BLACKBURN, District Judge.
The matter before me is defendant's Motion To Dismiss Information [# 13]
Defendant is charged with violating the Stolen Valor Act of 2005, which amended 18 U.S.C. § 704. As originally enacted, section 704 criminalized the wearing, manufacture, or sale of unauthorized military awards. See 18 U.S.C. § 704(a). Congress, however, felt that this statute was inadequate to protect "the reputation and meaning of military decorations and medals." Pub.L. No. 109-437 § 2, 102 Stat. 3266, 3266 (2006). The Stolen Valor Act expands the protections of section 704 to make it crime to
Id. § 3 (codified at 18 U.S.C. § 704(b)). Section 704(d) provides enhanced penalties for violations implicating certain types of military honors, including, of particular relevance in this case, the Purple Heart and the Silver Star.
Attempting to side-step the First Amendment analysis implicated by the motion, the government contends that defendant's admittedly false statements enjoy no First Amendment significance at all. Although conceding that some falsehoods may be protected in the context of encouraging public debate and political discourse—"speech that `matters'" in the government's view—the government maintains that defendant's statements and other, similar "[p]etty lies ... do not promote the uninhibited marketplace of ideas and therefore are not protected" by the First Amendment. (
I am not so sanguine. The government's argument, which invites it to determine what topics of speech "matter" enough for the citizenry to hear, is troubling, as well as contrary, on multiple fronts, to well-established First Amendment doctrine. See Riley v. National Federation of the Blind of North Carolina, 487 U.S. 781, 791, 108 S.Ct. 2667, 2674-75, 101 L.Ed.2d 669 (1988) ("The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. To this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners[.]") (citation and internal quotation marks omitted); see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826, 120 S.Ct. 1878, 1893, 146 L.Ed.2d 865 (2000) ("We cannot be influenced, moreover, by the perception that the regulation in question is not a major one because the speech is not very important.").
More importantly, however, the United States Supreme Court recently has rejected, in the strongest possible terms, this precise argument. In United States v. Stevens, ___ U.S. ____, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010), the Court considered the First Amendment ramifications of a federal statute criminalizing the creation, sale, or possession of depictions of animal cruelty. See id., 130 S.Ct. at 1583 & n. 1 (citing 18 U.S.C. § 48).
Id. at 1585 (internal citations omitted; emphasis and first two alterations in original).
The Court's response to that proposal was stark: "As a free-floating test for First Amendment coverage, [it] is startling and dangerous." Id. Although acknowledging that descriptions culled from its past precedents could be read to support the government's cost-benefit balancing formula, id. at 1585-86, the Court confirmed that
Id. at 1586. Rather, the Court noted that where speech has been found to enjoy no First Amendment protection, it is not because of its relative value but rather because it is "intrinsically related" to an underlying criminal act. See id. (noting that "[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute") (citation and internal quotation marks omitted). Thus the Court affirmed that "[o]ur decisions ... cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment." Id.
Stevens thus counsels extreme delicacy in accepting the government's proposal to remove defendant's speech entirely from the realm of First Amendment consideration. On the other hand, Stevens also recognized that there are a limited universe of "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Id. at 1584. One of those categories is fraud. Id.
The principal difficulty I perceive in trying to shoehorn, the Stolen Valor Act into the First Amendment fraud exception is that the Act, although addressing potentially fraudulent statements, does not further require that anyone have been actually mislead, defrauded, or deceived by such misrepresentations.
The government does not seriously contest that the Stolen Valor Act criminalizes speech on the basis of its content. "Content-based restrictions on speech are those which suppress, disadvantage, or impose differential burdens upon speech because of its content." Golan v. Gonzales, 501 F.3d 1179, 1196 (10th Cir.2007) (citation and internal quotation marks omitted). Stated inversely, "[g]overnment regulation of expressive activity is content neutral so long as it is justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2754, 105 L.Ed.2d 661, 109 S.Ct. 2746 (1989) (emphasis, citation, and internal quotation marks omitted). Given these standards, there is little doubt that the
As such, the Act invokes strict scrutiny, and "strict scrutiny leaves few survivors." City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 455, 122 S.Ct. 1728, 1745, 152 L.Ed.2d 670 (2002) (Souter, J., dissenting). Because a content-based restriction is "presumptively invalid . . . the Government bears the burden to rebut that presumption." Playboy Entertainment Group, Inc., 120 S.Ct. at 1888 (citation and internal quotation marks omitted). To do so, the government must establish that the Act is narrowly tailored to serve a compelling government interest. Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988). A compelling governmental interest is an interest "of the highest order." Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). Accordingly, the universe of interests sufficiently compelling to justify content-based restrictions on pure speech is extraordinarily limited. See, e.g., Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989) ("We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors."); Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 2782, 69 L.Ed.2d 640 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.") (citation and internal quotation marks omitted). Because I find that no such compelling interest pertains here, I do not address any potential overbreadth issue.
The government posits that the Act "serves a compelling interest of protecting the sacrifice, history, reputation, honor, and meaning associated with military medals and decorations." (
To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages
Id. at 2546-47. Following Johnson, I am hard pressed to find that the government's interest in preserving the symbolic meaning of military awards is sufficiently compelling to withstand First Amendment scrutiny.
The government attempts to distinguish Johnson on the basis that the defendant there had intended to convey a particular viewpoint or political opinion by his act of burning the flag. See id. at 2536-37. This is true, but still misses the mark. Because Johnson dealt with expressive conduct, as opposed to pure speech, a determination that the defendant intended to express a particular opinion was a precondition to the First Amendment analysis. See id. at 2539 ("In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether `[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.'") (citation omitted). No such condition precedent applies when the restriction impacts pure speech, as it does in this case.
Moreover, and with the benefit of the Supreme Court's more recent pronouncements in Stevens, it is clear that any attempt to differentiate Johnson as protecting speech only insofar as it is intended to express an opinion must fail. Indeed, it strikes me as unlikely that those who make, sell, or possess "crush videos" are seeking to convey a political message, express a viewpoint or opinion, or debate a matter of public concern. See Stevens, 130 S.Ct. at 1583 (noting that such depictions "appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting") (citation and internal quotation marks omitted). Nevertheless, the Supreme Court has confirmed that such speech is not completely outside the First Amendment.
The government further argues that the Act promotes a compelling interest in promoting heroism and sacrifice by our military personnel and, more particularly, that "[d]iluting the meaning or significance of medals of honor, by allowing anyone to claim to possess such decorations, could impact the motivation of soldiers to engage in valorous, and extremely dangerous, behavior on the battlefield."
I acknowledge that there is much irony, to put it gently, in concluding that the core values of our system of governance, which our military men and women serve to defend with their very lives, are here invoked to protect false claims of entitlement to the honors that recognize the most courageous instances of that service. Nevertheless, I have profound faith—a faith that appears to be questioned by the government here—that the reputation, honor, and dignity military decorations embody are not so tenuous or ephemeral as to be erased by the mere utterance of a false claim of entitlement. The social approbation that attends those who would attempt to bask in the reflected glory of honors they have not earned demonstrates that the people of this nation continue to revere our brave military men and women regardless of—or perhaps even more so because of—false and vainglorious attempts to appropriate such accolades.
What the Supreme Court stated in relation to the impregnable symbolism of the American flag is equally true of the reputation, honor, and dignity of our nation's military decorations:
Johnson, 109 S.Ct. at 2547-48. Imposters such as defendant abase themselves. Fortunately, their disingenuousness is insufficient to undermine the stalwart and unswerving dignity and honor of our true
1. That defendant's
2. That The Stolen Valor Act is
3. That the
That the defendant and his bond