Let’s start by looking at the Defendant on this one, just so you get an idea of what he did. From the opinion:
Defendant Elven Joe Swisher enlisted in the United States Marine Corps on August 4, 1954, a little over a year after the Korean War ended. In August 1957, he was honorably discharged from the Marine Corps into the reserves. Upon discharge, Swisher was given a DD-214 discharge document, a typewritten form that provided his name, education, type of discharge, last duty assignment, last date of service, and similar information regarding his military service. The form required a listing of Swisher’s “decorations, medals, badges, commendations, citations and campaign ribbons awarded or authorized.” In the authenticated copy of Swisher’s original DD-214, the term “N/A” (not applicable) is written in the field.
In 2001, more than forty years after his discharge, Swisher filed a claim for service-related Post-Traumatic Stress Disorder (PTSD). In his application, Swisher claimed he suffered from PTSD as a result of his participation in a secret combat mission in North Korea in August or September 1955. Along with his application, Swisher provided a self-published narrative that described the North Korea operation.
According to the narrative, Swisher was wounded in battle, and subsequently presented with a Purple Heart by an unnamed captain who visited him in the hospital. The same captain told him he was “entitled to and should wear the National Defense Medal, Korean War Service Medal and the Korean War U.N. Service Medal and Ribbons.” Swisher claims he also received a Silver Star and a Navy Commendation Medal and Ribbon with a Bronze “V.”
All of that was nonsense, he fraudulently created a DD214, applied for VA benefits, and got caught. He apparently had to pay the VA back. Nonetheless, at a trial for another individual, Swisher showed up wearing a variety of medals, including a purple heart, which got him busted under the Stolen Valor Act.
Now, some background here so you understand what is going on. The first Stolen Valor Act, passed in 2005 had two portions. The first was that you couldn’t wear medals you didn’t earn, and the second is that you couldn’t claim to have earned medals that you hadn’t actually earned. A guy named Xavier Alvarez was convicted on the second after claiming he’d received the Medal of Honor and a few other things. It went up to the Supreme Court, who in a very convoluted and divided opinion said that that portion, the claiming medals part, violated the Constitution. The vote on that was 3-2-4. Three said it was always unconstitutional, two said that it was unconstitutional in this case because it needed a fraud element added, and four said it should stand. [Correction on that as I think about it, it was 4-2-3 I believe. Either way, a plurality, not a majority, so the 2 in the middle are the controlling ones.]
Subsequently, the Congress fixed the law, said that claiming medals for the purpose of securing something of value was illegal, and that’s where we stood until yesterday. Technically, we still stand there, because while numerous reporters are getting it wrong, what the 9h Circuit yesterday decided was that the original law’s prohibition on WEARING medals was also unconstitutional, basing it on the same grounds the Supreme Court found in Alvarez on the claiming medals portion.
The opinion is not all that interesting or shocking, and I’m not going to quote from it, only because it is REALLY dense legal-ease that most people will not understand. But it basically dealt with whether this was a compelling government issue, and if it was (and they agreed it was) whether the government answer to addressing it was the least restrictive method. The majority felt that it was not, and again argued for a database or something similar.
I, of course, found the dissent more compelling, but a few notes first before I go into what the dissent said. This decision is not entirely unexpected and has a limited impact on things. It actually goes directly against what another circuit (the 4th) decided in a substantially similar case, so it will likely end up at the Supreme Court again. Worst case scenario there is that the Supreme Court says that the wearing medals portion has to be re-written just as the claims about military awards, to say something like “whoever wears unearned military medals with the intent to deceive for purposes of gaining something of tangible benefit shall be found guilty and…..” Etc. That’s worst case.
Either way, it doesn’t effect the new Stolen Valor Act (Law) and it really doesn’t change anything. Swisher was wearing the medal apparently to add credence to his testimony in a case, so if the law was rewritten, he probably would he been swept up under that one. Either way, Swisher doesn’t get off scot free, because he was already convicted of a host of other things, like making false statements in court, altering a federal document (his DD-214) etc.
But some portions from the dissent, which I found compelling. They started by noting the difference between spoken words and the actions of wearing the medal.
The statute at issue here, however, does not police “white lies,” nor does it prohibit lying generally. Instead, it targets a very specific lie that implicates a very specific government interest, an interest which the full court here and the Supreme Court in Alvarez agrees is significant. And importantly, the lie the government wishes to punish cannot be uttered with words; it can only be accomplished by falsely wearing the nation’s medals. Although the Court in Alvarez found that the harm caused by the form of the lie regulated by § 704(b) did not outweigh the First Amendment harm, the interests implicated by § 704(a) must be weighed differently from those at issue in Alvarez under § 704(b). The harm to the government’s interest in upholding the military honors system caused by the false wearing of its medals is greater than the harm caused by “bar stool braggadocio.”
And then they talked about who the victims of this type of behavior are:
The false and deceptive wearing of military medals “dilutes the value” of military honors generally, by conveying the impression that “everyone” earns them. Moreover, such conduct also dilutes the symbolic value of the medal itself, hampering the government’s ability to reward those it has concluded are worthy of recognition. The purpose of a military medal is not only that it conveys the government’s appreciation for an individual’s service to the individual, but that it conveys the government’s commendation of that individual to others, identifying the medal winner “as an example worthy of emulation.” United States v. Alvarez, 617 F.3d 1198, 1234 (9th Cir. 2010) (Bybee, J., dissenting). The value of the military medal, like the value of a trademark, is that it is both recognizable and publicly understood to convey a specific message: in this case, the message that the wearer has done something worthy of admiration. When those who are unworthy are allowed to wear the medal, the government can no longer identify its heroes in a way that is easily discernible by the public….
This is a key response, because one of the complaints of the majority is that there was no specified harm to individuals by someone wearing the medal. The dissent makes clear its opinion that anyone who actually earned those awards has the value of them diluted.
Lastly, the dissent looked at the “proposed answer” to the Stolen Valor problem, a nation-wide database. Now, opinions on this one differ amongst even those on our side, but I tend to agree with the justice writing the dissent here Circuit Judge Bybee:
Finally, the majority, following Alvarez, 132 S. Ct. at 2550–51 (Kennedy, J.) (plurality opinion); id. at 2556 (Breyer, J., concurring in the judgment), proposes a database of medal winners as a means to counteract Swisher’s deception.10 Maj. Op. at 31–32. To my mind, this is no solution at all to the problem of individuals falsely wearing medals. If the public has to check the database to confirm that a medal wearer actually earned the medal, the purpose of the medal itself is utterly defeated. If we can no longer trust what we can see, the only honor the United States can confer on its heroes is a listing in a database. Once wearing the medal itself doesn’t signify anything more than a presumption of a property right, the nation’s highest honors will have become, literally, virtual.
He addresses this more fully earlier too, which I include here out of order, because I think it makes a great deal of sense:
But as anyone knows who has witnessed the President awarding the Congressional Medal of Honor or a promotion ceremony pinning a new officer—or even an Olympic medals ceremony or a Cub Scout court of honor—there is value, both symbolic and tactile, in the awarding of a physical emblem. If there is important value in the act of awarding a physical medal, there is important value in the wearing of it.
Anyway, the bottom line is this: there is now a split in the courts on whether wearing of certain medals violates the law, and it will end up in the Supreme Court most likely, which will get another shot at explaining what the best way to deal with this is. Various guys who lie about their military service are crowing about this “major victory” for them, but the exact opposite is true as it regards those of us who publish their falsehoods. The courts have now twice said that the proper way to deal with such people is to take it to the court of public opinion, in other words, publish how these people lied and shame them for it. The problem there is that they then sue us, and we have to go to court to defend actions which the Supreme Court explicitly told us to do. Either way, this isn’t the great victory they think it is. All this will do is push it up the chain again, get more publicity for the people that lied, and force the Supreme Court to enunciate more clear guidelines.
But either way, the new Stolen Valor Act is completely intact, and if you try to scam the government or anyone else with your fake stories of heroism, you will likely get arrested.
Don’t believe me? Just ask Robert Guidi of New Jersey (pictured above) who was arrested after claiming to be a Green Beret Sniper and POW during Vietnam in order to get a charitable group to build him a $30,000 deck which he can’t enjoy from his current residence at the Morris County Correctional Facility.
UPDATE: [DELETED]
It appears I was wrong, and have deleted that portion. It looks like the wearing portion was repealed. But now I’m even more confused, because the 4th Circuit case upheld it.
But a footnote in the dissent states:
Both provisions of the Stolen Valor Act were amended following Alvarez, subsequent to the events that gave rise to Swisher’s case. Congress removed the “wearing” provision in § 704(a), apparently preemptively, and more substantively revised § 704(b) to comply with the Court’s holding in Alvarez. See Stolen Valor Act of 2013, Pub. L. No. 113-12, § 2, 127 Stat. 448 (2013). Thus, the precise provisions at issue here are no longer in effect. As amended, however, the statute would still appear to cover Swisher’s conduct. Section 704(b) now reads: “Whoever, with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself out to be a recipient of a decoration or medal . . . shall be fined under this title, imprisoned not more than one year, or both.” 127 Stat. 448.
But the dissent also notes that:
Concomitantly, because § 704(a) requires proof of deceptive conduct, any harm to First Amendment interests is less than in Alvarez, and the less restrictive alternatives discussed in Alvarez, less effective.
The majority today ignores these distinctions, and discusses the outcome of this case as though Alvarez renders it a foregone conclusion. But it is not. Alvarez does not clearly compel the result here—indeed, that was the conclusion reached by a panel of our court in United States v. Perelman, 695 F.3d 866, 872–73 (9th Cir. 2012), in which we upheld § 704(a) under the lesser scrutiny applied to conduct regulations laid out in O’Brien.1 It was also the conclusion reached by the Fourth Circuit, which found that § 704(a) would survive strict scrutiny. United States v. Hamilton, 699 F.3d 356, 371–74 (4th Cir. 2012). While I do not entirely agree with the reasoning in these cases, they demonstrate that the reach—and indeed the holding—of Alvarez is unclear. Alvarez gives uncertain guidance as to how false statements should be analyzed, especially if Justice Breyer’s opinion controls under Marks v. United States, 430 U.S. 188, 193 (1977).
So I have no idea.
UPDATE x2:
I think I may have figured this out. Congress seems to have taken out the bifurcated thing that they had about speech and wearing medals 704(a) & (b) and changed the wording. So it now reads:
“Whoever, with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself out to be a recipient of a decoration or medal . . . shall be fined under this title, imprisoned not more than one year, or both.” 127 Stat. 448.
My guess is that wearing a medal could be assumed to be “hold[ing] oneself out to be a recipient of a decoration or medal” and so they assumed that both now required the mens rea, or guilty mind, which means there was a fraud element.
Which makes this case more interesting, because then the question becomes this:
Does wearing a medal one did not earn while testifying before a court satisfy the requirement of the statute for “tangible benefit”?
That’s a VERY interesting question. Because Congress punted on what a tangible benefit was. If you are asked to be Grand Martial (Marshall?) of a parade, is that a “tangible benefit”? What exactly *is* a tangible benefit?
