U.S. v. Strandlof

• Decision Date: 16 July 2010
• Docket Number: Criminal Case No. 09–cr–00497–REB.
• Citation: 746 F.Supp.2d 1183
• Parties: UNITED STATES of America, Plaintiff,v.1. Rick Glen STRANDLOF, a/k/a Rick Duncan, Defendant.
• Court: U.S. District Court — District of Colorado

746 F.Supp.2d 1183

UNITED STATES of America, Plaintiff,

v.1. Rick Glen STRANDLOF, a/k/a Rick Duncan, Defendant.

Criminal Case No. 09–cr–00497–REB.

United States District Court, D. Colorado.

July 16, 2010.

OPINION TEXT STARTS HEREWest CodenotesHeld Unconstitutional18 U.S.C.A. § 704Recognized as Unconstitutional18 U.S.C.A. § 48

Jeremy S. Sibert, James O. Hearty, U.S. Attorney's Office, Denver, CO, for Plaintiff.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS INFORMATION

BLACKBURN, District Judge.

The matter before me is defendant's Motion To Dismiss Information [# 13] ¹ filed December 2, 2009. Having considered the motion and response and their supplements, as well as the arguments and authorities presented by amicus curiae,² I find and conclude that the statute under which defendant is charged is unconstitutional as a content-based restriction on First Amendment speech that is not narrowly tailored to serve a compelling government interest. Accordingly, I grant the motion.

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 As originally enacted, section 704 criminalized the wearing, manufacture, or sale of unauthorized military awards.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

falsely represent[ ] [oneself], 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 ...

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.³ The Amended Information charges defendant with falsely representing himself to have been awarded a Purple Heart on four different occasions in 2006 and 2009, and falsely representing that he had been awarded a Silver Star on one occasion in 2009. By the instant motion, defendant seeks to dismiss these charges, arguing that the Act is facially invalid as a content-based restriction on free speech.

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. (Amended Government's Supplemental Brief at 10[# 27], filed January 11, 2010.) Stated differently, because defendant was not conveying a political message, speaking on a matter of public concern, or expressing a viewpoint or opinion, so the argument goes, his speech does not merit constitutional protection. The only other court that appears to have addressed the constitutionality of the Stolen Valor Act relied on a similar rationale in rejecting a defendant's First Amendment challenge to the statute. ( See id. App., Exh. A (Order Denying Defendant's Motion To Dismiss, United States v. Alvarez, CR 07–1035(A)–RGK).) ⁴

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). ⁵ The government's primary argument in Stevens closely tracks that advanced in support of the Stolen Valor Act here:

[The Government] contends that depictions of illegal acts of animal cruelty that are “made, sold, or possessed for commercial gain” necessarily “lack expressive value,” and may accordingly “be regulated as unprotected speech.” The claim is not just that Congress may regulate depictions of animal cruelty subject to the First Amendment, but that these depictions are outside the reach of that Amendment altogether—that they fall into a “ ‘First Amendment Free Zone.’ ”

....

.... [T]he Government points to Congress's “legislative judgment that ... depictions of animals being intentionally tortured and killed [are] of such minimal redeeming value as to render [them] unworthy of First Amendment protection,” and asks the Court to uphold the ban on the same basis. The Government thus proposes that a claim of categorical exclusion should be considered under a simple balancing test: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”

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

such descriptions are just that—descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute's favor.

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.⁶ Although the government did not advance this precise argument that the Stolen Valor Act is a legitimate restriction on fraudulent speech, in the interest of intellectual honesty, I consider it here.

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.⁷ To survive constitutional scrutiny, a common law cause of action for fraud requires proof of harm or detrimental reliance. See, e.g., Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 620–21, 123 S.Ct. 1829, 1840–41, 155 L.Ed.2d 793 (2003) (noting that “[e]xacting proof requirements” of state law fraud claim, including requirements that “the defendant made the representation with the intent to mislead the listener, and succeeded in doing so,” rendered law constitutional as “provid[ing] sufficient breathing room for protected speech”). Clearly, the sponsors of the Act were concerned that false claims regarding military awards would perpetuate fraud. See Remarks of Senator Conrad, Statements on Introduced Bills and Joint Resolutions, 151 Cong. Rec. S12684–01, S12688 (Nov. 10, 2005) (noting that “imposters use fake medals—or claim to have medals that they have not earned—to gain credibility in their communities. These fraudulent acts can often lead to the perpetration of very serious crimes”). 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...