CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 111 ooofff 999 IN THE UNITED STATES DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. AARON LAWLESS : : : GOVERNMENT'S MEMORANDUM OF LAW IN SUPPORT OF APPEAL The United States of America, by and through Rod J. Rosenstein, United States Attorney for the District of Maryland, and Hollis Raphael Weisman, Assistant United States Attorney, submits the following Memorandum of Law in Support of its appeal of the order of the United States Magistrate Judge dismissing the above case on the ground that the Stolen Valor Act is unconstitutional. QUESTION PRESENTED Does the Stolen Valor Act, 18 U.S.C. 704(b) violate the First Amendment by impermissibly restricting protected speech? BACKGROUND The government charged the defendant Aaron Lawless by criminal complaint with one count of violating 18 U.S.C. 704(b), known as the Stolen Valor Act [hereinafter referred to as the Act.] Prior to trial, the defendant moved to dismiss on the ground that the act violated the First Amendment. After briefing, Magistrate Judge Thomas DiGirolamo ruled the act unconstitutional and dismissed the charge. The government appealed. 1. 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 1 Crim. No. PJM 11-0475

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 222 ooofff 999 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). 2. Facts of the case. The defendant enlisted in the Army on March 23, 2005. He was sent to Iraq as an infantryman. On July 9, 2006, the defendant returned to the United States for treatment of a preexisting brain lesion at Walter Reed Army Medical Center in the District of Columbia. While in the D.C. area, the defendant began working part-time at Atlantic Guns, a licensed firearms dealer, in Silver Spring, Maryland. He falsely spread the story that he had received several Purple Hearts, a silver star and two bronze stars with V devices.3 He falsely claimed he had been wounded four times, the last after being struck by an improvised explosive device and ending up with shrapnel in his brain. As a result of his fictions, Glock, Inc., the gun company, gave the defendant its Heroes award. The award included a gift of two Glock handguns, a crystal trophy, and a trip for the defendant and his wife to Las Vegas, where a ceremony honoring the defendant occurred. While in the Army, the defendant received no Purple Hearts, silver stars, or bronze stars of any kind. ANALYSIS 1. The standard of review is de novo. An appeal from the of a decision of a magistrate judge is subject to the same the same standard of review applied by a court of appeals in assessing a decision of a district judge. Fed. R. Crim. P. 58(g)(2)(D). Issues of law, such as the interpretation of statutes and regulations, are reviewed de novo. United States v. Bursey, 416 F.3d 301, 305-06 (4th Cir. 2005); United States v. Leftenant, 341 F.3d 338,

the award.

The V device on a bronze star stands for valor, and may or may not be part of 2

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 333 ooofff 999 342-43 (4th Cir.2003). Because the current issue involves only an issue of law, the de novo standard applies. That is not the end of the matter, however. The defendant is asking this Court to uphold a decision that strikes down a law passed by Congress. Judging the constitutionality of such a law is the gravest and most delicate duty imposed upon the courts. Blodgett v. Holden, 275 U.S. 142, 148 (1927). Courts must have due regard to the fact that [the court] is not exercising a primary judgment but is sitting in judgment upon those who also have taken the oath to observe the Constitution and who have the responsibility for carrying on government. Rostker v. Goldberg, 453 U.S. 57. 64 (1981) (Citations and internal quotation marks omitted). 2. The Stolen Valor Act Does Not Violate The First Amendment. The First Amendment to the Constitution provides in relevant part: Congress shall make no law. . . abridging the freedom of speech. While the government acknowledges that the protection for freedom of speech is broad, this Act is narrowly construed and does not contravene the First Amendment. The prohibition under the Act deals with only false statements of fact which are generally unprotected under the first amendment. While courts have limited this category of unprotected speech to prevent the chilling effect on protected speech, this Act allows ample breathing space to fully protected speech. The Act withstands strict scrutiny because it is narrowly tailored to achieve a compelling government interest. Courts have recognized the governments strong interest in protecting the meaning and reputation of military honors and awards. The Act is narrowly tailored to achieve this compelling interest in that it prohibits only knowingly false representations of fact. Congress was within its prerogative when it determined that other means to achieve the government interest are impractical. 3

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 444 ooofff 999 2. The Stolen Valor Act Prescribes a Narrow Category of False Statements of Fact Which Is Generally Unprotected Speech Under the First Amendment. In analyzing whether 704(b) deals with statements that are protected by the First Amendment, the magistrate judge recognized that some false speech may be proscribed, (Memorandum and Order of Court at 5) and that the Supreme Court has established certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. Chaplinsky v. New Hampshire, 315 U.S. 568, 57172 (1942). Supreme Court precedent has upheld regulation of false statements of fact when that regulation is supported by an important government interest and provides adequate breathing space for fully protected speech. In Garrison v. Louisiana, 379 U.S. 64, 75 (1964), the Supreme Court explained that calculated falsehood falls into that class of utterances which are no essential part of any exposition of ideas. In later cases, the Court has emphasized that false statements have no inherent First Amendment value. In BE&K Construction Co. V. NLRB, 536 U.S. 516, 531 (2002), the Court said, false statements [are] unprotected for their own sake. See Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1988) (False statements of fact are particularly valueless; they interfere with the truth seeking function of the marketplace of ideas.); Herbert v. Lando, 441 U.S. 153, 171 (1979) (Spreading false information in of itself carries no First Amendment credentials.); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (stating that there is no constitutional value in false statements of fact, because such statements do not materially advance societys interest in uninhibited, robust, and wide open debate on public issues.) The Supreme Court has continually reaffirmed the fact that false statements are not protected under the First Amendment for their own sake. Rather, they receive only a measure of strategic protection in appropriate contexts, to make sure that regulation of such statements does not chill fully

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 555 ooofff 999 protected speech. Gertz, 418 U.S. at 342. The Supreme Court has upheld government regulations that accommodate the governments interest and provide adequate breathing space for fully protected speech. See New York Times Co. v. Sullivan, 376 U.S. 254, 272 (1964). Those restrictions embrace defamation (id.); fraud (Donaldson v. Read Magazine, 333 U.S. 178, 190 (1948); and intentional infliction of emotional distress through false statements (Hustler Magazine, Inc. V, Falwell,, 485 U.S. 46 (1988)). Similarly, in the context of preventing and punishing fraud, the Supreme Court upheld restrictions on false speech, as long as the restrictions provide sufficient breathing room for protected speech. Illinois, ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 620 (2003). Scienter, materiality and reliance are among the elements that supply the necessary breathing room. See id.; Riley v. National Fedn of the Blind, 487 U.S. 781, 794, 795, 800 (1988). Moreover, prohibition of false statements about receipt of military awards does not present a significant risk of chilling protected speech. Such statements do not contribute to the marketplace of ideas. They are unnecessary to promote robust debate on matters of public concern. New York Times v. Sullivan, 376 U.S. at 271-274, 278-279. They do not burden constitutional rights. See United States v. Dulligan, 507 U.S. 87, 92-98 (1993) (rejecting argument that permitting enhancement of sentence under Sentencing Guidelines due to perjury at trial would impermissibly chill defendants exercise of right to testify); LaChance v. Erickson, 522 U.S. 262, 267 (1998) (rejecting argument that permitting discipline of federal employees for lying to investigators wold coerce employees into falsely confessing to wrongdoing). The Stolen Valor Act creates no likelihood that someone who has actually been awarded a medal would be dissuaded from saying so. Therefore, there is no need to protect the false statements prohibited under the Act to make sure truthful, valuable speech is not deterred. 5

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 666 ooofff 999 3. The Stolen Valor Act Should Be Upheld Under a Breathing Space Analysis. The false statements of fact targeted in 704(b) do not belong in a category of unprotected speech. The court should have followed the breathing space analysis used with defamation and fraud which balances the strong government interest in preventing and punishing the speech with First Amendment concerns. A. The Governments Compelling Interest.

Congress appropriately determined that it had a compelling interest in preventing the harm to the military that results from false claims of military awards. Its venerable power to provide for the common Defence of the United States, to raise and support Armies, and to make Rules for the Government and Regulation of the land and naval Forces are written in Art. I 8 of the Constitution. The predecessor to the Purple Heart award originated in 1982, when George Washington ordered the award of a figure of a heart in public cloth known as a military merit badge to honor those who demonstrated unusual gallantry. United States v. Alvarez, 617 F.3d 1198, 1233 (9th Cir. 2010) (Bybee, J., dissenting); United States v. Perelman, 737 F. Supp. 2d 1221, 1236 (Nev. 2010). General Washington warned, Should any, who are not entitled to the honors have the insolence fo assume the badges of them, they shall be severely punished. On the other hand, it is expected these gallant men who are thus distinguished will, on all occasions, be treated with particular confidence and consideration. GENERAL ORDERS OF GEORGE WASHINGTON ISSUED AT NEWBURGH ON THE HUDSON , 1782-1783 34-35 (Major Edward C. Boynton ed., 1973). Thus, protection of the reputation and value of military honors has an ancient history. The government thanks and recognizes members of the military who risk their lives on behalf of the people of the United States. It is, therefore, appropriate for the government to prohibit those who have never received such honors and awards from making false claims that they did so. 6

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 777 ooofff 999 The fact that Congress felt it essential to adopt the Stolen Valor Act further legitimizes its determination that the Act serves a compelling governmental purpose. Congressional findings are significant not for some formalistic or procedural reason . . . but because they clearly state Congresss contemporaneous judgment as to the need, scope and basis for the law that it is enacting. The statute itself articulates the existence of a congressional judgment of constitutionality. . . . Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820, 924 (4th Circuit 1999). A judgment that the Act is unconstitutional amounts to a direct repudiation of Congresss full authority. Id. B. The Act Provides the Necessary Breathing Space.

The Act does not chill protected free speech, which is fully protected under the First Amendment. It does not inhibit expression of opinion about military policy, the meaning of military awards, the values they represent or any other topic of public concern. Rather, the statute prohibits only making false representations on a particular personal subject matter of particular interest to the United States. One concern of the magistrate judge below was that the Act would chill protected speech, such as mistake or satire, because it has no scienter requirement to provide adequate breathing space to those forms of protected speech. See Memorandum Opinion and Order of the Court at 5. The government submits that the Act contains an inherent scienter requirement. Although it lacks the term knowing, its prohibition on falsely represent[ing] that one has received a military medal indicates that the provision requires knowledge of the false nature of the statement. Blacks Law Dictionary, (9th ed. 2009) defines false representation as a misrepresentation, The act of making a false or misleading assertion about something, usu. with the intent to deceive. The Act, therefore, contains a scienter element. A person is unlikely to be mistaken about whether he has received a military medal, and in all events the accuracy of that claim is objectively 7

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 888 ooofff 999 verifiable. Moreover, to prove the charge, the government must establish all elements beyond a reasonable doubt. See Telemarketing Assocs., 538 U.S. at 620 (Exacting proof requirements in fraud actions, where government must prove fraud by clear and convincing evidence, provide sufficient breathing room for protected speech.) This interpretation was adopted by the U.S. District Court for the Western District of Virginia in United States v. Robbins, 749 F. Supp. 2d 815, 819, in which it further concluded that the statute also should be read to include a mens rea requirement that the defendant intended to deceive. The Acts prohibition on all knowingly false claims to have won a military award reaches no farther than is necessary. Gertz, 418 U.S. at 349. It applies only to factual claims to have been awarded a medal, the type of misappropriation that dilutes the meaning and value of the medals. And even though the Act does not require a showing of particular injury, its prohibition of all such misrepresentations is necessary because of the cumulative effect of false claims on the honor and dignity of the United States military. In the instant case, moreover, a fraud was perpetrated as a result of the defendants false statements the defendant received something of value from Glock as a result of his misrepresentations. C. The Stolen Valor Act Satisfies a Strict Scrutiny Analysis.

Even under a strict scrutiny standard, the statute is constitutional. Strict scrutiny is the standard to be applied when the statute at issue does impose a restriction on free speech. The strict scrutiny standard requires that the Act be justified by a compelling interest and be narrowly drawn to serve that interest. Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2738 (2011). Here, the government has a compelling and venerable interest in protecting the integrity of its military award system against knowingly false claims that dilute the significance of the awards. Such 8

CCCaaassseee 888:::111111---cccrrr---000000444777555---PPPJJJMMM DDDooocccuuummmeeennnttt 111111 FFFiiillleeeddd 000999///222666///111111 PPPaaagggeee 999 ooofff 999 misrepresentations are not easily discoverable by the public. In the instant case, for example, the defendants false statements did not come to light for several years, not until after he had been given the award by Glock. The falsehoods were uncovered when the defendant raised official suspicion of his wounded warrior claims during proceedings in the U.S. District Court in Nebraska, where the defendant was convicted of various gun violations. Cf. United States v. Hinkson, 585 F.3d 1247, 1254-1256 (9th Cir. 2009) (en banc), in which a witness falsely claimed he had been awarded a Purple Heart in an attempt to fool the judge as well as the attorneys in the case. Cf. Office of the Undersecretary of Defense, Report to the Senate and House Committees on a Searchable Military Valor Decorations Database 5-8 (2009). CONCLUSION For the reasons stated above, the government submits that the magistrate judge erred in holding that the Stolen Valor Act violates the Constitution. His judgment should be reversed, and the case should proceed to trial. Respectfully submitted, Rod J. Rosenstein United States Attorney for the District of Maryland /s/ ______________________________ Hollis Raphael Weisman Assistant United States Attorney Bar No. 11465 Jennifer Harrison Law Clerk United States Courthouse 6500 Cherrywood Lane, Room 400 Greenbelt, Maryland 20770 301-344-4029; 301-344-0213 (fax) hollis.weisman@usdoj.gov 9