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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLANDUNITED STATES OF AMERICA **** Case No. 11-173Mv. *****AARON LAWLESS ***Defendant **************MEMORANDUM OPINION AND ORDER OF COURT
This matter is before the Court on Defendant’s Motion to Dismiss on Grounds that theStolen Valor Act is Unconstitutional (the “Motion”) and the Government’s opposition thereto.Defendant is charged in a one count Criminal Complaint with violating the Stolen Valor Act, 18U.S.C. §704 (the “Act”). Defendant argues that the Act is unconstitutional on First Amendmentgrounds, both facially and as applied to him.
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The Government responds that the speechproscribed by the Act is not protected by the First Amendment and may properly be restricted.For the reasons below, the Court finds that the Act is unconstitutional as a content-basedrestriction on First Amendment speech that is not narrowly tailored to serve a compellinggovernment interest. The Motion is, therefore, granted.
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The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibitingthe free exercise thereof;
or abridging the freedom of speech
, or of the press; or the right of the people peaceablyto assemble, and to petition the government for a redress of grievances.” (emphasis added)
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Only three courts have addressed the constitutionality of the section of the Act at issue here. The Act was declaredunconstitutional by the Ninth Circuit Court of Appeals in
United States v. Alvarez
, 617 F.3d 1198 (9
th
Cir. 2010) andby the U.S. District Court for the District of Colorado in
United States v. Strandlof
, 746 F.Supp.2d 1183 (D. Colo.
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 1 of 9
2The following material facts are alleged in the Criminal Complaint. Defendant was amember of the United States military, serving in both the Army and the Marines. During histime in the service, Defendant served a tour of duty in Iraq. In July, 2006, Defendant wasmedically evacuated from Iraq after complaining of headaches and memory loss. He waseventually transported to Walter Reed Hospital where he was treated for a pre-existing brainlesion. He remained at Walter Reed until his release from the military in August, 2008. Whilehe was recovering at Walter Reed, Defendant obtained a part-time job at Atlantic Guns, aFederally Licensed Firearms Dealer in Silver Spring, Maryland. During his employment withAtlantic Guns, Defendant made verbal claims to other employees that he had been awarded aSilver Star, four Purple Hearts, and two Bronze Stars with “V” devices during his militaryservice for combat related injuries and acts of heroism. Defendant also made theserepresentations to a representative of Glock, Inc., a firearms manufacturer. Based on theserepresentations, the representative from Glock determined that Defendant would be a goodcandidate for the annual Glock Hero Award. This award is given annually by Glock to a soldieror law enforcement officer who has demonstrated great courage and actions in their duties. Atthe request of the Glock representative, Defendant memorialized his claims in a writtendocument which was forwarded to Glock. On the basis of the representations Defendant hadmade regarding his military honors, he was named the recipient of the 2008 Glock Hero Award.A ceremony was held at Atlantic Guns in March, 2008, honoring Defendant. As part of theevent, Glock provided marketing aids, including a large poster board in front of which Glock representatives and Defendant posed during the event. The poster board consisted of a photo of Defendant, the vice president of Glock, an actor and former Marine, and the Silver Star, four
2010). Its constitutionality was upheld by the U.S. District Court for the Western District of Virginia in
United States v. Robbins
, 759 F.Supp.2d 815 (W.D. Va. 2011)
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 2 of 9
3Purple Hearts and two Bronze Stars. As a result of winning the award, Glock flew Defendantand his wife to Las Vegas, Nevada to attend the 2008 Shot Show, where Defendant wasintroduced in front of hundreds of people as the 2008 Glock Hero Award recipient. In additionto paying for the airfare and lodging for Defendant and his wife, Glock gave Defendant a trophyand two Glock Semi-automatic pistols. In all, Defendant and his wife received approximately$3500 in benefits for winning the award. Sometime thereafter it was discovered thatDefendant’s representations were completely false. Although he did serve in the military,including a tour of duty in Iraq, he was never injured in combat, was never recognized for acts of heroism and was never awarded a Silver Star, a Purple Heart, or a Bronze Star.Defendant is charged with violating subsection (b) of the Act which provides that[w]hoever falsely represents himself or herself, verbally or in writing, tohave been awarded any decoration or medal authorized by Congress for theArmed Forces of the United States, any of the service medals or badgesawarded to the members of such forces, the ribbon, button, or rosette of anysuch badge, decoration, or medal, or any colorable imitation of such item shallbe fined under this title, imprisoned not more than six months, or both.18 U.S.C. §704(b). The penalty is enhanced to one year in prison if the decoration involved isthe Congressional Medal of Honor, a distinguished-service cross, a Navy cross, an Air Forcecross, a silver star, or a Purple Heart. 18 U.S.C. §704(c) (d). If convicted, Defendant would beeligible for the enhanced penalty.The Act is clearly a content-based regulation of speech. It regulates words about aspecific subject: military honors. Content-based restrictions on speech are ordinarily subjectedto the strict scrutiny standard of review.
See United States v. Playboy Entm’t Group, Inc.,
529U.S. 808, 813 (2000);
Alvarez,
617 F.3d at 1202
.
The Supreme Court, however, has recognizedexceptions to this general rule for “certain well-defined and narrowly limited classes of speech,the prevention and punishment of which has never been thought to raise any Constitutional
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 3 of 9
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