Free speech defense used in Stolen Valor case

The attorney for an Air Force veteran charged with illegally wearing a Purple Heart medal invoked a First Amendment defense Monday in the first known prosecution in Nevada under the Stolen Valor Act.

Assistant Federal Public Defender Rene Valladares argued that some charges against David M. Perelman should be dismissed because prosecutors cite a part of the act that restricts free speech.

"We are not taking on the constitutionality of the Stolen Valor Act" of 2005, Valladares said Monday during the first of two hearings in the case in U.S. District Court.

Perelman, 56, of Las Vegas is accused of wearing a Purple Heart in 2008 during a national convention of recipients of the medal in Las Vegas. He claimed he was wounded in combat in Vietnam when in fact he was wounded by a self-inflicted gunshot in 1991, according to the indictment.

The two-count indictment also accuses him of stealing about $180,000 in monthly disability benefits from the Department of Veterans Affairs from July 1995 until July 2009. Perelman is a former VA employee.

"Because of the Purple Heart, the VA presumed that his thigh injury was service related and awarded him benefits," according to the court papers filed by U.S. Attorney Daniel Bogden and Assistant U.S. Attorney Roger Yang. They opposed the motion to dismiss the Stolen Valor count.

They didn't charge Perelman with the part of the Stolen Valor Act that deals with making false claims about receiving valor medals even though their case seems to hinge on fraudulent special orders that were put in his file in 1993 awarding him a Purple Heart for wounds received in Vietnam in 1971.

"We bring charges which we believe are the most readily provable against a defendant," Bogden said in an e-mail Monday. The theft charge for stealing VA disability benefits carries up to 10 years in prison, he said, and a conviction on the misdemeanor of "unauthorized wearing of a military medal" could carry a fine and an additional year in prison.

The American Civil Liberties Union of Nevada weighed in as a friend of the court saying the part of the act that Perelman is charged under is overly broad and raises free speech questions.

"You can't pass a law that demands respect for symbols," ACLU attorney Allen Lichtenstein said. "No such law would pass constitutional muster."

U.S. Magistrate Judge Lawrence Leavitt said the purpose of the Stolen Valor Act "is to promote, preserve and protect the dignity of the medal." What's not allowed, he said, "is to pass oneself off as a decorated veteran worthy of a Purple Heart. ... You can't wear it unless you earned it. Period."

In the court papers, Bogden and Yang state Perelman arrived in Vietnam in August 1971 as an air cargo specialist and sought treatment a month later "claiming that he was having LSD flashbacks that could only be relieved by eating food."

Doctors diagnosed a personality disorder and restricted him from hazardous duty. In October 1971, after only seven months in the Air Force and less than three months in Vietnam, Perelman was given an administrative discharge.

"On May 3, 1991, Perelman began a campaign claiming that he was awarded the Air Force Cross and Purple Heart for his heroic actions on July 12, 1971, while in Vietnam," the prosecution's filing said. He claimed he was wounded by shrapnel and received second-degree burns but later admitted he shot himself in 1991.

Somehow, a special order for award of a Purple Heart medal to Perelman dated Sept. 1, 1993, "made its way into Perelman's record at the National Personnel Records Center," according to the prosecution's filing.

There are arguments in other jurisdictions that challenge the constitutionality of the Stolen Valor Act. Both Lichtenstein and Valladares argued that the wording in the act prohibits actors from wearing medals in theatrical productions and prevents anti-war protesters from wearing the medal, which makes their argument a battle over protected speech.

Yang disagreed, saying a reasonable person would not think an actor wearing a medal in a war movie was an actual recipient. As for war protesters wearing the medal to make a point, Yang said, "You can do whatever you want with the medal as long as you've earned it."

Lichtenstein also likened the wearing of such medals to cross burning. "It can be illegal if it's done for purposes of intimidation," he said. "But you can't ban cross burning at a Klan rally out in the woods where nobody is intimidated. It's offensive, but it isn't illegal."

Contact reporter Keith Rogers at krogers@reviewjournal.com or 702-383-0308. Contact reporter Doug McMurdo at dmcmurdo@reviewjournal.com or 702-380-8135.

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Comments

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1. patrick Mar. 2, 2010 | 12:55 p.m. Report Abuse

   been there:
   
   Two things;
   
   1. Fraudulent advertising requires that you have the intent to defraud, that someone was actually defrauded, and that there was some damage which resulted from the intentional act.
   
   Now, consider this, someone may actually "like" the looks of a certain metal, but has no intention that anyone else even look at it, that can't evince any intent to defraud.
   
   Moreover, lots of people may actually be "confused" or even "defrauded" into believing that a person wearing a metal actually "earned" that metal but there is no actual compensable damage that has been done.
   
   And, been there, what I said was mostly in response to people pointing to the Constitution and arguing that the 1st Amendment says "Congress shall make no law" as if no laws about what is said in this country can possibly be made; you pointed out why this is ridiculous.
   
   Miles:
   
   Everyone is entitled to an opinion, but consider that those who are in the best financial position to "speak" typically are the ones that have the most influence. Its my opinion, without regard to any Constitutional arguments which, in my humble opinion, are certainly overwhelmingly in support of my position, that having people with the most money have the most impact will be detrimental to this country up to and including abrogating what we know call the Constitution.
   
   And, Miles, McCain-Feingold didn't prohibit anyone from saying anything, it merely did what laws in the country have done throughout our history; set time place and manner restrictions on free speech rights (even though in this case it had to do with the non-Constitutionally recognized "rights" of a corporation)

2. Miles Monroe Mar. 2, 2010 | 12:23 p.m. Report Abuse

   patrick my worthy liberal foe. I can't agree with your analysis of the McCain-Feingold case. If I have a choice between being able to listen to more viewpoints on an issue as opposed to less (e.g. restricted speech) I'd prefer to hear the former. It's more in line with the original intent of our Republic.

3. gehrig Mar. 2, 2010 | 11:44 a.m. Report Abuse

   riff raff like this are stealing funds needed by legit, wounded vets.
   
   this waste of skin needs 20 years at hard labor. no work, no eat. and absolutely zero health freebies.

4. patrick Mar. 2, 2010 | 10:11 a.m. Report Abuse

   oops.
   
   My bad.

5. breaking news Mar. 2, 2010 | 9:57 a.m. Report Abuse

   Oh and patrick, this is a Federal case, the Stolen Valor Law is not a "creation of Nevada"....

6. patrick Mar. 2, 2010 | 8:27 a.m. Report Abuse

   I definitely understand the anger from soldiers who served, and were wounded. I know how seriously they must view another soldier trying to claim some undeserved glory, and benefit by stealing what is obviously not his; God bless 'em.
   
   HOWEVER, my guess is that many of those soldiers and others, were just a few weeks ago among those who supported the "free speech rights" of corporations by asserting that the First Amendment says simply that "Congress shall make no law". Repeatedly, and obnoxiously, some people claimed that the words were so simple that a child could understand them, and that the words meant what the words said "Congress shall make no law".
   
   Now, as we all know, the stolen valor law was a creation of Nevada, but given that the 1st Amendment has been made equally applicable to the states, the Constitution effectively reads that "Congress (or the states) shall make no law..."
   
   This stolen valor law is thus clearly unconstitutional since there are elements of expression in the wearing of a metal. Every soldier understands this, they are proclaiming to the world that they have been injured in combat.
   
   "Congress (or the states) shall make no law..."
   
   If its good enough for corporations, its good enough for the rest of us.
   
   This law is plainly unconstitutional, and the fact that many will undoubtedly feel outraged, the law must go.