Court: Wearing unearned military medal is protected by Constitution

By Bob Egelko | San Francisco Chronicle | Published: January 12, 2016

SAN FRANCISCO (Tribune News Service) — A federal law that prohibited people from wearing military medals they didn’t earn is unconstitutional for the same reason as a law that made it a crime to lie about earning a medal, a federal appeals court ruled Monday: It’s a falsehood that is protected by freedom of speech.

In an 8-3 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said the now-repealed law against wearing unearned military decorations was a ban on a type of “symbolic speech.” Although the government can forbid falsehoods that cause tangible harm, like fraud or perjury, the Constitution restricts government regulation of expression based solely on its content, the court said.

“Suppressing a symbolic communication threatens the same First Amendment harm as suppressing a written communication,” Judge Sandra Ikuta said in the majority opinion. “Wearing a medal has no purpose other than to communicate a message.”

She cited the U.S. Supreme Court’s ruling in 2012 striking down a related law that prohibited lying about receiving a military honor. That 5-4 decision said the law punished speech without requiring proof of intent to defraud, and that the government had other ways of protecting the public from deception — for example, an easily accessible database of legitimate medal recipients.

A year after that ruling, Congress enacted a revised law that makes it a crime to lie about military honors, but only if the liar intended to profit or defraud someone. The new law does not punish someone solely for wearing an unearned medal.

Dissenters from Monday’s ruling said falsely wearing medals is conduct, not speech, and is potentially more harmful than lying about them.

“The wearing of an unearned medal dilutes the message conveyed by the medal itself,” making the public less likely to accept the legitimacy of any medal, said Judge Jay Bybee, who was joined by Judges N. Randy Smith and Paul Watford. “The lie here is told in a more effective way.”

The ruling came in the case of Elven Swisher, an Idaho man who served in the Marines from 1954 to 1957. In 2001, Swisher filed a claim for Post-Traumatic Stress Disorder benefits, saying he had been wounded and traumatized in a secret combat mission in North Korea in 1955, two years after the Korean War ended. He said an unnamed captain had awarded him a Purple Heart and told him he was entitled to other service medals.

After initially rejecting his claim, the government reversed itself and granted Swisher benefits in 2004 for PTSD from the secret mission. The government canceled the benefits in 2006 after concluding that Swisher’s claims about the mission, the harm he suffered and the medals he earned were fraudulent.

In the meantime, Swisher wore his unearned Purple Heart when he testified as a prosecution witness against David Hinkson, convicted in 2005 of plotting to murder three people, including a federal judge. Despite learning of Swisher’s apparent deception, the appeals court later upheld Hinkson’s convictions.

Swisher, who has never recanted his claims, was convicted of the false-medal charge and three other crimes and has served his one-year sentence. His lawyer, Joseph Horras, said Monday’s ruling was a worthwhile expansion of First Amendment protections.


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A Purple Heart medal.
TNS file photo


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