En Banc Reversal for Wearing Unearned Medals

(CN) - Free speech shields a Marine Corps veteran from liability for wearing a Purple Heart and Silver Star that he didn't earn, the en banc Ninth Circuit ruled Monday.

Elven Swisher, who served three years in the Marines beginning in 1954, faced charges in 2007 that he made false statements to the U.S. Department of Veterans Affairs, forged discharge documents to obtain benefits, stole government funds and wore "unauthorized military medals."

During a one-week trial in Idaho, the government pointed to $2,366 a month in federal benefits that Swisher obtained in 2001 for post-traumatic stress disorder.

Swisher's application for benefits told of his supposed participation in a secret combat operation in 1957 that involved sending Swisher and 130 other Marines "by helicopter to an unknown location in China or North Korea."

On that mission, Swisher claimed that he suffered grave injuries in a firefight. He claimed to have been awarded the Purple Heart and other medals but told to keep this a secret.

But prosecutors noted that this off-the-books mission never actually happened.

Marine Corps officials testified at the trial that there was no record of Swisher having received any injuries or medals during his service.

Prosecutors also presented a photograph that showed "Swisher wearing the Silver Star, the Navy and Marine Corps Ribbon, Purple Heart, Navy and Marine Corps Commendation Medal with a Bronze V, and the UMC Expeditionary Medal," according to the Ninth Circuit's ruling.

After the jury convicted on all counts, Swisher was sentenced to one year behind bars and three years of supervised released.

Case law in this area would soon come into question, however, when the Ninth Circuit struck down the Stolen Valor Act as unconstitutional in 2010.

In U.S. v. Alvarez, the federal appeals court had been looking at the case of someone who lied about serving with the Marines and winning the Medal of Honor.

The Supreme Court upheld the finding two years later, finding that "permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable."

Swisher presented similar arguments, but U.S. District Judge B. Lynn Winmill in Boise denied his petition.

Though a three-judge panel of the Ninth Circuit affirmed in 2014, the federal appeals court agreed to rehear the case en banc and reversed 8-3 on Monday, seeing no difference between pinning a lie to one's chest and speaking the same lie.

"Wearing a medal communicates that the wearer was awarded that medal and is entitled to the nation's recognition and gratitude 'for acts of heroism and sacrifice in military service,'" Judge Sandra Ikuta wrote for the majority in San Francisco. "Wearing a medal without authorization, therefore, generally communicates the false message that the wearer is entitled to such recognition and gratitude. Because wearing a medal is symbolic speech, and § 704(a) precludes the unauthorized wearing of a medal, we conclude that § 704(a) regulates speech."

Ikuta said the record does not show whether Swisher's deceitful conduct hurt anyone or deceived someone into following a course of action he would not have otherwise pursued.

Undermining claims that Swisher misappropriated government property by wearing of unearned medals is the fact that military medals are freely available for purchase.

"We see no basis for [concluding] that wearing a medal is more probative than speaking a lie," Ikuta said.

Judges N. Randy Smith and Paul Watford joined a dissent by Judge Jay Bybee. "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," Bybee said. "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."

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