United States v. Strandlof:
Testing the Constitutionality of the Stolen Valor Act
Introduction:
This lesson provides students an opportunity to take part in a moot court on a case involving a current
First Amendment issue—whether the Stolen Valor Act, which makes falsely claiming to have won a
military medal a crime, violates the First Amendment right to free speech. A moot court is a simulated
appellate proceeding and thus offers an opportunity for students to think about constitutional issues.
Objectives: At the end of this lesson, students will be able to:
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Explain the facts of the case of United States v. Strandlof.
Evaluate arguments on both sides of the case.
Form and defend a position regarding the case.
Materials and Preparation:
You will need copies of Handout 1 for all students and enough copies of Handouts 2-4 for one-third
of the class to have each. Students should have some familiarity with the First Amendment guarantee of
free speech before taking part in this lesson. Because this moot court involves a hearing in the U.S. Court
of Appeals (Tenth Circuit), where cases are generally heard by three-judge panels, you may want to have
multiple moot courts occurring concurrently—each court could be conducted by three judges and four to
six attorneys (two or three for each side). This would allow all students to take an active role in the moot
court, but would also be more difficult to facilitate. You will need to decide how you will approach the
moot court before you begin the lesson.
Procedure:
1. Tell students they are going to have the opportunity to consider whether a government action is
unconstitutional by taking part in a moot court. A moot court is a simulated appellate proceeding; that
is, it is a role-played hearing before an appeals court that is considering legal and constitutional issues
rather than issues of fact and guilt/innocence. The case they are going to examine deals with the free
speech.
2. Take a quick poll of the class. Ask: Do you think lies should be protected by the First Amendment?
Write the results of the poll on the board and save them to see if the class changes its mind afterward.
You may want to press them by asking if it would change their mind if the liar benefited from their
lies or if someone else was harmed by the lies.
3. Distribute Handout 1, “United States v. Strandlof: Testing the Constitutionality of the Stolen
Valor Act,” which describes the case, and go over it with students. Tell students that they will be
enacting a hearing in the case in the United States Tenth Circuit Court of Appeals. Read the following
directions aloud to the class:
When a U.S. Court of Appeals hears an appeal, they usually work in a three-person panel. The panel
gives each team of attorneys a chance to present its position. The appellants (also called the
petitioners), who are appealing the lower court decision, present their case first. In this case, the
appellant or petitioner is the U.S. government. The other side is called the appellee (or the
respondent). Rick Strandlof is the appellee or respondent in this case. While the attorneys are making
their presentations, the judges can interrupt to ask questions.
4. Divide the class into three groups—the attorneys for the appellants/petitioners (U.S. government),
attorneys for the appellees/respondents (Strandlof), and the judges of the Court of Appeals. Give the
groups the Handouts appropriate for their positions.
5. If you plan to have just one moot court, have the groups choose the students who will act as judges
and make the arguments for each side. When these decisions have been made, you may want to assign
students who do not have active roles to be reporters. If you are planning to have several moot courts
occurring at once, you will need to assign students from each group—appellant’s attorneys, appellee’s
attorneys, and judges—to each court. Set up an area for each court as shown below:
JUDGES
APPELLEE
(Attorneys for
Strandlof)
APPELLANT
(Attorneys for the
U.S. government)
6. Review the steps to be followed. Conduct the moot court(s). Ask the judges to deliberate in front of
the class or the attorneys who argued in their court (explain that this would not happen in the real
court). Class members should note which arguments seemed to be most persuasive based on the
judges’ comments.
7. Discuss the outcome with the class, using the following questions:
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Did each person play his or her part well?
What arguments did the appellant present?
What arguments did the appellee present?
What arguments were not presented at all?
What questions asked by the judges clarified the issues in the case? Which questions confused the
issue or seemed unproductive?
Which arguments seemed to influence the judges most?
What was the decision? Do you think it was a good decision?
What did you learn about the First Amendment? What did you learn about how the Courts of
Appeals work?
Has your thinking changed about whether lies should be protected by the First Amendment? Why
or why not?
CELD gratefully acknowledges the assistance of Dean Sanderford and Barbara Costa, Attorneys, Federal
Public Defenders Office, Districts of Colorado and Wyoming.
Handout #1
United States v. Strandlof:
Case Background
Stolen Valor Act, 18 U.S.C. § 704(b): False claims about receipt of military decorations or
medals.
Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any
decoration or medal authorized by Congress for the Armed Forces of the United States, any of
the service medals or badges awarded to the members of such forces, the ribbon, button, or
rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall
be fined under this title, imprisoned not more than six months, or both.
Question Before the Court
Does the Stolen Valor Act, which makes falsely claiming to have won a military
medal a crime, violate the First Amendment right to free speech?
Facts of the Case
These are the facts alleged by the government; for the purposes of this exercise, they are assumed to be
true. The defendant, Rick Strandlof, has not admitted to any of them.
In fall 2006, Rick Strandlof began volunteering as an advocate on behalf of disabled and homeless
veterans in Colorado. In connection with his volunteer work, he claimed that he was “Captain Rick
Duncan,” a medically retired Marine Corps veteran of the Iraq War. His volunteer work included
campaigning for retired Air Force lieutenant colonel Hal Bidlack’s run for Congress and pressuring the
city of Denver to stop city-wide sweeps that were negatively impacting homeless veterans. He was also a
founding member of the Colorado Veterans’ Alliance (CVA), a state-wide veterans’ advocacy group. As
part of his duties with the CVA, he organized events to solicit donations for veterans.
At various events, “Captain Rick Duncan” gave moving speeches claiming that he was a Naval Academy
graduate who had suffered a serious brain injury from an improvised explosive device attack during
combat in Fallujah. He told his colleagues on multiple occasions that he had been awarded both Purple
Heart and Silver Star medals for his service and the injuries he had sustained. Mr. Strandlof also made
some of these claims in speeches that he posted on the YouTube website.
In April 2009, “Captain Rick Duncan” agreed to wear his medals during a Colorado event for veterans.
When he attended the event without his medals, his colleagues at the CVA became suspicious and began
digging into his background. They soon discovered that “Captain Rick Duncan” did not exist and that Mr.
Strandlof’s claims were false. He had never served in the military.
In May 2009, the CVA’s board members contacted the FBI, telling them about Mr. Strandlof’s false
claims. Days later, Mr. Strandlof admitted to the FBI that he had fabricated his “Captain Rick Duncan”
persona. He also admitted misrepresenting himself as a wounded veteran. The Colorado and national
press, including CNN, eventually broke the story. In his interviews with various media outlets, Mr.
Strandlof admitted to his lies and apologized for his conduct.
On November 16, 2009, the United States charged Mr. Strandlof with five counts of knowingly making
false representations of himself as a recipient of the Purple Heart and Silver Star medals in violation of
the Stolen Valor Act, 18 U.S.C. § 704(b). The government did not, however, allege that Mr. Strandlof
personally benefitted either financially or professionally from his lies. Also, Mr. Strandlof’s false claims
to have served in Iraq and to have graduated from the Naval Academy did not violate any laws.
On December 2, 2009, Mr. Strandlof moved the trial court to dismiss the charges against him on the
grounds that the Stolen Valor Act violated his First Amendment right to free speech. In response, the
government claimed that false statements of fact were excluded from First Amendment protection. The
federal district court ruled in Mr. Strandlof’s favor, rejecting the government’s claim.
The United States appealed the federal district court’s decision. Mr. Strandlof’s case is currently pending
before the United States Tenth Circuit Court of Appeals.
Like the federal district court in Mr. Strandlof’s case, the Ninth Circuit Court of Appeals has recently
invalidated the Stolen Valor Act on similar grounds in United States v. Alvarez.
Handout #2
United States v. Strandlof: Government’s Arguments
Use the information below to prepare your argument before the Court of Appeals. As the appellant
(petitioner), you will present your arguments first.
The Supreme Court has said in Gertz v. Welch (1974) and a number of other cases that false statements of
fact have no constitutional value. These pronouncements mean that false statements of fact – including
false claims to military medals – are wholly unprotected by the First Amendment. Because these
pronouncements were made by the Supreme Court, they are binding on all lower courts.
The Supreme Court has never ruled that the government can outlaw only harmful speech. The First
Amendment is about ensuring robust political debate by preventing the government from censoring
speech on matters of public concern, matters such as politics, education, the environment, the economy,
etc. Lies contribute nothing to public debate. Generally speaking, there is no reason grounded in the First
Amendment for protecting lies.
That said, it is probably necessary to protect some lies from government censorship in order to ensure
free-flowing debate on important issues. For example, careless but unintentional lies about politicians
deserve protection; otherwise, people may refrain from criticizing politicians for fear they may
accidentally say something untrue that could get them in trouble. Protecting false claims to military
medals would not serve this purpose. People know whether they have won medals or not. Making it a
crime to lie about the medals will not dissuade people from expressing their views on important matters.
Lies about having received military medals damage the medals’ meaning and reputation. If enough
people tell these lies, the public will begin to doubt even true claims to the medals. And if the
government does nothing to stop imposters, the public may think the government is not grateful for the
sacrifices of those who actually earned the medals. Also, the medals provide an important incentive for
valor on the battlefield, and soldiers may perform less valiantly if the value of the medals is cheapened by
lies.
People who falsely claim to have won military medals often reap benefits. They may land jobs they
otherwise wouldn’t be able to get, or fraudulently receive veterans’ benefits. They also wrongly receive
respect and admiration they do not deserve. The government has a strong interest in preventing this form
of speech.
Handout #3
United States v. Strandlof: Strandlof’s Arguments
Use the information below to prepare your argument before the Court of Appeals. As the appellee
(respondent), you will present your arguments second.
The government relies on opinions in such Supreme Court cases as Gertz v. Welch (1974), which said that
false statements of fact have no constitutional value. Those statements, however, must be read in context.
Importantly, the Supreme Court has long recognized that defamation is a category of unprotected speech,
and it often shows up on the Supreme Court’s lists of unprotected categories. But a broad category of
false statements of fact has appeared on none of the lists. Plus, in United States v. Stevens (2010), the
Supreme Court held that all of the categories of unprotected speech are “narrowly drawn” and have “deep
historical roots.” False statements of fact fit neither of these criteria. The category is broad,
encompassing all knowing lies, and unlike laws restricting defamation, laws targeting other lies have no
long history.
The Supreme Court has upheld restrictions on pure speech only where the speech causes concrete,
particularized harm. As cases striking down bans on flag burning and depictions of animal cruelty show,
the mere fact that speech is offensive is not a good enough reason for the government to suppress it.
Why? Because the First Amendment is not just about leaving breathing space for public debate. It is also
about preventing the government from encroaching on our personal autonomy, which is defined in large
part by how we express ourselves.
If the government can criminalize non-harmful speech, what is to stop it from making lying about your
weight on Match.com a crime? Or telling your child that Santa Claus is real? To some extent, living
means lying. For example, we lie to protect our privacy (“No, I don’t live around here”) and to make
others feel better (“That shirt looks great on you”). Plastic surgery and the cosmetics industry are
basically about helping us deceive each other about how we really look. Under the government’s rule,
any of this could be criminalized.
As the flag-burning case (Texas v. Johnson, 1989) shows, harm to an important government symbol is
never enough to justify a ban on speech. Rather, there needs to be specific harm to a person (for example,
lies that damage a person’s reputation) or to a government’s ability to function (for example, lies told
under oath in court). Plus, the government has not produced any evidence to show that the harms it
identified actually occurred. To justify a restriction on speech, the government must be able to show that
the harms it is seeking to prevent are substantial and real.
The government’s interest in preventing people from wrongly receiving intangible benefits like respect is
not strong enough to justify a ban on speech. The government can prohibit lies that wrongfully result in
material benefits (for example, money or property) for the speaker. But the Stolen Valor Act doesn’t
require that the speaker get any material benefit in order for the false claim of winning a medal to be a
crime. In fact, the government has never claimed that Strandlof ever benefitted financially from his lies.
Handout #4
Judges’ Instructions
Question Before the Court:
Does the Stolen Valor Act, which makes falsely claiming to have won a military medal a crime,
violate the First Amendment right to free speech?
A persuasive legal argument usually has two components:
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The advocate must convincingly argue that the law requires a ruling in his favor. With respect to
constitutional issues like this one, that usually means arguing that the Supreme Court’s decisions
dictate the result the advocate wants.
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Because judges are human like the rest of us, the advocate must convince the court that the result
he or she wants is the just and fair one.
In this case, the arguments based on justice center on two questions:
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To prove that speech should be wholly unprotected, should the government be required to show
that the speech causes serious harm?
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Do false claims to military medals cause serious harm?
Directions:
The appellant (petitioners) will make its arguments first, followed by the appellee (respondent). You may
ask questions of the attorneys. Use your preparation time to review the facts of the case and think of
questions you might ask. Then make notes below during the hearing.
_____________________________________________________________________
Best Arguments for the Appellant (United States):
Best Arguments for the Appellee (Strandlof):
Your Decision and Reasoning: