SAN FRANCISCO (CN) – After striking down the Stolen Valor Act as an unconstitutional restriction of free speech last year, the 9th Circuit revisited the law in a different case last week.
David Perelman admitted in August that he deceived the Air Force in 1994 to get a Purple Heart medal. Though Perelman told the Air Force then he had suffered a shrapnel wound during his brief tour in Vietnam as a cargo specialist, his injury actually came in 1991 from a self-inflicted gun shot.
Perelman reportedly served briefly as the Nevada commander of the Military Order of the Purple Heart.
Federal public defender Alina Shell, representing Perelman, asked the three-judge panel: “If a person can stand on the corner and falsely proclaim that they are the recipient of a Medal of Honor, why can’t a grieving mother wear a Purple Heart to her son’s funeral?”
“Is that what your guy is?” Judge Barry Silverman interjected.
“No, Your Honor,” Shell replied.
“Your guy is somebody who tried to get veterans’ benefits that he wasn’t entitled to,” Silverman said, in reference to Perelman’s other guilty plea last summer to the theft of government funds for receiving $180,000 in disability benefits from the Veteran’s Administration, where he also worked.
The federal court in Las Vegas accepted Perelman’s guilty pleas but allowed him to appeal.
Shell said Monday that Perelman’s case “was no different from Alvarez,” referring to the defendant in U.S. v. Alvarez, which the 9th Circuit decided in August 2010.
A three-judge panel wrote in that opinion that the Constitution protects “all speech, including false statements.”
When the full court denied an en banc hearing of the case in March 2011, Chief Judge Alex Kozinski issued a scathing opinion defending the panel’s reversal. “Saints may always tell the truth, but for mortals living means lying,” he wrote.
Criminalizing lies could implicate “the JDater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit,” he wrote. “Phrases such as ‘I’m working late tonight, hunny,’ ‘I got stuck in traffic’ and ‘I didn’t inhale’ could all be made into crimes.”
At a hearing for Perelman on Monday, his attorney said the act is unconstitutionally vague and overbroad, and that Perelman does not challenge the theft of benefits conviction.
The Stolen Valor Act, enacted in 2005, unconstitutionally “prohibits all conduct, all symbolic speech related to the use of the medals,” and is far more expansive than fraud laws, Shell said.
“When you look at counterfeiting, impersonation and anti-fraud statutes, there’s always a requirement that there is some harm to some individual,” Shell said. “There is not [such a requirement] here, therefore this statute is unconstitutionally overbroad.”
Judge Susan Graber asked Assistant U.S. Attorney Roger Yang whether a legal construction could limit the law to forbid wearing unearned medals as a means to deceive without sweeping in other speech like theatrical performances.
Yang said Graber’s construction was unnecessary, and that “the wearing component of the statute is simply the conduct that goes against the government interest and it’s limited to that.”
Graber asked: “Isn’t the wearing itself symbolic speech?”
Yang called the law “content-neutral” because it does not discriminate on the basis of speech. “It’s simply the wearing or display or actual use of that medal, uniform or badge,” he said
Yang added that Perelman’s facial challenge to the act should fail because the government has a compelling interest in preserving the integrity of the military medals, badges and uniforms it issues, and that medals are no different than uniforms.
Graber also asked Yang whether someone who had been legitimately awarded a military medal crossed a line by “wearing it and saying that ‘I earned this, but I think the government sucks, and I want you all to start a revolution.’ If it’s your medal, you can do that, right?”
“Certainly,” Yang replied.