Law on Wearing of Phony Medals Unconstitutional

Tuesday, January 12, 2016

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Law on Wearing of Phony Medals Unconstitutional—Panel

By KENNETH OFGANG, Staff Writer

A federal law criminalizing the unauthorized wearing of military medals violates the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

In an 8-3 decision, the court said 18 U.S.C. §704(a) violates the First Amendment because mere falsity isn’t enough to justify a ban on a particular type of speech, and the law goes further than is necessary to prevent abuse.

“Wearing a medal communicates that the wearer was awarded that medal and is entitled to the nation’s recognition and gratitude ‘for acts of heroism and sacrifice in military service,’” Judge Sandra Ikuta wrote for the court. “Wearing a medal without authorization, therefore, generally communicates the false message that the wearer is entitled to such recognition and gratitude. Because wearing a medal is symbolic speech, and § 704(a) precludes the unauthorized wearing of a medal, we conclude that § 704(a) regulates speech.”

Applying intermediate scrutiny, the court held that the government had a compelling interest in protecting the integrity of its system for awarding medals, but that in the absence of a requirement that harm to specific individuals be proven, the statute sweeps too broadly.

Ikuta Footnote

Ikuta pointed out in a footnote that between the three-judge panel opinion upholding the statute in October 2014 and the grant of en banc review in May of last year, Congress amended the section to eliminate the penalty for merely wearing a medal.

Anyone “who knowingly purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt for, manufactures, sells, attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value” any of the specified medals remains subject to a fine and/or up to six months in jail.

The amendment does not render Elven Swisher’s appeal moot, however, because he was convicted under the previous version of the law, Ikuta said.

A jury found Swisher guilty of violating §704(a), and other offenses, following an investigation into his testimony at the trial of David Hinkson. Hinkson is now serving 43 years in prison for tax crimes and for soliciting the murders of U.S. District Judge Edward C. Lodge of the District of Idaho; Nancy Cook, the assistant U.S. attorney who prosecuted Hinkson for income tax evasion; and IRS Agent Steven Hines.

Swisher was the government’s star witness, testifying that Hinkson solicited Swisher’s participation in the planned murders because he thought Swisher was a war hero.

Hinkson’s lawyer, however, impeached Swisher with evidence that he had not earned any medals or decorations during his Marine Corps service in the 1950s. Swisher then produced what he said was a copy of his DD-214 discharge form, purporting to show that he was awarded the Silver Star, Navy and Marine Corps Medal with Gold Star, Purple Heart, and Navy and Marine Corps Expeditionary Medal with Bronze “V,” and that he had been seriously wounded in action.

After being convicted and sentenced, Hinkson moved for a new trial on the ground that Swisher had lied. The defense presented the original DD-214, which it had subpoenaed and which made no mention of any medals or other honors, or of any injuries, along with expert testimony establishing that Swisher’s photocopy was a forgery.

Prior Ruling

Ninth Circuit Judge Richard Tallman, who tried Hinkson while on assignment to the District of Idaho, denied the motion on the ground that the issue was collateral and did not sway the jury. The Ninth Circuit eventually affirmed in a 7-4 en banc decision.

Subsequent investigation led to Swisher’s indictment and conviction for making false statements to the Veterans Administration, forging discharge documents to obtain benefits, and theft of government funds, as well as wearing unauthorized medals in violation of §704. His convictions on the other charges were affirmed by the three-judge panel in an unpublished memorandum, and are unaffected by yesterday’s ruling.

During Swisher’s one-week trial, prosecutors said the defendant had in 2001 secured $2,366 a month in federal benefits for post-traumatic stress disorder he claimed to have developed after a covert mission that never actually happened.

An “unpublished narrative” included with Swisher’s application for benefits claimed that “Swisher and approximately 130 other Marines were flown by helicopter to an unknown location in China or North Korea,” Ikuta explained in her opinion for the three-judge panel.

Swisher allegedly claimed that he’d been seriously injured in a firefight while on the mission, and that he’d been awarded the medals but told to keep this a secret.

Marine Corps officials testified at the trial that there was no record of Swisher having received any injuries or medals during his service. Prosecutors also presented a photograph that showed “Swisher wearing the Silver Star, the Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze V, and the UMC Expeditionary Medal.”

After the jury convicted on all counts, Swisher was sentenced to one year in custody and three years of supervised release.

He moved to set the conviction aside after the Ninth Circuit ruled in 2010 that a different subdivision of §704, called the Stolen Valor Act, violated the First Amendment. That decision was affirmed by the U.S. Supreme Court United States v. Alvarez, 132 S. Ct. 2537 (2012).

The Stolen Valor Act prohibited making a false claim to have been awarded certain medals, including the Congressional Medal of Honor. Although no single rationale for the Alvarez decision commanded a majority, six justices agreed that the law could not prohibit a false statement without regard to its context.

Swisher presented similar arguments, but U.S. District Judge B. Lynn Winmill denied the motion, and the Ninth Circuit affirmed. The panel based its decision on United States v. Perelman, 695 F.3d 866 (9th Cir. 2012), which construed §704(a) as proscribing the unauthorized wearing of medals with intent to deceive, and upheld it as so construed.

But with the en banc court unshackled from Perelman, Ikuta concluded that the reasoning of that case could not be squared with Alvarez.

“Alvarez clarified that lies do not fall into a category of speech that is excepted from First Amendment protection,” the judge wrote. “…Given that clarification, our analysis follows a familiar road. Content-based prohibitions of speech and symbolic speech are analyzed under the same framework, and so Alvarez dictates our conclusion that § 704(a) violates the First Amendment.”

Ikuta was joined by Chief Judge Sidney R. Thomas and Judges Stephen Reinhardt, Alex Kozinski, M. Margaret McKeown, Marsha S. Berzon, Richard R. Clifton, and Jacqueline H. Nguyen.

Judge Jay Bybee—the dissenter on the Ninth Circuit panel that ruled for the defendant in Alvarez—dissented yesterday, saying the cases were different.

He argued:

“Elven Swisher took Alvarez one step better: he not only said he was a decorated soldier, he proved it by wearing his Marine Corps League uniform with five medals….

“The majority today holds that Swisher’s conduct is a form of speech entitled to the same protection as Alvarez’s actual speech. I beg to differ.... The law has always been able to tell the difference between conduct and speech, even when the conduct may have some communicative value.”

Judges N. Randy Smith and Paul J. Watford joined the dissent.

The case is United States v. Swisher, 11-35796.