power so women are open and free debate and speech our argument is that this reasoning also extends to false expression and in this matter wearing military medals without authority the nonverbal conduct in that case is clearly expressive and clearly deserving of first amendment protection under united states versus avarice eighteen u s c seventy four a contains no limiting force it's not limited to time or place therefore it's facially invalid we must first construe the statute and determine what it covers in this matter the statute covers your false expression that is wearing a military me without authority again that is expression that is deserving protection under the first amendment why the purpose of first fear exposure of false expression allows free to bait it allows us to express ourselves it gives value and meaning to truth therefore significant distinction and why shouldn't we we have firm pearl and your honor the government at this point seems to concede that the false expression is is not just conduct in itself but the actual outline for him you know the false expression is related to the content of that expression so it's not the the wearing of the medals has has no significance or significant conduct and less it to the pure expression itself is there any speech of value going on here that that's worth protecting your honor i believe there is and what is there in mr switchers conduct that was worth protecting it's not so much the conduct it is the expression behind the conduct like what it what with mr swisher expressing that was worth protecting and that is protected by the first amendment your honor mr speech in this situation mr switchers expressing that he is extra i think drying it in those terms would be problematic because i believe there is there's almost infinite type of possibilities now if it has to be drawn to prohibit the attempt to achieve something tangible a benefit or something like that but my but why does have to be something tangible that's what i'm wondering and then we now have sort of a group of cases or i four of them or five recent ones and they all have the same have a male  i suppose the the the answer is is tied into the fact that we want to be able to give him the ability even if we don't appreciate what he's doing and what is expression is still given the ability of the first amendment to relate that expression so being able to drive its into some sort of context where we say you can have false expression unless you have the less you are trying to obtain some sort of recognition in public i believe just as is untenable and i just don't metal wearing the metal is governments a chance that the government has the right to control its expression yes sure i believe in force and i believe that confuses the issue and i believe that because of this if the metal and the manufacturing the regulation the awarding of the medal is government speech and assuming it is under the texas versus walker case that walker says texas case all that does is is still make us ask the question what sort of private speech in relation to that government government speech will we allow the government certainly free to disregard the the interest it does not want to  espouse and that's what i was saying here is that the the privacy or the private speech is something the government can reject and that is something that the supreme court over as again says the government can do the government can have counter speech the government can create a  database with with medal winners in that case was that the medal of honor in our case it's purple heart silver star in a few other medals but much longer with yes few more medal write correct but i believe the i don't believe the saying this is a government speech answers the question i still believe we must get to the issue of whether the private is so the private speech is essentially the government gave me this medal which isn't true for it which then the government can reject the government can use its own speech to counter the false speech or the false expression  not always effective but it's something the government does yes the government has numerous regulations about who can issue the metals how they're warded and those sorts of things so the government has the ability to to do it that way and you closely but i think that's a possibility well i mean that is going to implicate free speech in the same way i mean i don't know if these are real medals or not and i'm not sure the record is clear you agree with that i don't i believe that's correct we don't know if they're really a government matter or a imitation but i think the government goes in and get an injunction against you wearing a medal wouldn't you be standing up there making the same free speech arguments well your honor first of all we wouldn't be talking about that in a criminal context and imprisoning someone for that we'd rather be talking about the question the question is whether in a civil context if there is an injunction against wearing a meadow would you take the same position because you told us that he has the right under free speech to make this statement what's the difference the pun in the consequence may be different but the initial evaluation of the speech is not isn't your honor and then the government did bring up a similar issue i suppose in the trademark type of cases but this isn't a trade this isn't the olympics this isn't the olympics case we're not talking about commercial endorsement or deception so maybe back to my question if you were here are unfortunately i i'm not sure i don't know if where we'd be in that situation if we'd be standing right here or if it would be a accelerate the process to benefit your client without the benefit of government briefing so it's kind of hard to fault the government for not raising the issue when i wasn't given the opportunity to raise the issue before the district court so assuming that issues before us what's and so i believe you know i believe there are the court at least found that the district court least found that there was there was prejudice to the level that they were going just what was going to raise that issue and and  question as far as americans are concerned i think you agree with that that it's still an open question unfortunately i think i don't think it is because i don't know that using the intermediary standard intermediate standard would be the logical subset of what the what the prelate he did everything that everything that just his problem though is i think there are there are cases where the where the plurality would control and would not where the intermediary standard would not control or would not find the same thing that the plurality would find it differently we've got dissent from three justices so we have seven justices who did not find that standard at all and then we've got the texas versus johnson matter and i believe that that is more controlling in this situation and i say that because in that case we're talking more about expressive conduct rather than pure speech but first we have the question of the falsity in other words before you capture the  or express what's more about expressing the what standard to use but doesn't it seem odd to you that you know johnson basically says the government you have a freer hand in regulating conduct and written or spoken speech but doesn't it seem odd to you that if we take your position and we have to look at what the plurality versus justices kagan and pryor did in alvarez you would have us in a situation where a higher standard would be invoked in this case than was in al gore as ultimately isn't there something upside down about that since this is kind rather than if you were written or spoken if within the constitutional power of the government and furthers an important government interest you lose that steps three and four that your are the fee we can't say that the prohibition is unrelated to to express a conflict because i believe it is related to express a product i believe it says that misses the point the point is even with expressive conduct and even given that we're going to go and talk about whether we have strict scrutiny or whether we're an intermediate scrutiny how can what you're arguing survive the low standard for intermediate scrutiny fall back with what the fourth circuit did and they didn't even find that there were less restrictive means even to meet the strict scrutiny state that's correct they did your own though it seems pretty simple on an was and they did discuss this matter they they discussed whether what they were doing is violative of united states for some is just a question not just some abstract huge media scrutiny  situation that's what about the situation is the same or different in terms of the way it was applied in hours and then not just sort of some sky thing but they did something specific about something very closely related  and they said for example it wasn't tailored because there are various other possibilities and the question is how was the situation get for it if that's why the same i think it's the same there are i think it's when we get down to it we've specific things they set specific things that that that that the prior opinions that well i believe the the interests of the government at the same in  both the prior from what judge justice writer says as well as what we have here why aren't there in the government's interest a little bit different in this context because even though it's not as just make human sort of trademark is it seems like there is some trademark like property interest that the government has developed over time in the symbolism that the united's all right so why isn't this worse than just the pure speech context because you're doing something that i don't know in a tangible way harms the symbolic value of this thing that the government has invested a lot of time and effort to develop and i and i understand what you're saying but i believe with what we have though is the ability to counter that we have still have the ability and with the metal not only do we have safe speech where it's fleeting and scott but we have a medal now where someone can be photographed someone can be identified with wearing that honor and that gives further evidence to take to the government to tell the government here's what we have is this valid this wasn't just the statements of the i look at it more of as a as a proof issue and something that it is made easier to to show and have the government and then  only thing we have in the supreme court opinion and i'm not sure that's exactly it but i mean i was trying to look at what the supreme court looked at we can go through was there are harmed of the military honor system is there a database in the count of beach that's enough for this type of thing then we can go down to wearing and have in the medals that's bigger proof so we could need further countermeasures it statute was enough but further countermeasures were required given that this was wearing and having it which was more proof than just talk correct and that that would lead again to to what i've stated is that with that proof the government has more knowledge about what the the the fraudsters same with the fraudster is wearing therefore the countermeasures that can be placed certainly in the database certainly the  speech the government speech and that gives the public this is these honors are public recognition so that gives the public the ability to go see who in fact is is a medal award winner but you're you will agree with me that there's no question there is proof here there was no proof in words and therefore with that additional proof for having the medal putting it on your uniform or wherever you want to put it that's a better proof that you your expression that you say they're making is true therefore harsher countermeasures could be requir argument there would be it would be much less likely for someone to see the medal and then the question however i still believe that with the with the physical object to counter may please the court john pillitteri from the department of justice on behalf of united states there are important distinctions between the wearing prohibition of seven o four a and the provision of the stolen valor act that was struck down and alvare christian for example well you have to look at the specific object now that we have a specific object it's across the nature of the specific object the government has taken great effort to create these objects in order to convey a particular message because the nature of what is prohibited here the fact that its conduct a totally apart from whether it's expressive treated as a kid if your speech is relevant in time have any interest in this other than a six pressure yes the government has an interest in protecting the integrity of the metals it's own message but it's still a message that the and the and the property interests essential of the property interests that the government has created through its great effort in creating these metals but i'd like to just get back to the whole notion  that the distinction between pure speech or expressive conduct is not relevant in this case now it's right excuse it's relevant in terms of the actual prohibition and how it applies to the option of government speech and applies to assuming that there is private speech the application of first amendment scrutiny but it's not relevant to determining the level of scrutiny here as the court's suggested the concurrence in alvarez holds that false statements of easily verifiable fact about things other than politics history science are are subject to intermediate scrutiny and that it doesn't matter if it's pure speech as in the case applying the scrutiny that alvarez requires because if you want to thanksgiving dinner with your family and you wore this metal can you be convicted under the statute if you have an intent to deceive yes you could now but how does that differ from our viewers where they said the statute weaves too broadly because it goes into family personal social and private theirs and this statute could reach private conduct but what i mean just tell me he can be convicted for going to thanksgiving dinner yes now yes it could reach a private conduct but what's different is that if your speech sky went around showing this piece of paper yes there will be problems and they because you're not misappropriating the government the symbol that the government has created being a piece of paper the government gives out as it's a different piece of paper and a piece of metal well i'm not clear from the court's hypothetical exactly what this piece of paper would be so if you're going to think that it's in a war i think it up to look at it in the context of the certificate i think in the context of government speech there are three factors and i'd like to talk about in the government of government which is significant very well could be government speech there are three factors that are important that were important in texas viagras and are important in this case number one is the history of conveying government messages through these objects in this of government speech in the message that's conveyed will have collateral effects private expression that occurred in the texas view walker case an individual could not put a confederate flag on his or her license plate that affected that was but that was simply because the government was not required to accommodate speech or disagreed with it when it was giving a speech on the license plate this is a different situation this is once the government  spoken you're suggesting that the government can then prohibit the message from being used for a different purpose or controverted or prohibit others from imitating that's a different type of action than was in walker it is a little bit different and walker not only a little it's a big difference well supposing swisher purchased this medal and improperly wore it he did not prevent the government from speaking in the first instance and he didn't require the government to accommodate his view why would that be a violation because the the prick the middle that he purchased whether it's an actual on a fine metal or if it's a colorable message the government still conveying the message through the middle that we the government felt that this person was worthy of a being awarded that medal he may disagree with our message but we still believe that that person he served the military efforts of the united states with valor military of or defacing a government press release well if if it's if the government issues a press release and someone i mean it seems to me once the government has made speech then what people do with the speech is a totally different matter by why it's the matter of whether the government issues the speech and what they said in the sons of the converter veterans were you don't have to accommodate what other people want in the government speech but once issued it's a totally different situation on prohibiting what they're after well the government isn't doing that in the supreme court is the government can take action when  message through private actors it can take action to prevent the words that the supreme court used or distortion or garbling of the government's message let's say counsel that we reject your government speech argument and find that the statute really prohibits imposed and there's a way to more narrowly got the statute i don't understand why those arguments don't apply equally to the waring provision as it did to the oral and written prevention's well there are three components of the intermediate  and that why they wouldn't apply equally with regard to the wearing revision of the creation of the day that they see and the fact that the statute can more narrowly be drawn absolutely i'll jump to the third part of the standard which is whether there are whether the  prohibitions in the statute advanced the extent to which they probably didn't advance the government's interest and whether there are other alternative less restrictive measures now the the focus of the alvarez decision plurality and also to a certain extent the concurrence was the availability of a of a list essentially and the list in this case would not serve the purposes of the government for effectively for two reasons or at least two reasons the first that in alvarez the focus was on the congressional medal of honor and the ability to have a list of the medal of honor here we're talking about on that and it would be much more difficult to have a list of every medal received by every individual service member and all on all occasions they receive i mean it's i have a little trouble understanding the practicality of your argument particularly when it's one that the supreme court reference so if you can expand on that well two things one point about stations that might be relevant going forward at a certain point in time but going back to what our records are now it's not feasible but number two person on the record where is that i mean for evaluating the less burdensome means that we have to go based reason and the fact even if we had a totally comprehensive list every medal worn by every person that would not serve the ends of the wearing probation because even if someone wears a medal that they're not authorized the theme tend to deceive even if exactly contemporaneously everybody knows that that person did not earn that medal and if everybody can just wear medals whenever they want i'm going to discuss and contemporaneous and think i'm assuming that even contemporaneous which is the most  immediately if someone did or did not earn a medal that would not serve the same answers the way it was not if you're if you're at a meeting and the person next to you is wearing a purple heart and you say i did the same thing i was in vietnam here's what happened to me i'm also a purple heart winner he goes to jail and i don't both of us are lying  difference is that someone used a symbol that the government issues that the government takes considerable effort to create to convey a message and misappropriated that message and in doing so undermine the ability of the government to communicate through that physical object even if we had a database saying yes this person did or did not wear win a medal that would not prevent it and then if everyone could still just wear medals whenever they want   the the view stoned out act had a contour that that prohibited your speech words in written statements and the wearing provision has a different different contours the prohibition it a prohibits just alice is the first step of that analysis requires that the scope of the prohibition be assessed giving consideration to any speech related harm and a lot of the focus on  prohibition whether it's whether civil or criminal the scope is the same and we ate civil prohibition of lesser scope wouldn't serve the same interests as the criminal is more likely to be harm not just just prior talked about statutes that prevent deception in the trademark area and spent and talked about the san francisco arts case now san francisco arts provided the use of the word olympic not only in commercial area but also in promotional area that had no commercial purpose and it didn't require any confusion and this report said well yes the olympic committee has been expended a lot of effort into developing th arguably the actually using of the can is worse for coca cola because it's a dilutes their market their visual mark which is very important when you put almost all that's predicated in the trademark arena on a grant of a property right congress in the olympic of heraldry is that there used to be a closed system where everyone had to obtain their medals through the military now that's the typical way people still do it you can you can get a first set and you can get a second set and then for a nominal fee you can get as many as you want to the military but you can also purchase it directly from manufacturers and i believe that that system was changed starting in the ninety's was i saw someone from on your property had her intellectual property no no because it's the it's the symbol it's the symbol i mean anyone can purchase a can of coke as well it's the symbol you can't use the coaxing them purchase but you can't sell well this is selling from authorized manufacturers i don't think my understanding is you can't just buy one and then sell it on the street  white why wouldn't the revised statute actually serve that interests that you're talking about in a less intrusive way and other ways now you can't go out and basically try to leverage the metal whether you talk about it or where at why isn't that a least restrictive means that justice pryor was referring to the it is a less restrictive means but that the inter these just right around freely and then when you have a problem so much easier and i was talking about the current stolen valor act which prohibits either wearing or making statements in a manner that gains tangible benefit that prohibition doesn't advance the government's interest as effectively and the intermediate third prong of the intermediate scrutiny standard does not require the government and so it's the second prong it doesn't it  because there are also the third prong it the intermediate scrutiny standard does not require the government to take the least restrictive means of regulation passes the third prong of the intermediate scrutiny standard if the government's interest will be less effectively advanced prevent the court from from addressing it if it wants to and the court could ask us for additional very thing but we have waited under a pillow waver by not raising it in our first so you're raising it you're putting in the category of a poll we were but you are not conceding that it was way by the government before the district court it was not waiting for the district court because we didn't have the opportunity to raise it the district court ruled on the the motion before asking for a response could talk about the impersonation statute where you can't wear a military uniform and courts have come pretty close to holding that constitution i was surprised that you hadn't mentioned how does that figure in to this statute in terms of how we analyze them whether we believe they're very much can grow and the false and person nation statute prevent someone from acting in a manner that suggests they're a government agent be should be applied here and also there's the there's not only the false and person nation but there's also wearing military uniforms there's a prohibition against using the great seal of you know i was referring that's what section se you have a minute eighteen that you're on with tom i have left i would just like to address the impersonation statutes of those were brought up right at the end there in regards to the shack case in the military uniforms in those cases we have a government someone who is is a person a government agent there speak they are inciting someone to take a course of action in this type of situation where someone's wearing a military medal that's that's not necessarily the case there is no inherent course of action very very difficult distinction to to to make because i believe the more appropriate one would be to add if someone was trying to gain some sort of benefit whether he said i'm wondering why you need