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9th Cir.: It's Still Illegal to Wear Medals You Didn't Earn

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By Mark Wilson, Esq. on November 03, 2014 11:12 AM

In 2009, Elven Joe Swisher was convicted of wearing military medals he didn't earn. Swisher had, in fact, been a member of the military: He served in the Marines and was honorably discharged in 1957 following a combat mission in which he was injured. In 2001, he applied for a claim for service-connected PTSD, providing a narrative and supporting documents stating that he'd received several awards and suffered service-related injuries.

During this time, he wore a Purple Heart medal around, including at the trial of another Marine accused of murder. Turns out, though, that the documents Swisher provided were fraudulent. He had never been awarded any medals. A jury convicted him of several crimes, including wearing unauthorized military medals.

The First Amendment Defense

Swisher made this habeas corpus petition following the Supreme Court's decision in United States v. Alvarez, where the Court struck down portions of the Stolen Valor Act. The Court said the law, which made it a crime for a person to falsely state that he won medals, violated the First Amendment.

But, as a Ninth Circuit panel pointed out in United States v. Swisher, Alvarez was about claiming that a person won the Congressional Medal of Honor. In Swisher's case, he actually wore a Purple Heart that he didn't earn. The Ninth Circuit found Swisher's case closer to United States v. Perelman, where Perelman had shot himself in the foot, then claimed it was a war injury in order to receive military benefits and a Purple Heart.

Perelman also mounted a First Amendment defense, suggesting that the statute would prevent, for example, actors in movies from wearing medals as part of their roles. Of course, the Ninth Circuit saw right through this, emphasizing that deception was the issue, not merely wearing unearned medals in general. And from here, the court's conclusion follows in the instant case. Swisher's act was conduct, not speech, and he wore a medal he didn't earn with the intent to let others know he was "worthy of commendation."

Isn't It All the Same?

"But wait," you're saying to yourself, "Isn't that a distinction without a difference? The act is just a proxy for the false statement, so aren't you just punishing a false statement by claiming you're punishing the act?" You would yourself earn a medal for that question, but the Ninth Circuit decided to brush it under the rug. The panel said it wouldn't overturn Perelman, because circuit rules won't allow it. (Only an "intervening higher authority that is clearly irreconcilable with the prior decision" would give the panel that ability.)

Judge A. Wallace Tashima concurred, "but only under the compulsion" of Perelman. He has the same problem with Perelman we mentioned in the previous paragraph: That, basically, it's still criminalizing speech. Tashima would like to reexamine Perelman, but acknowledged there's nothing a three-judge panel can do about it.

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