9th Circuit overturns portion of old Stolen Valor law

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9th Circuit overturns portion of old Stolen Valor law

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.  

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 affect 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.

For the REALLY SHORT synopsis of the decision, this is from the preface to the case, and explains what they found.  It's a little lighter on legal speak, but still somewhat difficult for layman.

The court held that this narrowing interpretation diminished the extent to which § 704(a) endangered First Amendment values, but the statute lacked limiting features such as a requirement of proof of specific harm to identifiable victims. Accordingly, under Justice Breyer’s test, § 704(a) created a significant risk of First Amendment harm. The en banc court concluded that the government had a compelling interest in enacting § 704(a), but there were other, less restrictive ways of achieving those objectives.

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.


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We fought for it. But we did not fight for the right of someone to steal what we fought for.

I served in Viet Nam and have always been proud of the medals I was awarded. It galls me to have these folks who don't deserve certain medals sit around and claim they were awarded things that they were not.

I wonder if the judge would object if - under freedom of expression - I claimed to be a judge, or a prosecutor, pinned on a badge and paraded around the courthouse ...... bet he would find a reason to challenge me.

I would really like to see that one done, Bert. It sickens me to see people who never even served try to strip our heroes of their deserved honor and respect. I am a Vietnam Vet, and lost friends there, relatives in Korea and WWII. What would have happened if someone was caught wearing undeserved medals in say, 1945?

The bigger the war story and the more metals they won, the more likely it is fertalizer. Some got metals they really did not earn and some eaned them and diidn't get them where I was at. I done two holidays in Vietnam that lasted from 1968 to july 1970. I do not feel anyone owes me for doing what was required but I do feel for a person to claim credit for what I was shot for and a number of friends died for is a sorry act! Liberals have no limits to how low they will go!!! ( Hillary landed under fire etc.)

Over the years we all add a little to our exploits. But to claim medals not earned is going to far and public ridicule is deeserved in this case. It should be a crime to wear medals not earned.

The flip side of this decision is that all are free to publicize (and I hope they do) the perfidious conduct of this man.

So that's who that is in the photo. Soon as I saw the photo I knew he was a fraud. No self respecting Grn. B would wear his berry like that. Looks like a Polish Para. No offense to the Pol's. Since they have not done reverse photography since the Civil War then there's only one reason the U.S. ARMY is on the right side of the shirt. What's that ribbon around his neck anyway? I'm not familiar with it. What a Dork.

There is a reason we refer to this court and the 9th Circus Court.

This should come under a Military Court. Maybe the guy should have proven he was the President of the U.S., then some one would have noticed sooner.

Another piece of the problem is that there are companies out there who sell military medals to anyone who wants them, will sell the certificates and blank DD-214s, and even make up totally fictitious medals.They should be charged with fraud as well for every case of stolen valor where one of those who are convicted got the medal or certificate from them.

I would rather go without any ribbons than to wear even one ribbon that was not officially approved. What ever happened to Integity and that goes for the Courts, also, especially the attorneys!

That's ridiculous! That's terrible! Thanks to the 9th Circuit court for absolutely nothing. I guess the Constitution says also that we can LIE, PREVARICATE, FABRICATE and FALSIFY to get what we want. I can see now that 9th Circuit court has NO HONOR!

That's ridiculous! That's terrible! Thanks to the 9th Circuit court for absolutely nothing. I guess the Constitution says also that we can LIE, PREVARICATE, FABRICATE and FALSIFY to get what we want. I can see now that 9th Circuit court has NO HONOR!

That's Robert Guidi of New Jersey pictured. He got to see the inside of a jail cell for his perpetration.

How would the Supreme Court hold if the situation were that I were fraudulently declare myself to be a member of that body, and go around wearing a robe like theirs, and always introduce myself or arrange to have myself introduced as "Mr. Justice Qualls", so that I could wrongfully receive some of the honors, prestige, and benefits that accrue to the actual members of that august group? Would they just find me to be a harmless liar who wasn't actually hurting anyone, and that I had a "First Amendment right of free expression" to do thusly?


In 49 years and 4 hours I received my 3rd Purple Heart. In Korea or WW11 I would have died this evening at midnight. 14 or 15 other Marines from K and M Co died that night. In the SF Bay Area there are a lot of false claims. If you shot one of those men I would love to be on the jury...Not Guilty for reasons of patriotic duty.

Once again the 9th Circuit Court shows just how out of touch they are with reality. Medals are awarded for deeds accomplished that not everyone does. To try to hop on someone else's accomplishments is a definite crime.

as a former Marine from 1966-1969 and a nam vet 68-69 I wear only the ribbons I earned lost to many friends to do something not to honor my brother,s who didn,t make it home Semper Fi.

i find these comments rather strange disturbing and just plain ignorant (def: being uninformed)
how can a fake a poser wearing ill gotten uniform, medals effect or affect YOU? OR BETTER QUESTION how does their actions affect effect the government in awarding these precious medals to the righteous person actually performed the duties subscribed and proscribed upon them?
in the above mentioned highlighted text the author described how these poser-fakes can and do actually diminish or prohibit or harm the government in the award presentation of accommodations, awards, and issue citations? WOW, i did not realize that a few could affect or effect the massive government and military this way? Maybe I should be a poser (which i am not) that way i could affect effect those in the command chain, yeah right fat chance.
to all those who served with or without distinction I SALUTE YOU, oh btw the CMO cermony made this old man cry and he did serve with EXTREME HONOR
so this old man will go quietly into that good night

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News from the World of Military and Veterans Issues. Iraq and A-Stan in parenthesis reflects that the author is currently deployed to that theater.