(CN) – With the Supreme Court set to determine the constitutionality of the Stolen Valor Act, which criminalizes lies about military honors, the 10th Circuit said that such lies are not protected by the First Amendment.
The 43-page majority decision reverses the finding of a federal judge in Colorado. It also creates a split circuit since a federal appeals panel in Pasadena, Calif., said that the U.S. Constitution protects “all speech, including false statements.”
In July 2010, as the 9th Circuit was primed to strike down part of the Stolen Valor Act as unconstitutional, U.S. District Judge Robert Blackburn in Denver reached the same conclusion and dismissed a pending criminal indictment.
Rick Strandlof had been charged with violating the act for misrepresenting himself as an Iraqi War veteran with a Purple Heart and a Silver Star.
Posing as Rick Duncan, Strandlof also founded the Colorado Veterans Alliance.
Last week, a three-judge appellate panel said the charges should stand because the Stolen Valor Act is sound.
“Utterances criminalized by the Act are objective and verifiable, and they are particularly valueless under First Amendment principles,” Judge Timothy Tymkovich wrote for the majority. “Although military affairs are undoubtedly matters of public importance, lying about receiving military medals does nothing to contribute to any conceivable public debate. The Stolen Valor Act simply does not punish political speech, factually correct statements, artistic expressions, or opinions of any sort.”
“A person is extraordinarily unlikely to mistakenly claim to have been awarded a military medal, and the accuracy of statements regarding military awards is objectively verifiable,” according to the opinion, which Judge Bobby Baldock joined.
The panel held that lying about being a decorated veteran diminishes the value of military awards and the safeguarded military honors system.
Judge Jerome Holmes disagreed, however, that such lies can be criminalized.
“I feel obliged to confront the majority’s attempt to narrow the scope of the Stolen Valor Act under the banner of constitutional avoidance,” Holmes’ 63-page dissent states.
“Because Congress knows how to impose an intent requirement when it wants to, the majority’s grafting of an intent-to-deceive element onto the Stolen Valor Act must be viewed as an exercise in revision, not interpretation,” he added.
“I conclude that the Stolen Valor Act criminalizes protected speech and, because it is content-based, it is subject to strict scrutiny.”
The U.S. Supreme Court is set to rule on the California case in February. Though the underlying case found fault with criminalizing lies, a different 9th Circuit panel later upheld another provision against dishonest actions. That case concerned the conviction of a man who wore a fraudulently obtained Purple Heart and received $180,000 in disability benefits.