Academic journal article Harvard Law Review

Constitutional Law - Freedom of Speech - Fourth Circuit Upholds Police Impersonation Statute as Permissible Restriction of False Speech

Academic journal article Harvard Law Review

Constitutional Law - Freedom of Speech - Fourth Circuit Upholds Police Impersonation Statute as Permissible Restriction of False Speech

Article excerpt


The U.S. Code and nearly every state analogue contain laws restricting false speech. These statutes proscribe fraud, perjury, and defamation, as well as impersonating U.S. creditors, Red Cross members, and U.S. government employees. (1) Last Term, the Supreme Court revisited false speech in United States v. Alvarez, (2) invalidating the Stolen Valor Act of 2005 (3) (SVA), a federal statute criminalizing false claims of having received a military decoration or medal. Holding that false statements do not constitute a "general category that is presumptively unprotected" by the First Amendment, (4) four Justices for the plurality and two concurring found the SVA inadequately tailored to the government's interest in protecting military honors. (5)

Recently, in United States v. Chappell, (6) the Fourth Circuit upheld a Virginia statute criminalizing the impersonation of police officers, distinguishing the statute from that in Alvarez. (7) Yet, unlike the Alvarez plurality and concurrence (collectively, the Alvarez "majority opinions" or "majority"), which carefully scrutinized the fit between the SVA's ends and means, the Chappell majority uncritically assumed the harm of false statements and minimized the danger to free expression of their proscription. In doing so, Chappell evinced a deeper commitment to the Alvarez dissenters' view of society and the First Amendment than to that of the Justices composing the decision's majority.

On October 6, 2009, U.S. Park Police pulled over Douglas Chappell for speeding on the George Washington Memorial Parkway, (8) a federal road running through northern Virginia near Washington, D.C. Although he had not been employed by the Fairfax County, Virginia, Sheriff's Office for approximately one year prior to the stop, Chappell told the Park Police Officer that he was a Fairfax County Deputy Sheriff. (9) When asked to verify his employment, Chappell made up a Sheriff's Office employee identification number and stated that he had left his law enforcement credentials at home. (10)

Chappell was charged in the U.S. District Court for the Eastern District of Virginia with impersonating a police officer in violation of Virginia Code [section] 18.2-174, (11) a twopart provision criminalizing "falsely assum[ing] or exercis[ing] the functions, powers, duties and privileges incident to the office of sheriff, police officer, marshal, or other peace officer" (the "exercise clause") or "falsely assum[ing] or pretend[ing] to be any such officer" (the "pretending clause"). (12) Chappell initially appeared before a magistrate judge and moved to dismiss the impersonation charge, urging the judge to strike down [section] 18.2-174 as unconstitutionally overbroad. (13)

The magistrate rejected Chappell's overbreadth claim, (14) convicting him under the pretending clause, (15) and the district court affirmed on appeal. (16) Adopting the magistrate's conclusions, the district court found the "small amount of protected conduct ... fall[ing] within the sweep of the statute" insufficient to invalidate it when compared to the amount of conduct falling within the statute's "plainly legitimate sweep" of "deterring the impersonation of police officers." (17)

The Fourth Circuit affirmed. (18) Writing for the panel, Judge Wilkinson (19) considered both facial and overbreadth challenges to the statute, rejecting each. (20) Beginning with Chappell's facial challenge and [section] 18.2-174's "plainly legitimate sweep," the court found that the statute serves Virginia's "critical" interests in protecting public safety and deterring individuals, like Chappell, from impersonating law enforcement officers to "evade fines, incarceration, and other state-imposed sanctions." (21) As Chappell's challenge focused solely on the pretending clause under which the government convicted him, (22) the court sought to distinguish the pretending clause's reach from that of the exercise clause, stating that the pretending clause, but possibly not the exercise clause, prohibited "pretending to be a law enforcement officer in order to board an airplane. …

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