speech into its net.

About 60 people have been convicted under the Stolen Valor Act since the law was enacted in 2005, but many more people are believed to claim undeserved heroism.

"Oh god, it has skyrocketed," Don Shipley, a leading exposer of imposters, told ABC News. "I can't even keep up with the amount of fraudulent claims and phony SEALs. Guys who haven't ever considered doing this are coming out of the woodwork, and we're nailing them as fast as we can."

The First Amendment's protection of phony heroes makes murky doctrine.  The Ninth Circuit has held that people who simply brag about their medals are protected under the First Amendment because that is an act of pure speech, which gets a higher standard of protection.  The Tenth Circuit is now considering a similar case.

Wearing a phony medal puts the imposter into a different category, the Ninth Circuit held.  Citing the old draft card burning case of U.S. v. O'Brien, 391 U.S. 367 (1968), the Ninth Circuit said the government had the right to regulate expression if it could show that it furthers an important government interest, that the interest is unrelated to the expression, and that the restriction is no greater than what is required to achieve the government interest.

The government has the right to restrict people from wearing military uniforms, the court said, so the interest of preserving the government's interest in honoring heroism is important and passes the rest of those tests.

Perelman argued that the Stolen Valor Act would sweep into its net such innocent acts as a widow wearing her slain husband's medals to his funeral, a schoolchild wearing his father's medals to class, a hypothetical rock band named The Silver Medals wearing medals on stage, and other scenarios.

But the Ninth Circuit said the Stolen Valor Act was intended to prosecute people who were trying to commit fraud, knowingly trying to trick people into believing they were awarded the honors.  As such, the court ruled, the Stolen Valor Act is not overbroad, and Perelman should do his time in jail.

Timothy Cornell is Of Counsel at Perry, Krumsiek & Jack LLP in Boston.  Before he went to law school, he worked as a journalist at the Boston Herald, the Philadelphia Inquirer, and other papers.  He is also a referral attorney for the Electronic Frontier Foundation and a member lawyer in the Online Media Legal Network at the Berkman Center.

(Image of actual medals of honor attained by Australian soldiers at the Shrine of Remembrance in Melbourne courtesy of Flickr user Daniele Sartori licensed under a Creative Commons BY NC 2.0 license.)  


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