This action might not be possible to undo. Are you sure you want to continue?
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
* * * * * * * * * * * * * *************
Case No. 11-173M
MEMORANDUM OPINION AND ORDER OF COURT This matter is before the Court on Defendant’s Motion to Dismiss on Grounds that the Stolen 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, 18 U.S.C. §704 (the “Act”). Defendant argues that the Act is unconstitutional on First Amendment grounds, both facially and as applied to him.1 The Government responds that the speech proscribed 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-based restriction on First Amendment speech that is not narrowly tailored to serve a compelling government interest. The Motion is, therefore, granted.2
The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” (emphasis added) Only three courts have addressed the constitutionality of the section of the Act at issue here. The Act was declared unconstitutional by the Ninth Circuit Court of Appeals in United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) and by 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 2 of 9
The following material facts are alleged in the Criminal Complaint. Defendant was a member of the United States military, serving in both the Army and the Marines. During his time in the service, Defendant served a tour of duty in Iraq. In July, 2006, Defendant was medically evacuated from Iraq after complaining of headaches and memory loss. He was eventually transported to Walter Reed Hospital where he was treated for a pre-existing brain lesion. He remained at Walter Reed until his release from the military in August, 2008. While he was recovering at Walter Reed, Defendant obtained a part-time job at Atlantic Guns, a Federally Licensed Firearms Dealer in Silver Spring, Maryland. During his employment with Atlantic Guns, Defendant made verbal claims to other employees that he had been awarded a Silver Star, four Purple Hearts, and two Bronze Stars with “V” devices during his military service for combat related injuries and acts of heroism. Defendant also made these representations to a representative of Glock, Inc., a firearms manufacturer. Based on these representations, the representative from Glock determined that Defendant would be a good candidate for the annual Glock Hero Award. This award is given annually by Glock to a soldier or law enforcement officer who has demonstrated great courage and actions in their duties. At the request of the Glock representative, Defendant memorialized his claims in a written document which was forwarded to Glock. On the basis of the representations Defendant had made 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 the event, 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 3 of 9
Purple Hearts and two Bronze Stars. As a result of winning the award, Glock flew Defendant and his wife to Las Vegas, Nevada to attend the 2008 Shot Show, where Defendant was introduced in front of hundreds of people as the 2008 Glock Hero Award recipient. In addition to paying for the airfare and lodging for Defendant and his wife, Glock gave Defendant a trophy and 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 that Defendant’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, 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. 18 U.S.C. §704(b). The penalty is enhanced to one year in prison if the decoration involved is the Congressional Medal of Honor, a distinguished-service cross, a Navy cross, an Air Force cross, a silver star, or a Purple Heart. 18 U.S.C. §704(c) (d). If convicted, Defendant would be eligible for the enhanced penalty. The Act is clearly a content-based regulation of speech. It regulates words about a specific subject: military honors. Content-based restrictions on speech are ordinarily subjected to the strict scrutiny standard of review. See United States v. Playboy Entm’t Group, Inc., 529 U.S. 808, 813 (2000); Alvarez, 617 F.3d at 1202. The Supreme Court, however, has recognized exceptions 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 3
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 4 of 9
problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942). In a recent case, the Supreme Court explained: From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” R.A.V. v. St. Paul, 505 U.S. 377, 382, 383 (1992). These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (KENNEDY, J., concurring in judgment)-including obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), defamation, Beauharnais v. Illinois, 343 U.S. 250, 254-255, 72 S.Ct. 725, 96 L.Ed. 919 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447-449, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) ( per curiam ), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949)-are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
United States v. Stevens, 559 U.S. ---, ---, 130 S. Ct. 1577, 1584 (2010) (emphasis added). The Supreme Court has not indicated that this list is exhaustive. The type of speech which the Act seeks to restrict – false statements about receiving military honors – does not clearly fall within any of these specifically enumerated categories.3 The Government takes the position that the speech targeted by the Act does fit into those “well-defined” and “narrowly limited” classes of speech which do not find protection under the First Amendment. Relying on the Supreme Court case of Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Government asserts that false statements of fact are not protected by the First Amendment, except only when the prohibition of such false statements would result in a chilling
The majority in Alvarez engaged in a thorough analysis of the Act to determine if false statements about receiving military honors falls within one of the limited categories of speech unprotected by the First Amendment, particularly fraud and defamation. It concluded that it did not. Alvarez, 617 F.3d at 1209-14. This Court agrees with and adopts the reasoning of the Alvarez majority on this issue.
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 5 of 9
effect on protected speech. See Government’s Memorandum of Law in opposition to the Motion, pp. 4-5. It goes on to argue that prohibiting a person from making false claims about receiving a military honor has no chilling effect on speech which would be protected – speech publicizing the fact that a medal was actually awarded. See id. at 7-8. The Court disagrees. First Amendment protection does not hinge on the truth or falsity of the matter stated. See New York Times Co. v. Sullivan, 376 U.S. 254, 271 (1964) (“Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth…”). While some false speech may be proscribed, the Supreme Court has made it clear that not all of it is. In Gertz, a private individual filed a libel action against a newspaper for recklessly printing an accusation that the plaintiff was a Communist. The Supreme Court began its analysis by noting that “there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Gertz, 418 U.S. at 340 (quoting Sullivan, 376 U.S. at 270). The Supreme Court went on to recognize, however, that “[a]lthough the erroneous statement of fact is not worth of constitutional protection, it is nevertheless inevitable in free debate.” Id. at 340. Significantly, it stated “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.” Id. at 341. Gertz held that in order to distinguish between a false statement that relates to a matter of public concern that is protected and that which is not, there must be an element of fault. Alvarez, 617 F. 3d at 1206, citing Gertz, 418 U.S. at 347. “[W]hen a speaker publishes a false statement of fact about a matter of public concern, such a statement can be punished only upon some showing of malice (as opposed to mere negligence), because the malice requirement avoids the potential for punishing speakers who simply make innocent errors.” Alvarez, 617 F. 3d at 1206-
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 6 of 9
07, citing Sullivan, 376 U.S. at 283. (footnote omitted) The receipt of military honors and medals involves the recognition by Congress and the military of extraordinary public service on behalf of servicemen and women. It is, therefore, a matter of public concern under First Amendment analysis. The Act, however, does not require that the speaker act with malice or even with reckless disregard for the truth. In its present form, the Act punishes all false statements about the receipt of military honors, including the malicious, the reckless, the mistaken or the innocent. Since the Act does not include an element of malice, the speech targeted by the Act may not be punished. The U. S. District Court for the Western District of Virginia upheld the constitutionality of the Act by reading into it an element of fault. United States v. Robbins, 759 F.Supp. 2d 815 (W.D. Va. 2011). The court stated The government concedes that the statute should be read to criminalize only knowingly false statements. I conclude that the statute also should be read to include a mens-rea requirement that the defendant intended to deceive. Id. at 819, citing United States v. Esparaza-Ponce, 193 F.3d 1133, 1137-38 (9th Cir. 1999). The Government in the case at bar makes no such concession. In essence, its position is that the Act is violated the moment a false representation about the receipt of a military honor is uttered, without regard to whether the speaker uttered the statement knowing it to be false and without regard to whether the speaker uttered the statement with the intent to deceive. The Alvarez court also addressed this issue. It conceded that if a scienter requirement would save the statute, it would be obligated to read one into it. Alvarez, 617 F. 3d. at 1209. It concluded, however, that reading a scienter requirement into the Act without more is not enough to save it. The court noted that in addition to the absence of any requirement of fault, there is no requirement in the Act that the government prove that the speech proximately caused damage to the reputation and
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 7 of 9
meaning of military decorations and medals and that there is no reason to assume, without specific proof, that the reputation and meaning of military decorations is harmed every time someone lies about having received one. Alvarez, 617 F. 3d at 1210; see alsoUnited States v. Strandlof, 746 F.Supp.2d at 1188 (“Yet as written, the Act criminalizes the mere utterance of the false statement, regardless whether anyone is harmed thereby. It is merely fraud in the air, untethered from any underlying crime at all. Given the clear language of Stevens, I cannot find such incipient and inchoate criminality completely beyond the purview of the First Amendment.”) The Alvarez court also noted that there is no requirement in the Act that the representation be published in any manner, ensuring that liability would attach only to those falsehoods uttered under circumstances in which the harm could result. Alavarez, 617 F. 3d at 1210. For these reasons and others, the court concluded that the Act does not fall within any recognized exception to the First Amendment. This Court finds the reasoning of the Ninth Circuit persuasive. The Court now determines whether or not the Act withstands strict scrutiny review. Under this standard, the government must establish that the law is narrowly tailored to achieve a compelling government interest. Citizens United v. Fed. Election Comm’n., 558 U.S. ---, ---, 130 S. Ct. 876, 898 (2010), citing Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S 449, 464 (2007). The interest which the government seeks to achieve in the Act is laudable – the prevention of fraudulent claims about the receipt of military honors, such claims causing damage to the reputation and meaning of such decorations and medals. Stolen Valor Act of 2005, Pub. L. No. 109-437, §2(1), 120 Stat. at 3266; see also 151 Cong. Rec. S12684-01, S12688-99 (2005) (statement of Sen. Conrad). The Court finds, however, that the Act is not narrowly tailored to achieve that noble interest. As the Ninth Circuit Court of Appeals noted in Alvarez
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 8 of 9
On this record it is speculative at best to conclude that criminally-punishing lies about having received Congressionally-awarded medals is the best and only way to ensure the integrity of such medals – after all, it seems just as likely that the reputation and meaning of such medals is wholly unaffected by those who lie about having received them. The greatest damage done seems to be to the reputations of the liars themselves…Further, even assuming that there is general harm to the meaning of military honors caused by numerous imposters, other means exist to achieve the interest of stopping such fraud, such as by using more speech, or redrafting the Act to target actual impersonation or fraud. Id. at 1217. The court in Alvarez suggested that some of the ways Congress could achieve its objective of preserving the value military decorations include “publicizing the names of legitimate recipients or false claimants, creating educational programs, prohibiting the act of posing as a veteran to obtain certain benefits, or otherwise more carefully circumscribing what is required to violate the Act.” Alvarez, 617 F. 3d at 1210. The Act criminalizes a speaker for saying something that is not true without regard to the context in which the speech takes place. The government does not have to prove that the false statement was knowingly made by the speaker, that the statement was made with the intent to deceive anyone, or that the statement actually caused harm to the reputation of military honors and medals. In its present form the Act subjects a defendant who, under an honest mistaken belief, states that he was awarded a certain honor when, in fact, he actually was not, or a defendant who simply wants to impress his or her friends with false claims of heroism. While it is highly unlikely that anything but the most egregious violations of the Act would be prosecuted, the constitutionality of the Act is not to be determined on assumptions of how prosecutors will, in their discretion, enforce it. See Alvarez, 617 F. 3d at 1213, n. 13, citing Stevens, 130 S. Ct. at 1591. The Court finds that the Act is not narrowly tailored to achieve
Case 8:11-cr-00475-PJM Document 8 Filed 08/29/11 Page 9 of 9
Congress’ interest in protecting the reputation and meaning of military honors and medals and, therefore, fails strict scrutiny.45 In summary, the Court finds that the Act does not fit within the historically recognized categories of speech which find no protection in the First Amendment. Further, it is not narrowly drawn to achieve a compelling government interest. The Court holds that the Act is an unconstitutional infringement on First Amendment speech. Defendant’s Motion is GRANTED.
Date: August 29, 2011
___________/s/______________________ Thomas M. DiGirolamo United States Magistrate Judge
The dissent in Alvarez concedes that the Act does not satisfy strict scrutiny. Alvarez, 617 F. 3d at 1232, n. 10 (dissenting opinion).
In light of this finding, the Court need not determine whether or not the interest Congress seeks to protect is deemed “compelling” for strict scrutiny purposes. In Strandlof, the court found that there was no such compelling interest. Strandlof, 746 F.Supp.2d at 1189.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.