United States v. Strandlof

Decision Date27 January 2012
Docket NumberNo. 10–1358.,10–1358.
Citation667 F.3d 1146
PartiesUNITED STATES of America, Plaintiff–Appellant, v. Rick Glen STRANDLOF, a/k/a Rick Duncan, Defendant–Appellee.andThe American Legion, Amicus Curiae.andChristopher Guzelian, Amicus Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Joseph F. Palmer, United States Department of Justice, Criminal Division, Appellate Section, Washington, District of Columbia (John Walsh, United States Attorney, and Michael C. Johnson, Assistant United States Attorney, United States Attorney's Office, Denver, CO, with him on the briefs), for Appellant.

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, and O. Dean Sanderford, Research and Writing Specialist, with him on the brief) Office of the Federal Public Defender, Denver, CO, for Appellee.

Van H. Beckwith, Ryan L. Bangert, and Russell W. Fusco, Baker Botts L.L.P., Dallas, TX, and Aaron M. Streett, Baker Botts L.L.P. Houston, TX, and Philip B. Onderdock, Jr., National Judge Advocate, The American Legion, Indianapolis, IN, on the brief for Amicus Curiae The American Legion in support of Appellant.Christopher Guzelian, San Diego, CA, on the brief for Amicus Curiae Christopher Guzelian in support of Appellee.

Before TYMKOVICH, BALDOCK, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

Appellant Rick Strandlof was charged under the Stolen Valor Act, 18 U.S.C. § 704(b), which makes it illegal to falsely claim to have received a military award or honor. We must decide whether the Act is constitutional. Answering this question requires us to determine whether, and to what extent, the First Amendment prohibits Congress from punishing knowingly false statements of fact.

Reasoning that false statements are generally protected by the First Amendment, the district court declared the Stolen Valor Act unconstitutional and dismissed the charges against Strandlof. We disagree with this reading of Supreme Court precedent and reverse. As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.

I. Background
A. The Statute

The Stolen Valor Act provides:

Whoever 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 Act provides for jail terms of up to six months for most misrepresentations and up to a year for false statements that a person has received the Congressional Medal of Honor or other specified awards. Id. § 704(d).

B. Strandlof's Prosecution

Over a multi-year period, Appellant Rick Strandlof concocted a ruse that plainly put him in the cross-hairs of the Stolen Valor Act. Despite never having served in the armed forces, Strandlof founded the Colorado Veterans Alliance, and he frequently told veterans he graduated from the United States Naval Academy, was a former U.S. Marine Corps Captain, and had been wounded in combat in Iraq. He bragged of receiving a Purple Heart, which is given to soldiers wounded or killed in action, and he boasted that he had been awarded the Silver Star for gallantry in battle. For example, while attending a planning meeting for a luncheon to solicit donations for veterans, Strandlof falsely claimed to have received a Purple Heart. At veterans gatherings, Strandlof used the alias Captain Rick Duncan,” and he created online profiles where he claimed to have graduated from the Naval Academy.

A number of local veterans found Strandlof to be an unconvincing imposter. Angered by Strandlof's lies, they contacted the FBI and reported their suspicion that Rick Duncan was a phony. After military officials confirmed Strandlof never attended the Naval Academy or served in the military, the government filed a criminal complaint in the District of Colorado charging Strandlof with making false claims about receipt of military decorations or medals, in violation of the Stolen Valor Act.

Strandlof pleaded not guilty and moved to dismiss the charges. Represented by a federal public defender, he argued the Stolen Valor Act is unconstitutional under the First Amendment, both facially and as applied to him, because it is a content-based restriction on speech. Rejecting the government's argument that false speech is unprotected under the First Amendment, the district court found the Act facially unconstitutional and granted Strandlof's motion. United States v. Strandlof, 746 F.Supp.2d 1183, 1185 (D.Colo.2010). The court held that false speech is protected by the First Amendment unless it falls within one of the narrow categories of speech that have been historically recognized as exceptional, such as fraud or defamation. Id. at 1186–88. The district court further held the speech criminalized by the Stolen Valor Act was analogous neither to fraud nor defamation, and that it could not be shoehorned into any of the other historical categories. Id. The district court therefore characterized the Act as a content-based regulation of protected speech and held that it did not survive strict scrutiny. Id. at 1189–91.

C. Other Stolen Valor Act Prosecutions

Other courts have confronted this same question, with varying results. 1 In United States v. Alvarez, 617 F.3d 1198 (9th Cir.2010), the only circuit court case to consider this issue, a divided Ninth Circuit panel held the Stolen Valor Act is facially unconstitutional.2 The majority opinion found that “false factual speech, as a general category unto itself,” does not fall within those “historical and traditional categories [of unprotected speech] long familiar to the bar.” Id. at 1206 (quotation omitted). Specifically, the court reasoned that the Stolen Valor Act does not “fit[ ] into the defamation category” of unprotected speech, because it does not prohibit only speech that is made with actual malice or knowledge of falsity and that is “injurious to a private individual.” Id. at 1209 (quotation omitted). Thus, the Ninth Circuit applied strict scrutiny and concluded that, although the Stolen Valor Act serves an important interest (perhaps even a compelling interest), it is not narrowly tailored because “other means exist to achieve the interest of stopping [false speech regarding military awards], such as by using more speech, or redrafting the Act to target actual impersonation or fraud.” Id. at 1211.

In a dissenting opinion, Judge Bybee concluded strict scrutiny was unnecessary because Supreme Court precedents established knowingly false statements of fact as a category of speech unprotected by the First Amendment. Id. at 1218–19 (Bybee, J., dissenting). In addition, several circuit judges wrote concurring or dissenting opinions to the Ninth Circuit's subsequent, narrowly divided, order denying rehearing. The Supreme Court granted a writ of certiorari to review Alvarez.3 United States v. Alvarez, ––– U.S. ––––, 132 S.Ct. 457, 181 L.Ed.2d 292 (2011).

District courts considering the question have reached varying conclusions. Like the Ninth Circuit and the District of Colorado, the Southern District of Iowa concluded the Stolen Valor Act is an unconstitutional content-based restriction on speech. United States v. Kepler, No. 4:11–cr–00017 (S.D.Iowa May 31, 2011) (order). Conversely, in United States v. Robbins, 759 F.Supp.2d 815 (W.D.Va.2011), the Western District of Virginia concluded false statements of fact are not constitutionally protected and upheld the Act.

Appeals involving the constitutionality of the Stolen Valor Act are pending in the Eighth and Eleventh Circuits. See United States v. Kepler, No. 11–2278 (8th Cir.2011); United States v. Amster, No. 10–12139 (11th Cir.2011).

II. Discussion

The sole question presented is whether the Stolen Valor Act, a content-based restriction on speech, is facially constitutional. We find it is and reverse the district court's decision. As the Supreme Court has repeatedly asserted, the Constitution does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow “breathing space” for core protected speech—as the Supreme Court calls it, “speech that matters.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (applying New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). As we show, under this legal framework, the Stolen Valor Act survives scrutiny because (1) it restricts only knowingly false statements of fact, and (2) specific characteristics of the statute, including its mens rea requirement, ensure it does not overreach so as to chill protected speech.

In the next section, we review the specifics of the Act, analyze what the Supreme Court has and (as importantly) has not said about legislative restrictions on false statements of fact, and survey past legislative efforts to regulate in this area.

A. Legal Background
1. The Stolen Valor Act

Since America's founding, penalties have been imposed for wearing unauthorized military medals. General Orders of George Washington Issued at Newburgh on the Hudson, 1782–1783, at 34–35 (Edward C. Boynton ed., 1883) (reprint 1903) (“Should any who are not entitled to the [military] honors have the insolence to assume to the badges of them, they shall be severely punished.”); see also Alvarez, 617 F.3d at 1234 (Bybee, J., dissenting). And since 1949, 18 U.S.C. § 704(a) has made it illegal to wear, manufacture, or sell unauthorized military awards. In recent years, during the Afghanistan and Iraq wars, C...

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