At War: Courts Weigh Efforts to Guard Valor and Speech

At what point does a lie become a crime?

Every day, countless people tell co-workers, spouses or friends untruths about any number of things ranging from the mundane to the important: whether the dishes are done, the points scored in a pickup basketball game, fidelity.

But when it comes to lying about a being a war hero, the current law is clear. You can’t do it.

A federal law passed in 2006 called the Stolen Valor Act makes it a crime to falsely claim to be a decorated service member or veteran. Anyone who violates the law can face up to a year in prison, fines and community service.

According to Doug Sterner, a Vietnam veteran who has spent years tracking down those who make such claims and who helped draft the law, thousands of Americans lie each year about being war heroes. Most are never prosecuted.

All of this helped lead to the passage of the Stolen Valor Act, created to broaden an existing law that made it illegal to wear war medals if you’d never earned them. Stolen Valor also made it illegal to falsely claim to be a decorated veteran either verbally or in writing — which happens frequently, Mr. Sterner says.

Over the past few years, though, the constitutionality of the Stolen Valor Act has been challenged several times. And now, a federal appeals court in Denver is weighing that very question in the case of Richard G. Strandlof, a mentally troubled drifter who lied about having served in the military.

In 2009, Mr. Strandlof, using the alias Rick Duncan, conned other Colorado veterans into believing that he was a Marine who had been wounded in Iraq and earned a Silver Star. His account was so compelling and convincing that he was able to start a local veterans group, speak out for homeless vets and become a respected voice of the veterans’ movement in the Denver area. Yet he never served a day in the military.

After other veterans began suspecting something was amiss, Mr. Strandlof was arrested by the F.B.I. and charged with violating the Stolen Valor Act.

Though he admitted his ruse, Mr. Strandlof has aggressively fought the case against him. His lawyers — federal public defenders — have argued that the law violates his right to free speech and that simply telling a lie doesn’t always mean you’ve committed a crime.

Last July, a judge agreed and dismissed the case against Mr. Strandlof on the grounds that it violated the First Amendment.

But federal prosecutors appealed the ruling, arguing that lying about being a war hero should not qualify as protected free speech — much like fraud or perjury. Moreover, prosecutors have contended that telling these sorts of lies are harmful — to the military awards system and to the soldiers who truly earned them.

In many cases, the lies told about military heroism usually lead directly to monetary gain or enhanced status for those who tell them, said Mr. Sterner, who is in the process of compiling a Web database for the Military Times of those people who did actually receive military awards.

“Stolen Valor in and of itself is fraud,” he said. “In almost every case I have seen to date, there is associated fraud, whether that’s monetary value or other things of value the perpetrator has obtained for himself.”

Mr. Strandlof’s federal public defender, John T. Carlson, sees things differently. In an e-mail response to questions about the case, he wrote that Stolen Valor was unconstitutional because, among other things, “The speech it targets — whether characterized broadly as ‘false statements’ or more narrowly as lies about military medals — does not fall into any of the well defined categories of false statements historically excluded from the protection of the First Amendment, categories such as defamation, fraud, perjury and false declarations to government agencies.”

Mr. Carlson added that if the law were to be upheld, it would call into question the legality of everyday lies — big and small — that are commonplace in society.

The United States Court of Appeals for the 10th Circuit heard oral arguments on the case last week and is likely to issue a ruling in the coming months.

Those watching Mr. Strandlof’s case believe the Supreme Court will eventually weigh in to help clarify divergent rulings on the law.

Last year, the United States Court of Appeals for the Ninth Circuit found the law unconstitutional in the case of Xavier Alvarez, a former board member for a municipal water district near Los Angeles, who boasted about being wounded in combat and claimed he received the Medal of Honor (he also claimed to have played for the Detroit Red Wings). Mr. Alvarez never served in the military.

In 2008, Mr. Alvarez pleaded guilty to violating the act on the condition he could appeal. But the appellate court reversed his conviction, finding in a 2-to-1 decision that the lies covered under the Stolen Valor Act were too broad.

The federal judge who wrote the opinion in the case, Milan D. Smith, Jr., mirrored Mr. Carlson’s point. According to Judge Smith, upholding Stolen Valor could criminalize garden variety deceptions. Lying about how much money you have, whether you’re a virgin or whether you smoke or drink were all examples Judge Smith used.

“The sad fact is, most people lie about some aspects of their lives from time to time,” he wrote.

Earlier this year, though, a federal judge in Virginia disagreed with the decision of the Ninth Circuit court in the case of Ronnie Robbins, a former revenue commissioner of Dickenson County. Mr. Robbins had claimed while campaigning that he was a decorated Vietnam veteran, but in reality he never deployed overseas while in the Army.

The judge, James P. Jones, found that false speech covered by Stolen Valor was not protected by the First Amendment, and that it was pretty unlikely that the federal government would suddenly start interfering with everyday fibs.

In March, a jury found Mr. Robbins guilty, and he’s scheduled for sentencing in July.

All of this is happening as a revised Stolen Valor Act, sponsored by Representative Joe Heck, Republican of Nevada, is drawing attention. Mr. Heck’s bill tries to put to rest free speech challenges to Stolen Valor by making it a fraud to benefit, or intend to benefit, from lying about being a military hero.

“The Ninth Circuit ruling found that you basically have a First Amendment right to lie,” he said in a recent interview. “The purpose of this legislation is to close the loophole by saying that if you misrepresent your military service and any awards in order to gain something of value, you’ve committed an act of fraud. So it’s not just a simple First Amendment issue.”

Meanwhile, in light of the recent raid that killed Osama bin Laden, Mr. Sterner says he’s already noticed a surge in a new group of people claiming to be decorated war heroes: fake Navy Seals.

View the original article here

Battle Over Health Care Law Shifts to Federal Appellate Courts

At Tuesday’s hearing, the United States Court of Appeals for the Fourth Circuit will consider a pair of contradictory rulings sent up from the lower courts. In one case, filed by Virginia’s attorney general, a federal district judge in Richmond ruled late last year that Congress had exceeded its authority by requiring most Americans to obtain health insurance. In the other, filed by Liberty University, a conservative Christian institution, a district judge sitting 100 miles away in Lynchburg, Va., upheld the insurance mandate.

If the appellate courts act quickly, the question of the health law’s constitutionality could land before the Supreme Court as soon as the next term, which opens in October.

With the lower courts divided, each side hopes to build a string of victories in the midlevel Courts of Appeals.

“We want to win as many of these as we can,” said Attorney General Kenneth T. Cuccinelli II of Virginia, a Republican. “If we have nothing but wins all the way up to the Supreme Court, there is an element of momentum, I think, where the justices consider what has gone on before the case came to them.”

Since the enactment of the Affordable Care Act in March 2010, 31 lawsuits have been filed to challenge it, according to the Justice Department, which is defending the Obama administration. Nine are awaiting action by Courts of Appeals, and nine are pending in federal district courts. The others have been dismissed.

Three district judges appointed by Democratic presidents have upheld the law while two Republican appointees have struck down part or all of it.

On June 1, the Court of Appeals for the Sixth Circuit in Cincinnati is scheduled to hear the appeal of a ruling in favor of the law. On June 8, the Court of Appeals for the 11th Circuit in Atlanta will review a Florida judge’s ruling that invalidated the entire act. That judge later suspended his own order until higher courts could settle the matter.

The Supreme Court recently turned down a request by Mr. Cuccinelli that it hear the case without review by the Court of Appeals.

In Tuesday’s hearing, a three-judge panel will first hear arguments in the case filed by Liberty University and then in the one filed by Mr. Cuccinelli. The makeup of the randomly selected panel will not be revealed until Tuesday morning.

With the addition of four appointees by President Obama, the Fourth Circuit bench now includes seven members named by Democratic presidents and seven named by Republicans. The loser before the three-judge panel may petition for a hearing before the entire court before taking the case to the Supreme Court.

The Obama administration will be represented in each of the appellate cases by Neal K. Katyal, the acting solicitor general.

Solicitors general more typically argue for the federal government before the Supreme Court. Although it is not unprecedented for them to appear before Courts of Appeals, Mr. Katyal’s assignment is seen as a nod to the significance of the case.

E. Duncan Getchell Jr., Virginia’s solicitor general, will speak for the commonwealth, as he did in the district court, and Liberty University will be represented by Mathew D. Staver, the dean of its law school.

The plaintiffs in the 11th Circuit case, including Republican officials from 26 states, will be represented by Paul D. Clement, a United States solicitor general under President George W. Bush. Mr. Clement recently resigned from King & Spalding after it withdrew its support for his defense of a federal law banning recognition of same-sex marriages.

Scores of politicians, economists and interest groups have filed friend-of-the-court briefs on both sides of the health care litigation.

The Virginia and Liberty University cases bear some differences. But both challenge the insurance requirement on the ground that it cannot be supported by the commerce clause of the United States Constitution, which gives Congress broad but not unlimited authority to regulate interstate commerce. Starting in 2014, the health care law would require most Americans to obtain policies or pay an income tax penalty.

The plaintiffs complain that the government has never before forced citizens to buy a commercial product. In the lower courts, arguments have centered on whether a choice to not buy insurance constitutes the kind of economic “activity” that the Supreme Court has, in the past, found subject to federal regulation.

The judges are also being asked to determine whether Virginia has legal standing to challenge the law, whether the insurance requirement can be supported under Congress’s authority to tax, whether it runs afoul of religious liberties, whether employers can be required to contribute to their workers’ health coverage, and whether a finding against one provision of the law should invalidate the entire act.

 

Battle Over Health Care Law Shifts to Federal Appellate Courts

 

At Tuesday’s hearing, the United States Court of Appeals for the Fourth Circuit will consider a pair of contradictory rulings sent up from the lower courts. In one case, filed by Virginia’s attorney general, a federal district judge in Richmond ruled late last year that Congress had exceeded its authority by requiring most Americans to obtain health insurance. In the other, filed by Liberty University, a conservative Christian institution, a district judge sitting 100 miles away in Lynchburg, Va., upheld the insurance mandate.

If the appellate courts act quickly, the question of the health law’s constitutionality could land before the Supreme Court as soon as the next term, which opens in October.

With the lower courts divided, each side hopes to build a string of victories in the midlevel Courts of Appeals.

“We want to win as many of these as we can,” said Attorney General Kenneth T. Cuccinelli II of Virginia, a Republican. “If we have nothing but wins all the way up to the Supreme Court, there is an element of momentum, I think, where the justices consider what has gone on before the case came to them.”

Since the enactment of the Affordable Care Act in March 2010, 31 lawsuits have been filed to challenge it, according to the Justice Department, which is defending the Obama administration. Nine are awaiting action by Courts of Appeals, and nine are pending in federal district courts. The others have been dismissed.

Three district judges appointed by Democratic presidents have upheld the law while two Republican appointees have struck down part or all of it.

On June 1, the Court of Appeals for the Sixth Circuit in Cincinnati is scheduled to hear the appeal of a ruling in favor of the law. On June 8, the Court of Appeals for the 11th Circuit in Atlanta will review a Florida judge’s ruling that invalidated the entire act. That judge later suspended his own order until higher courts could settle the matter.

The Supreme Court recently turned down a request by Mr. Cuccinelli that it hear the case without review by the Court of Appeals.

In Tuesday’s hearing, a three-judge panel will first hear arguments in the case filed by Liberty University and then in the one filed by Mr. Cuccinelli. The makeup of the randomly selected panel will not be revealed until Tuesday morning.

With the addition of four appointees by President Obama, the Fourth Circuit bench now includes seven members named by Democratic presidents and seven named by Republicans. The loser before the three-judge panel may petition for a hearing before the entire court before taking the case to the Supreme Court.

The Obama administration will be represented in each of the appellate cases by Neal K. Katyal, the acting solicitor general.

Solicitors general more typically argue for the federal government before the Supreme Court. Although it is not unprecedented for them to appear before Courts of Appeals, Mr. Katyal’s assignment is seen as a nod to the significance of the case.

E. Duncan Getchell Jr., Virginia’s solicitor general, will speak for the commonwealth, as he did in the district court, and Liberty University will be represented by Mathew D. Staver, the dean of its law school.

The plaintiffs in the 11th Circuit case, including Republican officials from 26 states, will be represented by Paul D. Clement, a United States solicitor general under President George W. Bush. Mr. Clement recently resigned from King & Spalding after it withdrew its support for his defense of a federal law banning recognition of same-sex marriages.

Scores of politicians, economists and interest groups have filed friend-of-the-court briefs on both sides of the health care litigation.

The Virginia and Liberty University cases bear some differences. But both challenge the insurance requirement on the ground that it cannot be supported by the commerce clause of the United States Constitution, which gives Congress broad but not unlimited authority to regulate interstate commerce. Starting in 2014, the health care law would require most Americans to obtain policies or pay an income tax penalty.

The plaintiffs complain that the government has never before forced citizens to buy a commercial product. In the lower courts, arguments have centered on whether a choice to not buy insurance constitutes the kind of economic “activity” that the Supreme Court has, in the past, found subject to federal regulation.

The judges are also being asked to determine whether Virginia has legal standing to challenge the law, whether the insurance requirement can be supported under Congress’s authority to tax, whether it runs afoul of religious liberties, whether employers can be required to contribute to their workers’ health coverage, and whether a finding against one provision of the law should invalidate the entire act.

 

Florida Puts Overhaul Of Courts to the Voters

The debate over the most sweeping judicial overhaul package in the country ended late Monday in a partial victory for Republicans and Speaker Dean Cannon, who had championed the changes.

The fight pitted Republicans calling for the broad changes against Democrats, lawyers and senior and retired judges, who called their efforts an attempt to politicize the bench by stripping the judiciary of its independence and giving the governor power to name judges.

In the end, there were not enough Republicans willing to split the Supreme Court into separate divisions for criminal and civil cases. The change would have given Gov. Rick Scott, a Republican, the power to appoint three new justices to hear appeals of civil cases.

Voting along party lines late Monday, the Senate instead approved a package of changes that increases the Legislature’s influence on the state court system.

The measure would give the House access to investigations of judges and allow the Legislature to repeal judicial procedural rules enacted by the Florida Supreme Court. Perhaps most important, the changes would allow the Senate to confirm the governor’s appointments of justices.

Critics said that all the changes, including the rejected Supreme Court provision, would have returned the state’s judiciary to the era of cronyism. A half-century ago, Florida’s judiciary was so riddled with old-school politics that a courthouse joke’s punch line packed the sting of truth: “What do you call a sitting judge? A friend of the governor.”

“Members, we’re going down a slippery slope,” Senator Christopher L. Smith, a Fort Lauderdale Democrat, said in Monday’s debate. “We’re going into the judicial branch.”

Five Republican senators, most of whom are also lawyers, agreed with opponents of the bill, which included former justices, senior judges and Bob Graham, a Democrat and former governor and United States senator.

Mike Haridopolos, the Senate president, told reporters he had failed to deliver enough Republican votes to get the 60 percent needed to pass the bill with the Supreme Court provision intact. “The person to blame is me,” he said.

Legislative tug-of-wars with the judiciary occur in some state houses every year. But the tussles are usually limited to a single, narrow issue. What has made Florida’s fight different is the breadth of the proposed changes.

The debate also came at a time when the court system, like Florida itself, is struggling with a financial crisis. Fewer lawsuits are being filed, which means a decline in filing fees, and that has left the courts with a $74 million shortfall. The resolutions in the Legislature guarantee full financing, but several senior judges said financial security for the courts in exchange for a less independent bench was a bad trade-off.

In the past month, the battle became intensely partisan and even personal. Republican legislators talked about the need to rein in the Supreme Court’s power. (Last year, the court tossed out three ballot initiatives championed by the Legislature, both houses of which are controlled by Republicans.)

“Our Supreme Court of Florida has failed us over and over,” Representative Charles E. Van Zant, Republican of Palatka, said last month on the House floor. “This Legislature will send a message that should be sent.”

Predictably, the fervor of the advocates for the changes alarmed some current and former judges, including Raoul G. Cantero, who had been appointed to the Supreme Court by Gov. Jeb Bush, a Republican.

“If I were on the court, I’d be very disturbed by what is going on in the Legislature,” said Mr. Cantero, who retired in 2008. “There is a strong antijudiciary feeling that I feel is very counterproductive.”

The proposals, which are amendments to the State Constitution, would then be decided by Florida voters next year. Sixty percent of state voters are needed for the amendments to be approved.

The bill was a priority of Speaker Cannon, Republican of Winter Park.

“Is the judiciary independent? Yes,” Mr. Cannon said in a recent interview. “Omnipotent? No. Florida went too far with power to the judiciary after the late ’60s and early ’70s, and all we are doing is trying to establish a more efficient judicial branch.”

Critics argued that Mr. Cannon was motivated in part by revenge against the Supreme Court for striking down the three ballot initiatives approved by the Legislature. The justices concluded that the ballot initiative about political redistricting was intended to mislead voters.

“That’s completely untrue,” Mr. Cannon said of the critics’ accusation. “People who live in the status quo fight against any change of the status quo. But that doesn’t mean these changes aren’t what’s best for the state of Florida.”

After the vote Monday night that stripped out the proposal to split the state’s highest court, Mr. Cannon remained upbeat. “It’s a win,” he told reporters. “It’s absolutely a win.”