Tuesday, August 28, 2012
The Ninth Circuit denied rehearing en banc and issued an amended opinion in United States v. Perleman today. The Ninth Circuit essentially reaffirmed its holding eleven months ago upholding the constitutionality of subsection(a) of the "Stolen Valor Act" applied to Perleman when he wore the Purple Heart, which he had actually been awarded by the US Air Force, but under a fraudulent claim. (Apparently Mr. Perleman shot himself in the thigh, but claimed it was a shrapnel injury from his service in Viet Nam 20 years earlier; he also collected disability benefits from the military).
As might be predictable, the amended opinion in Perleman applies the United States Supreme Court's June decision in United States v. Alvarez, rather than the Ninth Circuit opinion that the Court affirmed. In both the Ninth Circuit and United States Supreme Court opinion, subsection (b) of The Stolen Valor Act, 18 USC §704 was declared unconstitutional. But subsection (a) of the Stolen Valor Act was at issue in Perleman. The difference between the two subsections is twofold:
Subsection (b) criminalizes an act (the wearing of the medal) rather than "pure speech" and is thus subject to the lower standard afforded expressive conduct;
Subsection (b) contains a scienter requirement, not only in the wearing of the medal, but in an "intent to deceive."
Thus, Alvarez leaves untouched criminal sanctions for obtaining a military medal by fraudulent means. And as Congress attempts to amend subsection (b) to be more aligned with the constitutional subsection (a), it does make one wonder why Congress chose to enact the questionably constitutional subsection (b) as part of the Stolen Valor Act.