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In the Supreme Court of the United States

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In the Supreme Court of the United States No. 11­116 In the Supreme Court of the United States _________ OTIS GARFIELD, Petitioner, v. UNITED STATES OF AMERICA, Respondent. _________ On Writ of Certiorari to the United States Court of Appeals for the Ames Circuit _________ BRIEF FOR RESPONDENT _________ Counsel for Respondent: ORAL ARGUMENT: CAROLINE J. ANDERSON MATTHEW R. GREENFIELD NOVEMBER 17, 2011 STEPHEN M. PEZZI 7:30 P.M. MITCHELL REICH AMES COURTROOM STEPHANIE SIMON HARVARD LAW SCHOOL NOAH M. WEISS The Belva Ann Lockwood Memorial Team QUESTIONS PRESENTED I. Does Petitioner’s knowingly false claim that he received the Navy Cross merit constitutional protection? II. Does a forfeited allocution error merit resentencing, despite Petitioner’s inability to show that the error affected the outcome or fairness of the proceeding? i TABLE OF CONTENTS QUESTIONS PRESENTED ........................................................................................... i TABLE OF CONTENTS ................................................................................................ ii TABLE OF AUTHORITIES ......................................................................................... iv OPINIONS BELOW ....................................................................................................... 1 STATEMENT OF JURISDICTION .............................................................................. 2 CONSTITUTIONAL AND STATUTORY PROVISIONS ............................................. 3 STATEMENT OF THE CASE ....................................................................................... 4 SUMMARY OF THE ARGUMENT ............................................................................... 9 ARGUMENT ................................................................................................................ 12 I. The First Amendment does not protect Petitioner’s knowing lie about receiving the Navy Cross. ................................................................................. 12 A. Knowing lies about receiving military medals are categorically unprotected by the First Amendment. ....................................................... 12 1. This Court has recognized a long tradition of proscribing falsehoods, subject to two considerations. .......................................... 14 2. The narrow category of lies about receiving military medals belongs to this tradition of proscription. ............................................. 17 a. Protecting false statements about receiving military medals is not necessary to give breathing room to speech that matters. ..... 18 b. The government has a legitimate interest in preserving the integrity of the medals system. ...................................................... 20 3. Finding Petitioner’s lies categorically unprotected will not lead to an unacceptable slippery slope or draw impermissible content­based distinctions. .................................................................. 22 ii B. Alternatively, Petitioner’s lie was integral to the criminal act of impersonation. ............................................................................................ 25 C. The Act is narrowly tailored to advance the compelling state interest in protecting the military medals system. ................................... 28 1. The state has a compelling interest in protecting the integrity of the system of military medals. ......................................... 28 2. A ban on knowingly false statements regarding military medals is narrowly tailored to advance the state interest. ................ 29 II. Notwithstanding the district court’s failure to personally address Petitioner, the sentence should be affirmed. .................................................... 33 A. This Court should review Petitioner’s claim under Rule 52(b)’s plain­error analysis because he failed to object in the district court. ...... 34 B. Plain­error analysis supports Petitioner’s sentence because the error was innocuous. ................................................................................... 39 1. The error did not affect any substantial right. ................................... 40 a. Petitioner must show a reasonable probability of prejudice to prevail. ........................................................................................ 41 b. Presumptive or not, prejudice did not result from the error in this case. ..................................................................................... 44 2. The error did not seriously affect the fairness, integrity or public reputation of the proceedings below. ....................................... 48 CONCLUSION ............................................................................................................. 51 APPENDIX ................................................................................................................... 52 iii TABLE OF AUTHORITIES Cases Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) ...................................................................................................... 38 Ashcroft v. ACLU, 542 U.S. 656 (2004) ...................................................................................................... 30 Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002) ...................................................................................................... 20 Bennett v. Hendrix, 325 F. App’x 727 (11th Cir. 2009) ................................................................................ 24 Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729 (2011) ............................................................................................ 13, 28 Brown v. Hartlage, 456 U.S. 45 (1982) ............................................................................................ 15, 17, 29 Buckley v. Valeo, 424 U.S. 1 (1976) .......................................................................................................... 31 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ................................................................................................ 12, 19 Chicago v. Tribune Co., 139 N.E. 86 (Ill. 1923) .................................................................................................. 23 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) ...................................................................................................... 15 Garrison v. Louisiana, 379 U.S. 64 (1964) .................................................................................................. 19, 23 Gates v. City of Dallas, 729 F.2d 343 (5th Cir. 1984) ........................................................................................ 24 iv Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) .............................................................................................. passim Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) .................................................................................................. 9, 25 Green v. United States, 365 U.S. 301 (1961) .................................................................................... 33, 36, 37, 38 Hill v. United States, 368 U.S. 424 (1962) .............................................................................................. passim Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) ................................................................................................ passim Johnson v. United States, 520 U.S. 461 (1997) .............................................................................................. passim Mariani v. United States, 212 F.3d 761 (3d Cir. 2000) ......................................................................................... 31 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) .......................................................................................................... 24 Neder v. United States, 527 U.S. 1 (1999) .......................................................................................................... 44 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .............................................................................................. passim New York v. Ferber, 458 U.S. 747 (1982) .......................................................................................... 16, 17, 22 Nguyen v. United States, 539 U.S. 69 (2003) ........................................................................................................ 38 Pestrak v. Ohio Elections Comm’n, 926 F.2d 573 (6th Cir. 1991) ........................................................................................ 24 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ................................................................................................ 16, 17 v Puckett v. United States, 129 S. Ct. 1423 (2009) .......................................................................................... passim R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .................................................................................... 22, 24, 25, 26 Reno v. ACLU, 521 U.S. 844 (1997) ...................................................................................................... 30 Reuland v. Hynes, 460 F.3d 409 (2d Cir. 2006) ......................................................................................... 24 Rostker v. Goldberg, 453 U.S. 57 (1981) .......................................................................................................
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