Wearing unearned medal can be a crime; free-speech claim rejected

Lying about receiving a military medal is constitutionally protected, but there’s no right to carry the lie a step further by wearing a combat decoration that hasn’t been earned, a federal appeals court said Wednesday.

The difference, said a divided panel of the Ninth U.S. Circuit Court of Appeals, is that lying is speech, but wearing a medal is conduct.

The decision in an Idaho case returned the court to a controversy that led to a 2012 Supreme Court ruling and a rewriting of the law by Congress in 2013.

The defendant, Elven Swisher, served in the Marine Corps from 1954 to 1957. In 2001 he applied for disability benefits, claiming he had been wounded in a secret mission to North Korea in 1955, a year after the Korean War ended. The Department of Veterans Affairsgranted the request in 2004 after Swisher submitted what appeared to be a military document saying he had received a Silver Star and other medals for his actions.

But the VA learned in 2006 that the document was forged and ordered Swisher to repay the benefits. He was later convicted and sentenced to a year in prison on charges that included stealing government funds and wearing unauthorized medals at a veterans’ event.

The appeals court upheld Swisher’s conviction in 2009, but he filed a new appeal after the court, in a 2010 case, struck down a federal law that made it a crime to lie about earning military decorations. The U.S. Supreme Court, in a 6-3 ruling, agreed with the Ninth Circuit in June 2012 that the law violated freedom of speech. But three months later, in another case, a different Ninth Circuit panel upheld the ban on wearing unearned military medals.

Congress has since rewritten the law to prohibit lying about military honors for financial gain, while repealing the ban on wearing medals one hasn’t earned. But the repeal didn’t help Swisher, whose conviction under the former law was upheld Wednesday.

As the appeals court’s 2012 decision concluded, the law under which Swisher was convicted "regulated harmful conduct” and "was unrelated to the suppression of a particular viewpoint,” Judge Sandra Ikuta said in the court’s ruling. She rejected defense arguments that the law could be used against innocent partygoers and actors, saying it had been interpreted to punish only those who had an intent to deceive the public.

In a separate opinion, Judge A. Wallace Tashima said he was bound to follow the court’s 2012 ruling but disagreed with it. While Swisher was separately charged with defrauding the government, Tashima said, he was not accused of wearing the uniform for financial benefit, and "was convicted because he told a lie” — an act that courts have found to be constitutionally protected.