United States v. Elven Swisher , 811 F.3d 299 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-35796
Plaintiff-Appellee,
D.C. Nos.
v. 1:09-cv-00055-BLW
1:07-cr-00182-BLW-1
ELVEN JOE SWISHER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted En Banc
September 9, 2015—San Francisco, California
Filed January 11, 2016
Before: Sidney R. Thomas, Chief Judge and Stephen
Reinhardt, Alex Kozinski, M. Margaret McKeown, Marsha
S. Berzon, Richard R. Clifton, Jay S. Bybee, Sandra S.
Ikuta, N. Randy Smith, Jacqueline H. Nguyen and Paul J.
Watford, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge Bybee
2 UNITED STATES V. SWISHER
SUMMARY*
Criminal Law
Reversing the denial of a motion under 28 U.S.C. § 2255,
the en banc court held that the reasoning in United States v.
Alvarez, 132 S. Ct. 2537 (2012), invalidating on First
Amendment grounds a statute prohibiting lying about being
awarded military medals, also applied to 18 U.S.C. § 704(a)
(2002 ed.), a provision of the Stolen Valor Act that previously
criminalized the unauthorized wearing of such medals.
The en banc court held that the defendant’s challenge to
his conviction under § 704(a) was not barred by Teague v.
Lane, 489 U.S. 288 (1989), because Alvarez was a decision
holding that a substantive federal statute did not reach certain
conduct, and thus could be applied retroactively. In addition,
the government waived a procedural default defense based on
the defendant’s failure to raise his constitutional claim at trial
or on direct appeal.
The en banc court held that § 704(a) regulated speech
because wearing a medal conveys a message. The court held
that § 704(a) was a content-based restriction of false symbolic
speech because its purpose was to stop a particular message:
the misappropriation or distortion of the message of valor
conveyed by a medal. Accordingly, the tests applicable to
content-neutral regulations did not apply.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SWISHER 3
Considering the intermediate-scrutiny standard set forth
in Justice Breyer’s concurring opinion in Alvarez, the en banc
court interpreted § 704(a) as proscribing unauthorized
persons from wearing military medals for the purpose of
falsely communicating that they have been awarded such
medals. 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.
The en banc court concluded that § 704(a) failed Justice
Breyer’s intermediate scrutiny test, and therefore also failed
under the Alvarez plurality’s exacting scrutiny test.
The en banc court overruled United States v. Perelman,
695 F.3d 866 (9th Cir. 2012), to the extent inconsistent with
this opinion.
Dissenting, Judge Bybee, joined by Judges N.R. Smith
and Watford, wrote that the defendant’s conduct was not a
form of speech entitled to the same protection as the speech
in Alvarez, and that he would uphold the constitutionality of
§ 704(a) under Justice Breyer’s intermediate-scrutiny
analysis.
4 UNITED STATES V. SWISHER
COUNSEL
Joseph Theodore Horras, Boise, Idaho, for Defendant-
Appellant.
John M. Pellettieri (argued), Attorney, Appellate Section;
Leslie R. Caldwell, Assistant Attorney General; Sung-Hee
Suh, Deputy Assistant Attorney General, United States
Department of Justice, Washington, D.C., for Plaintiff-
Appellee.
OPINION
IKUTA, Circuit Judge:
This appeal requires us to determine whether the
reasoning in United States v. Alvarez, 132 S. Ct. 2537 (2012),
which invalidated a statute prohibiting lying about being
awarded military medals, see 18 U.S.C. § 704(b) (2011 ed.),1
also applies to a statute criminalizing the unauthorized
1
The then-applicable provision read:
Whoever falsely represents himself or herself, verbally
or in writing, to have been awarded any decoration or
medal authorized by Congress for the Armed Forces of
the United States . . . shall be fined under this title,
imprisoned not more than six months, or both.
18 U.S.C. § 704(b) (2011 ed.).
UNITED STATES V. SWISHER 5
wearing of such medals, see 18 U.S.C. § 704(a) (2006 ed.).2
We hold that it does, and therefore reverse the district court.3
2
The provision read in full:
Whoever knowingly wears, purchases, attempts to
purchase, solicits for purchase, mails, ships, imports,
exports, produces blank certificates of receipt for,
manufactures, sells, attempts to sell, advertises for sale,
trades, barters, or exchanges for anything of value any
decoration or medal authorized by Congress for the
armed forces of the United States, or any of the service
medals or badges awarded to the members of such
forces, or the ribbon, button, or rosette of any such
badge, decoration or medal, or any colorable imitation
thereof, except when authorized under regulations made
pursuant to law, shall be fined under this title or
imprisoned not more than six months, or both.
18 U.S.C. § 704(a) (2002 ed.).
Before we agreed to rehear this case en banc, § 704(a) was amended
to remove the word “wears” from the list of prohibited actions with
respect to decorations and medals authorized by Congress. See 18 U.S.C.
§ 704(a) (2013 ed.). That is, § 704(a) no longer prohibits the conduct for
which Swisher was convicted. Because Swisher was convicted under the
prior version of the statute, however, the case is not moot. See Carafas v.
LaVallee, 391 U.S. 234, 239 (1968) (holding that a challenge to a criminal
conviction is not moot when the defendant continues to face adverse
consequences from the conviction).
3
Swisher’s other claims were previously addressed in an unpublished
memorandum disposition. United States v. Swisher, 585 F. App’x 605
(9th Cir. 2014). We agree with the three-judge panel’s reasons for
rejecting Swisher’s other arguments, and we adopt them as our own.
6 UNITED STATES V. SWISHER
I
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.”
UNITED STATES V. SWISHER 7
After reviewing Swisher’s application for PTSD benefits
and the accompanying narrative, the VA denied the claim
because Swisher failed to provide corroborating evidence
beyond his own statement that his PTSD was service
connected.
Swisher appealed the denial and submitted a photocopy
of a second DD-214, which included the typewritten
comment that “[t]his document replaces the previously issued
transfer document” and “[c]hanges and additions have been
verified by Command.” The new form stated that Swisher
had received the Silver Star, Navy and Marine Corps Medal
with Gold Star, Purple Heart, and Navy and Marine Corps
Commendation Medal with Bronze “V.” Based on this
information, the VA reversed its previous decision in July
2004, ruled that Swisher’s PTSD was a compensable
disability, and granted Swisher a total of $2,366 a month in
benefits.4
About a year later, the VA received information from the
military personnel division that the replacement DD-214 was
fraudulent. In July 2006, after further investigation
confirmed that the DD-214 was forged, the VA reversed its
determination that the PTSD was service connected and
required Swisher to pay back the PTSD benefits that he had
received.
4
Swisher’s claim that he was awarded a Purple Heart became a key
issue in a criminal trial involving defendant David Hinkson, who was on
trial for solicitation of murder. See United States v. Hinkson, 585 F.3d
1247, 1254–57 (9th Cir. 2009) (en banc). The parties agreed that any
evidence related to the Hinkson trial would be excluded from Swisher’s
trial.
8 UNITED STATES V. SWISHER
In July 2007, a grand jury indicted Swisher for four
violations of federal law: (1) wearing unauthorized military
medals in violation of 18 U.S.C. § 704(a); (2) making false
statements to the VA regarding his military service,
disabilities, and honors, in an effort to obtain benefits in
violation of 18 U.S.C. § 1001(a)(2); (3) forging or altering his
certificate of discharge, also in an effort to obtain benefits, in
violation of 18 U.S.C. § 1001(a)(3); and (4) theft of
government funds, in violation of 18 U.S.C. § 641.
During the one-week trial, Lieutenant Colonel Elaine
Hensen, the assistant head for the Military Awards Branch at
Headquarters Marine Corps, discussed her review of the
Marine Corps files and her determination that the files
contained no record of Swisher receiving or being awarded
the Purple Heart or any other medal or award. The
government also introduced Exhibit 67, a photograph
showing Swisher and another man in Marine Corps League
uniforms.5 In the photograph, Swisher is wearing several
military medals and awards, and shaking hands with a person
in civilian garb. The parties stipulated that the photograph
was authentic. Lt. Col. Henson testified that the photograph
showed Swisher wearing the Silver Star, Navy and Marine
Corps Ribbon, Purple Heart, Navy and Marine Corps
Commendation Medal with a Bronze “V,” and UMC
Expeditionary Medal. She reiterated that there was nothing
“in the United States Marine Corps’ files . . . to substantiate
Mr. Swisher’s entitlement to wear any of those awards.” In
addition, Jeffrey Shattuck, the head of the Records
Correspondence Section for the Personnel Management
5
The Marine Corps League is a Congressionally chartered veterans
organization that has its own Marine-related uniforms. See 36 U.S.C.
§§ 140101–04.
UNITED STATES V. SWISHER 9
Support Branch of the Marine Corps, outlined in detail the
numerous indicia of fraud on Swisher’s replacement DD-214
that Swisher had used to verify his awards.
At the conclusion of the trial, the jury found Swisher
guilty on all counts. The court imposed a below-guidelines
sentence of 12 months and one day, with a three-year term of
supervised release. We affirmed Swisher’s conviction and
sentence on appeal. United States v. Swisher, 360 F. App’x
784 (9th Cir. 2009).
Swisher subsequently challenged his conviction through
a motion under 18 U.S.C. § 2255 and claimed that his
conviction for wearing the medals violated the First
Amendment under the reasoning of the Ninth Circuit’s
intervening decision in United States v. Alvarez, 617 F.3d
1198 (9th Cir. 2010). The district court denied the motion and
an appeal followed. See United States v. Swisher, 790 F.
Supp. 2d 1215, 1245–46 (D. Idaho 2011); United States v.
Swisher, 771 F.3d 514 (9th Cir. 2014).
While Swisher’s appeal was pending, the Supreme Court
affirmed our decision in Alvarez, and held that § 704(b)
unconstitutionally infringes upon speech protected by the
First Amendment. See United States v. Alvarez, 132 S. Ct.
2537 (2012). Nevertheless, we subsequently distinguished
Alvarez, and held that § 704(a) survived First Amendment
scrutiny. United States v. Perelman, 695 F.3d 866, 871–72
(9th Cir. 2012) (as amended). Bound by Perelman, a three-
judge panel rejected Swisher’s constitutional challenge to
§ 704(a). Swisher, 771 F.3d at 524. In his petition for
rehearing, Swisher argued that § 704(a) was unconstitutional
under the reasoning set forth in Alvarez and asked us to
10 UNITED STATES V. SWISHER
overrule our contrary decision in Perelman. We took the case
en banc to reconsider this issue.
II
We review de novo a district court’s denial of relief to a
federal prisoner under 28 U.S.C. § 2255. United States v.
Aguirre-Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2010).
Section 2255 is a substitute for habeas corpus relief for
federal prisoners, see Davis v. United States, 417 U.S. 333,
343 (1974), and allows a petitioner to file a motion to
“vacate, set aside or correct” the petitioner’s conviction or
sentence “upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or
that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack,” 28 U.S.C. § 2255(a).
In evaluating a § 2255 motion, we are not constrained by
28 U.S.C. § 2254(d), which precludes federal courts from
granting habeas relief to a state prisoner with regard to any
claim adjudicated on the merits unless the adjudication
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established” Supreme
Court precedent, or “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” Section
2255 does not have a similar restriction on review of claims
by federal prisoners.
Although Swisher’s challenge to his conviction is based
on a Supreme Court decision decided after his conviction
became final, we are not barred from considering his claim.
UNITED STATES V. SWISHER 11
Teague v. Lane, 489 U.S. 288 (1989), generally precludes the
application of “new constitutional rules of criminal
procedure” to cases that “have become final before the new
rules are announced.” Bousley v. United States, 523 U.S.
614, 619–20 (1998) (internal quotation marks omitted).
While Teague is applicable in the § 2255 context, see United
States v. Sanchez-Cervantes, 282 F.3d 664, 667–68 (9th Cir.
2002), Teague does not bar the retroactive application of
decisions holding “that a substantive federal criminal statute
does not reach certain conduct,” Bousley, 523 U.S. at 620.
Alvarez is a substantive decision of that sort.
Nor does Swisher’s failure to raise his constitutional
claim at trial or on direct appeal prevent us from reviewing
his claim. Although federal prisoners are generally barred
from raising claims on collateral review that they could have
raised on direct appeal, see Bousley, 523 U.S. at 621, the
government can waive a procedural default defense by failing
to raise it, see United States v. Barron, 172 F.3d 1153,
1156–57 (9th Cir. 1999) (en banc). Here, the government
failed to raise the procedural default on appeal and does not
dispute that it is waived.
III
To address Swisher’s arguments, we begin with a review
of the reasoning in Alvarez and our subsequent interpretation
of Alvarez in Perelman.
A
Alvarez considered the appeal of a defendant who was
convicted under § 704(b) for introducing himself at a public
meeting with a series of lies, including the false statement
12 UNITED STATES V. SWISHER
that “[b]ack in 1987, I was awarded the Congressional Medal
of Honor.” 132 S. Ct. at 2542 (Kennedy, J., plurality
opinion). The defendant challenged his conviction on the
ground that § 704(b) was invalid under the First Amendment.
Id. He won on appeal, and the government petitioned for
certiorari. Id.
Because § 704(b) criminalized specific statements based
on their falsity, the government did not dispute that the statute
imposed a content-based restriction on speech. Rather, the
government argued that false statements had “no First
Amendment value in themselves,” id. at 2543, and so were
protected “only to the extent needed to avoid chilling fully
protected speech,” id. The Supreme Court rejected the
government’s argument, and agreed that § 704(b) violated the
First Amendment. Id. The Court could not, however, agree
on the appropriate level of scrutiny for the sort of lies targeted
by § 704(b). Id. at 2548 (Kennedy, J., plurality opinion),
2552 (Breyer, J., concurring).
Justice Kennedy, writing for four Justices, held that
§ 704(b) was subject to the “most exacting scrutiny.” Id. at
2548 (Kennedy, J., plurality opinion) (quoting Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994)). In reaching this
conclusion, the plurality rejected the government’s argument
that false statements had “no First Amendment value” and
merited protection “only to the extent needed to avoid
chilling fully protected speech.” Id. at 2543. While
conceding that “content-based restrictions on speech have
been permitted” for certain historical categories of speech, id.
at 2544, the plurality concluded that the “Government has not
demonstrated that false statements generally should constitute
a new category of unprotected speech.” Id. at 2547. Nor did
the plurality agree with the government’s argument that
UNITED STATES V. SWISHER 13
§ 704(b) was analogous to regulations on false speech “that
courts generally have found permissible,” such as laws
prohibiting a false statement made to a Government official,
laws punishing perjury, and prohibitions on falsely claiming
to speak on behalf of the government. Id. at 2545–46. These
examples, the plurality determined, were confined to
circumscribed contexts. Id. at 2546. Certain statutes
prohibiting impersonation of a government official, for
instance, “protect the integrity of Government processes,
quite apart from merely restricting false speech,” and may be
limited to “maintain[ing] the general good repute and dignity
of . . . government . . . service itself.” Id. at 2546 (quoting
United States v. Lepowitch, 318 U.S. 702, 704 (1943)
(alterations in original)). The plurality concluded that these
types of permissible speech regulations did not encompass the
“sweeping, quite unprecedented reach” of § 704(b). Id. at
2547.
Having concluded that false statements of the sort
proscribed in § 704(b) constituted protected speech, the
plurality subjected the statute to “exacting scrutiny,” which
required that (1) the government have a compelling interest;
(2) “the Government’s chosen restriction on the speech at
issue be actually necessary to achieve its interest,” and
(3) “[t]here must be a direct causal link between the
restriction imposed and the injury to be prevented.” Id. at
2549 (internal quotation marks omitted). Applying this test
to § 704(b), the plurality held that the statute served a
compelling government interest in protecting “the integrity of
the military honors system,” id. at 2548, but the statute’s
restriction was not “actually necessary” because the
government’s interest could be satisfied by counterspeech,
including a “Government-created database [that] could list
Congressional Medal of Honor winners.” Id. at 2549–51.
14 UNITED STATES V. SWISHER
Further, the government had not shown “[t]he link between
the Government’s interest in protecting the integrity of the
military honors system and the Act’s restriction on the false
claims of liars,” because it failed to support “its claim that the
public’s general perception of military awards is diluted by
false claims.” Id. at 2549. Accordingly, the plurality
concluded that § 704(b) violated the First Amendment. Id. at
2551.
Justice Breyer concurred in the judgment on the ground
that § 704(b) “works disproportionate constitutional harm”
under his formulation of intermediate scrutiny. Id. at 2556
(Breyer, J., concurring). In his concurrence, Justice Breyer
stated that to determine whether a statute violates the First
Amendment, the Court generally examines “the fit between
statutory ends and means.” Id. at 2551. In conducting a
review of a governmental enactment under this standard, a
court must (1) take “account of the seriousness of the
speech-related harm the provision will likely cause”;
(2) consider “the nature and importance of the provision’s
countervailing objectives,” and (3) weigh “the extent to
which the provision will tend to achieve those objectives, and
whether there are other, less restrictive ways of doing so.” Id.
In applying this test to § 704(b), Justice Breyer first
considered the “speech-related harm” caused by this
enactment. Id. at 2551–52. Justice Breyer interpreted
§ 704(b) as “criminalizing only false factual statements made
with knowledge of their falsity and with the intent that they
be taken as true.” Id. at 2552–53. He acknowledged that
regulation of false statements “endangers First Amendment
values” less than other restrictions, id. at 2553, and noted that
“many statutes and common-law doctrines make the utterance
of certain kinds of false statements unlawful,” id. at 2253–54.
 UNITED STATES V. SWISHER 15
But in Justice Breyer’s view, such statutes and doctrines work
less speech-related harm because they typically “narrow the
statute to a subset of lies where specific harm is more likely
to occur.” Id. at 2555. For instance, laws punishing fraud,
defamation, or intentional infliction of emotional distress
generally “requir[e] proof of specific harm to identifiable
victims,” and statutes prohibiting the impersonation of a
public official “may require a showing that, for example,
someone was deceived into following a ‘course [of action] he
would not have pursued but for the deceitful conduct.’” Id.
at 2554 (alteration in original) (quoting Lepowitch, 318 U.S.
at 704). Other similar laws specify “that the lies be made in
contexts in which a tangible harm to others is especially
likely to occur,” such as laws punishing perjury or lying to a
government official, or trademark statutes which are “focused
upon commercial and promotional activities that are likely to
dilute the value of a mark.” Id. Finally, statutes prohibiting
false claims of terrorist attacks or other lies about crimes or
catastrophes, are limited to false statements that “are
particularly likely to produce harm,” and generally require
proof of foreseeability of substantial public harm. Id.
According to Justice Breyer, § 704(b) lacked these
narrowing features because it was not limited to a subset of
lies causing specific harm to identifiable victims, or to a
specific context where foreseeable harm to others is likely to
occur. Id. at 2555–56. Because “[f]alse factual statements
can serve useful human objectives” in a variety of contexts
and “the threat of criminal prosecution” could have a chilling
effect and could encourage or permit selective prosecution for
political ends, id. at 2553, Justice Breyer concluded that
§ 704(b) “risks significant First Amendment harm,” id. at
2555.
16 UNITED STATES V. SWISHER
Having reached this conclusion, Justice Breyer then
turned to consider “the nature and importance of the
provision’s countervailing objectives,” id. at 2551, and
concluded that § 704(b) has a “substantial countervailing
objective” because “[i]t seeks to protect the interests of those
who have sacrificed their health and life for their country,”
and is aimed at avoiding dilution of “the country’s
recognition of that sacrifice in the form of military honors,”
id. at 2555.
Finally, Justice Breyer turned to his third prong,
consideration of “the extent to which the provision will tend
to achieve those objectives, and whether there are other, less
restrictive ways of doing so.” Id. at 2551. Here, Justice
Breyer concluded that it was “possible substantially to
achieve the Government’s objective in less burdensome
ways.” Id. at 2555. According to Justice Breyer, Congress
could enact a more limited statute that adopted some of the
narrowing strategies used in other statutes and common law
doctrines punishing false speech, such as (1) requiring a
showing that the false statements caused a specific harm,
(2) requiring that the lies be made in a context “where such
lies are most likely to cause harm,” or (3) focusing on the
more important military awards that Congress most values.
Id. at 2555–56. Such a more narrowly tailored statute could
be combined with “information-disseminating devices,” such
as “an accurate, publicly available register of military awards,
easily obtainable by political opponents.” Id. at 2556.
Because the government failed to explain why a more limited
statute along with a method for providing more accurate
information would not “significantly reduce the threat of First
Amendment harm while permitting the statute to achieve its
important protective objective,” Justice Breyer concluded that
“the statute as presently drafted works disproportionate
UNITED STATES V. SWISHER 17
constitutional harm” and “so violates the First Amendment.”
Id.
B
In analyzing the constitutionality of § 704(b), Alvarez did
not directly address the closely related section of the Stolen
Valor Act, § 704(a), which is before us here. We first had
occasion to consider a constitutional challenge to that section
in United States v. Perelman, decided two months after the
Supreme Court issued its opinion in Alvarez. 695 F.3d 866.
Before considering the applicability of Alvarez, Perelman
considered the defendant’s overbreadth challenge to § 704(a).
Perelman rejected this argument by construing the statute
narrowly as criminalizing only the unauthorized wearing of
medals “when the wearer intends to deceive.” Id. at 870
(emphasis omitted).
Perelman then considered whether § 704(a), as construed,
would survive First Amendment scrutiny. Although the
Alvarez plurality had applied “exacting scrutiny” to § 704(b),
Perelman did not use this analytic framework because
§ 704(a) did not criminalize speech, but rather criminalized
“the harmful conduct of wearing a medal without
authorization and with intent to deceive.” Id. at 871.
Perelman reasoned that “[e]ven if we assume that the
intentionally deceptive wearing of a medal contains an
expressive element—the false statement that ‘I received a
medal’—the distinction between pure speech and conduct
that has an expressive element separates this case from
Alvarez.” Id. Because, in Perelman’s view, § 704(a)
criminalized conduct, it was more akin to the impersonation
statutes discussed in Alvarez, or statutes prohibiting “the
18 UNITED STATES V. SWISHER
unauthorized wearing of military uniforms.” Id. at 872
(citing Schacht v. United States, 398 U.S. 58 (1970)).
Presumably because of its determination that § 704(a)
primarily criminalized conduct, but without further analysis,
Perelman applied the test set forth in United States v.
O’Brien, 391 U.S. 367, 377 (1968) (upholding the conviction
of a draft protester under a content-neutral law prohibiting
knowing destruction of draft cards). 695 F.3d at 872.
Applying O’Brien’s three-part test, Perelman first held that
the government had “a compelling interest in ‘preserving the
integrity of its system of honoring our military men and
women for their service and, at times, their sacrifice.’” Id.
(quoting Alvarez, 617 F.3d at 1216). Second, the
government’s interests were “unrelated to the suppression of
free expression” because the statute “does not prevent the
expression of any particular message or viewpoint.” Id. And
third, “the incidental restriction on alleged First Amendment
freedoms” was “no greater than is essential to the furtherance
of that interest,” because, “even if § 704(a) is not the most
effective mechanism, in at least some measure it promotes the
goals of maintaining the integrity of the military’s medals and
preventing the fraudulent wearing of military medals.” Id. at
872–73. Accordingly, Perelman rejected the defendant’s
facial First Amendment challenge to § 704(a). Id. at 873.
IV
Perelman based its conclusion that § 704(a) did not
violate the First Amendment on two grounds. First,
Perelman distinguished between written or spoken speech on
the one hand and expressive conduct on the other. Id. at 871.
Second, Perelman implicitly determined that expressive
conduct is per se subject to scrutiny under the test set forth in
UNITED STATES V. SWISHER 19
O’Brien. Id. at 872. Our reconsideration of Perelman
requires us to review both these issues regarding the First
Amendment framework for analyzing communicative
conduct.
A
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. While “[t]he First Amendment literally forbids the
abridgment only of ‘speech,’” the Supreme Court has “long
recognized that its protection does not end at the spoken or
written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989).
A message “delivered by conduct that is intended to be
communicative and that, in context, would reasonably be
understood by the viewer to be communicative,” Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984),
is symbolic speech that falls “within the scope of the First and
Fourteenth Amendments.” Johnson, 491 U.S. at 404; see
also Nunez v. Davis, 169 F.3d 1222, 1226 (9th Cir. 1999)
(“Non-verbal conduct implicates the First Amendment when
it is intended to convey a ‘particularized message’ and the
likelihood is great that the message would be so understood.”
(quoting Johnson, 491 U.S. at 404)). For instance, “the
wearing of an armband for the purpose of expressing certain
views is the type of symbolic act that is within the Free
Speech Clause of the First Amendment” and is “closely akin
to ‘pure speech.’” Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503, 505 (1969). Similarly, the Court has
“recognized the expressive nature of . . . a sit-in by blacks in
a ‘whites only’ area to protest segregation,” Johnson,
491 U.S. at 404 (citing Brown v. Louisiana, 383 U.S. 131,
141–42 (1966)), and “of the wearing of American military
20 UNITED STATES V. SWISHER
uniforms in a dramatic presentation criticizing American
involvement in Vietnam,” id. (citing Schacht, 398 U.S. 58).
While the Court has rejected the notion that “an
apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct intends
thereby to express an idea,” O’Brien, 391 U.S. at 376, there
is no doubt that the use of recognized symbols, such as
emblems or flags, constitutes symbolic speech, Johnson,
491 U.S. at 404. “The use of an emblem or flag to symbolize
some system, idea, institution, or personality, is a short cut
from mind to mind,” and “a primitive but effective way of
communicating ideas.” W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 632 (1943); see also Anderson v. City of
Hermosa Beach, 621 F.3d 1051, 1061 (9th Cir. 2010)
(“Tattoos are generally composed of words, realistic or
abstract images, symbols, or a combination of these, all of
which are forms of pure expression that are entitled to full
First Amendment protection.”). In this context, the Court has
frequently recognized “the communicative nature of conduct”
relating to the American flag, which “as readily signifies this
Nation as does the combination of letters found in
‘America.’” Johnson, 491 U.S. at 405–06. Because “[t]he
very purpose of a national flag is to serve as a symbol of our
country,” id. at 405, such acts as attaching a peace sign to the
American flag, Spence v. Washington, 418 U.S. 405, 409–11
(1974), refusing to salute the flag, Barnette, 319 U.S. at
632–33, or burning the flag, Johnson, 491 U.S. at 405–06,
constitute symbolic speech that “may find shelter under the
First Amendment.” Id. at 405.6
6
The dissent’s contention that courts should analyze laws burdening
symbolic speech conveyed by a “physical emblem,” such as a flag or a
medal, differently than they analyze laws burdening oral or written speech,
UNITED STATES V. SWISHER 21
In adjudicating a First Amendment challenge to a
government enactment that regulates speech, the Supreme
Court considers whether the enactment is content-based or
content-neutral. See Reed v. Town of Gilbert, 135 S. Ct.
2218, 2226–27 (2015). This threshold inquiry is the same for
symbolic speech as it is for enactments that regulate spoken
or written words. See Johnson, 491 U.S. at 403 (holding that
if the conduct at issue is communicative in nature, the Court
must first determine “whether the State’s regulation is related
to the suppression of free expression”). Even where an
enactment “contains no explicit content-based limitation on
the scope of prohibited conduct,” United States v. Eichman,
496 U.S. 310, 315 (1990), a court must consider whether the
law “suppresses expression out of concern for its likely
communicative impact,” id. at 317. See also Nordyke v.
King, 319 F.3d 1185, 1189–90 (9th Cir. 2003) (rejecting a
First Amendment challenge to an ordinance barring the
possession of firearms on County-owned property because it
was not aimed at the communicative impact of firearm
possession).
If the purpose of a law regulating conduct is aimed at the
conduct itself, rather than at the message conveyed by that
conduct, the regulation is subject to the lesser scrutiny given
to content-neutral restrictions. Put differently, lesser scrutiny
applies if the government’s interest in such a regulation “is
unrelated to the suppression of free speech.” Clark, 468 U.S.
at 294. In such circumstances, and only in such
circumstances, the O’Brien test is applicable. See Doe v.
Reed, 586 F.3d 671, 678 (9th Cir. 2009) (assuming that
signing a referendum petition is expressive conduct subject to
Dis. op. at 39–40, is inconsistent with these precedents. Indeed, the
dissent cites no case supporting its views.
22 UNITED STATES V. SWISHER
the O’Brien test); Corales v. Bennet, 567 F.3d 554, 567 (9th
Cir. 2009) (analyzing “the school’s policy of disciplining
truancies and leaving campus without permission” under
O’Brien’s “intermediate scrutiny applied to content-neutral
rules of conduct.”). To pass the O’Brien test, however, the
regulation must be “narrowly drawn to further a substantial
governmental interest.” Clark, 468 U.S. at 294.7
On the other hand, where the government’s aim is to
regulate the message conveyed by expressive conduct, the
content-neutral O’Brien test is not applicable. Nor may it be
applied unless “the conduct itself may constitutionally be
regulated.” Id. As explained in Johnson, “[i]f the State’s
regulation is not related to expression, then the less stringent
standard we announced in United States v. O’Brien for
regulations of noncommunicative conduct controls,” but “[i]f
it is, then we are outside of O’Brien’s test” and the regulation
must survive “under a more demanding standard.” 491 U.S.
at 403; see also Spence, 418 U.S. at 412, 414 n.8 (concluding
that the state’s interest in “preserving the national flag as an
unalloyed symbol of our country” was directly related to
expression, and accordingly “the four-step analysis of United
States v. O’Brien is inapplicable”); Nordyke, 319 F.3d at 1189
(stating that if an ordinance barring the possession of firearms
on County property is “related to the suppression of free
expression” then a First Amendment challenge to the
ordinance must be analyzed under Johnson; if not, the
7
The test for “time, place, or manner restrictions” may also be
applicable to a content-neutral regulation of symbolic conduct. Clark,
468 U.S. at 293. There is, however, “little, if any, differen[ce]” between
the two tests. See Clark, 468 U.S. at 298; see also Vlasak v. Super. Ct. of
Cal., 329 F.3d 683, 691 (9th Cir. 2003) (noting that O’Brien is “nearly
identical to the time, place and manner test”). Because Perleman applied
O’Brien, we focus on the O’Brien standard.
UNITED STATES V. SWISHER 23
O’Brien test applies.). Accordingly, if a government
enactment is “directed at the communicative nature of
conduct” then it is content-based, and “must, like a law
directed at speech itself, be justified by the substantial
showing of need that the First Amendment requires.”
Johnson, 491 U.S. at 406 (emphasis omitted) (quoting Cmty.
for Creative Non-Violence v. Watt, 703 F.2d 586, 622–623
(D.C. Cir. 1983) (Scalia, J., dissenting), rev’d sub nom. Clark,
468 U.S. 288).
The Supreme Court has recently provided authoritative
direction for differentiating between content-neutral and
content-based enactments. See Reed, 135 S. Ct. at 2226–27.
Reed explained that “[g]overnment regulation of speech is
content based if a law applies to particular speech because of
the topic discussed or the idea or message expressed.” Id. at
2227. If “a regulation of speech ‘on its face’ draws
distinctions based on the message a speaker conveys,” it is a
content-based regulation. Id. Laws that are facially content-
neutral, but “cannot be justified without reference to the
content of the regulated speech, or that were adopted by the
government because of disagreement with the message [the
speech] conveys,” are also content-based and subject to
scrutiny under a higher standard. Id. (alteration in original)
(internal quotation marks and citation omitted). Government
regulations of symbolic speech frequently fall into this
second category of content-based prohibitions. For instance,
where a state prohibited burning the American flag because
it might lead people to believe that the flag does not stand for
the positive concepts of “nationhood and national unity,” the
Court was quick to conclude that such “concerns blossom
only when a person’s treatment of the flag communicates
some message, and thus are related to the suppression of free
expression.” Johnson, 491 U.S. at 410 (internal quotation
24 UNITED STATES V. SWISHER
marks omitted). Such a content-based regulation is “outside
of O’Brien’s test altogether.” Id.
Even if a challenged restriction is content-based, it is not
necessarily subject to strict scrutiny. Although “[c]ontent-
based regulations are presumptively invalid,” the Court “has
permitted restrictions upon the content of speech in a few
limited areas, which are of such slight social value as a step
to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and
morality.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382–83
(1992) (internal quotation marks omitted) (indicating that
obscenity, defamation, and fighting words fall within this
category). Both the plurality and concurring opinions in
Alvarez recognized the existence of “historical” and
traditional categories of content-based restrictions that are not
subject to strict scrutiny under the First Amendment and
which courts have generally found permissible. Alvarez,
132 S. Ct. at 2544 (Kennedy, J., plurality opinion) (explaining
that content-based restrictions on speech have been permitted
only for a “few historic and traditional categories” of speech,
including incitement, obscenity, defamation, speech integral
to criminal conduct, so-called “fighting words,” child
pornography, fraud, true threats, and “speech presenting some
grave and imminent threat the government has the power to
prevent”); id. at 2553–54 (Breyer, J., concurring) (internal
quotation marks omitted) (referencing additional “statutes
and common-law doctrines” that make “utterance of certain
kinds of false statements unlawful,” including torts involving
intentional infliction of emotional distress, lying to a
government official, false claims of terrorist attacks or other
lies about the commission of crimes or catastrophes,
impersonation of an officer, and trademark infringement,
among others).
UNITED STATES V. SWISHER 25
B
Applying these principles to Swisher’s facial challenge to
§ 704(a), we first ask whether this statute regulates speech.
It clearly does. According to the government, the purpose of
a military medal is to communicate “that the recipient has
served the military efforts of the United States with valor,
exceptional duty, or achievement worthy of commendation.”
The value of a military medal lies not in the materials of
which it is comprised, but in its message; it is “a primitive but
effective way of communicating ideas,” Barnette, 319 U.S. at
632. Wearing a medal, like wearing a black armband or
burning an American flag, conveys a message “by conduct
that is intended to be communicative and that, in context,
would reasonably be understood by the viewer to be
communicative,” Clark, 468 U.S. at 294. Specifically,
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.” Alvarez, 132 S. Ct. at 2548 (Kennedy, J., plurality
opinion) (internal quotation mark omitted). 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.
We next determine whether § 704(a) is a content-based or
content-neutral restriction of symbolic speech. See Johnson,
491 U.S. at 403. As in Johnson, the purpose of § 704(a) is to
stop a particular message: the misappropriation or distortion
of the message of valor conveyed by a medal. See Alvarez,
132 S. Ct. at 2549 (noting the government’s argument that the
purpose of the Stolen Valor Act is to avoid diluting “the value
26 UNITED STATES V. SWISHER
and meaning of military awards”). Because these “concerns
blossom,” Johnson, 491 U.S. at 410, only when a person’s
unauthorized wearing of a medal communicates a false
message, we conclude that § 704(a) “suppresses expression
out of concern for its likely communicative impact,”
Eichman, 496 U.S. at 317, and is a content-based restriction
on speech.
As such, the tests applicable to content-neutral regulations
(the time, place, or manner test, and the O’Brien test) are not
applicable here. Johnson, 491 U.S. at 410 (stating that a
content-based regulation is “outside of O’Brien’s test
altogether”). Instead, § 704(a) “must, like a law directed at
speech itself, be justified by the substantial showing of need
that the First Amendment requires,” Johnson, 491 U.S. at
406. In light of this analysis, we conclude that Perelman
erred in applying the test set forth in O’Brien, which applies
only to content-neutral enactments.8
C
Because § 704(a) is a content-based regulation of false
symbolic speech, it is closely analogous to § 704(b). Indeed,
8
United States v. Hamilton, 699 F.3d 356 (4th Cir. 2012), engaged in a
similar analysis, correctly noting that “the key factor that determines
whether we apply the ‘relatively lenient’ test employed in O’Brien, or the
‘most exacting scrutiny’ standard set forth in Johnson, is whether the
statute being reviewed is related to the suppression of free expression.”
Id. at 370. The Fourth Circuit further acknowledged that when § 704(a)
is construed as requiring an intent to deceive, it “could reach conduct that
solely involves free expression, within the holding of Johnson.” Id. at
371. The Fourth Circuit ultimately did not determine whether § 704(a)
was symbolic speech because it concluded, erroneously in our view, that
§ 704(a) survived strict scrutiny. See id.
UNITED STATES V. SWISHER 27
both statutes bar lies about having received a military medal.
Accordingly, we review the constitutionality of § 704(a)
under the tests enunciated in the plurality and concurring
opinions in Alvarez. If they apply to § 704(a) in the same
manner as they apply to § 704(b), the reasoning of Alvarez
requires us to hold that § 704(a) is also unconstitutional.
We begin by considering the standard set forth in Justice
Breyer’s concurring opinion, which reviewed the
constitutionality of § 704(b) under a less demanding test than
the plurality required. As a threshold matter, Justice Breyer
interpreted § 704(b) favorably to the government as
proscribing “only false factual statements made with
knowledge of their falsity and with the intent that they be
taken as true.” Alvarez, 132 S. Ct. at 2552–53 (Breyer, J.,
concurring). We adopt the same narrowing construction of
§ 704(a), and interpret it as proscribing unauthorized persons
from wearing military medals for the purpose of falsely
communicating that they have been awarded such medals.
See also Perelman, 695 F.3d at 871 (concluding that a person
violates § 704(a) only “if he or she has an intent to deceive”).
The first prong of Justice Breyer’s intermediate scrutiny
test requires consideration of “the seriousness of the
speech-related harm the provision will likely cause.” Alvarez,
132 S. Ct. at 2551. Justice Breyer noted that the narrowing
interpretation of § 704(b) “diminishes the extent to which the
statute endangers First Amendment values.” Id. at 2553.
Because we have adopted the same narrowing interpretation
for § 704(a), the same conclusion applies.9
9
Because both § 704(a), see supra at 26–27, and § 704(b), see Alvarez,
132 S. Ct. 2552–53, prohibit only lies made knowingly and with an intent
to deceive, both provisions impose an identical speech-related harm:
28 UNITED STATES V. SWISHER
But like § 704(b), § 704(a) lacks the limiting features that,
in Justice Breyer’s view, justified other statutes and common
law doctrines punishing the communication of false
statements. Id. at 2553–54. Section 704(a) does not require
“proof of specific harm to identifiable victims,” or that
“someone was deceived into following a course [of action] he
would not have pursued but for the deceitful conduct,” or
specify “that the lies be made in contexts in which a tangible
harm to others is especially likely to occur.” See id. at 2254
(alteration in original) (internal citations and quotation marks
omitted). Nor is § 704(a) limited to false statements that “are
particularly likely to produce harm.” See id. Accordingly,
we conclude that under Justice Breyer’s test, § 704(a), like
§ 704(b), “creates a significant risk of First Amendment
harm.” Id. at 2555.
Arguing against this conclusion, the government asserts
that § 704(a) is analogous to statutes prohibiting trademark
infringement such as the Lanham Act, since it prevents
misappropriation of governmental property. Justice Breyer
rejected a similar argument, concluding that § 704(b) had a
broader reach than trademark statutes, which are typically
“focused upon commercial and promotional activities that are
likely to dilute the value of a mark,” and would “typically
require a showing of likely confusion, a showing that tends to
assure that the feared harm will in fact take place.” Id. at
burdening the speech of a person who intentionally chooses to lie, see
Alvarez, 132 S. Ct. at 2555–56. And in prosecuting either statute, the
government would be required to prove beyond a reasonable doubt that
the defendant had the requisite mens rea. Therefore, we reject the
dissent’s argument that § 704(b) would have a greater chilling effect and
pose a greater risk of selective prosecution than § 704(a) because a person
could thoughtlessly lie but could not thoughtlessly wear an unauthorized
medal. Dis. op. at 41.
UNITED STATES V. SWISHER 29
2554. Because § 704(a) has the same broad reach as
§ 704(b), and likewise does not require that a specified harm
(such as public confusion) will take place, the same analysis
applies here, and we likewise reject the government’s
contention.
In reaching the conclusion that suppressing a symbolic
communication threatens the same First Amendment harm as
suppressing a spoken communication, we again part ways
with Perelman. Although Perelman distinguished § 704(a)
from § 704(b) on the ground that “[t]he use of a physical
object goes beyond mere speech and suggests that the wearer
has proof of the lie, or government endorsement of it,”
695 F.3d at 871, we see no basis for Perelman’s conclusion
that wearing a medal is more probative than speaking a lie.
Cf. Kevin Jon Heller, The Cognitive Psychology of
Circumstantial Evidence, 105 Mich. L. Rev. 241, 248–52
(2006) (noting, as an empirical matter, that jurors give more
weight to testimony, such as eyewitness identifications and
confessions, than to physical evidence, such as blood and
fingerprints). As a practical matter, the government’s
concession at oral argument that military medals are freely
available for purchase confirms that the probative value of
owning a medal or other military decoration is minimal. In
any event, wearing a medal has no purpose other than to
communicate a message. We therefore see no principled
basis for distinguishing a spoken communication from a
symbolic communication in this context.
We also reject Perelman’s reasoning that § 704(a) is like
the statutes described in Alvarez that prohibit impersonation
of government officials, like 18 U.S.C. § 912, or the
unauthorized wearing of military uniforms, like 18 U.S.C.
§ 702, which the Court assumed (without deciding) was valid.
30 UNITED STATES V. SWISHER
See 695 F.3d at 872 (citing Schacht, 398 U.S. at 61). As
Justice Breyer pointed out, “[s]tatutes forbidding
impersonation of a public official typically focus on acts of
impersonation, not mere speech, and may require a showing
that, for example, someone was deceived into following a
course [of action] he would not have pursued but for the
deceitful conduct.” Alvarez, 132 S. Ct. at 2554 (Breyer, J.,
concurring) (alteration in original) (internal quotation marks
omitted). But § 704(a), like § 704(b), requires no act beyond
the false communication itself. While there is a quantum of
conduct involved in pinning on a medal, it is not materially
different from the quantum of conduct involved in speaking
or writing. Nor does § 704(a) require proof that anyone was
deceived into taking a course of action. We also reject
Perelman’s reliance on Schacht to support its conclusion that
§ 704(a) survives First Amendment scrutiny. Schacht itself
merely held that even if the government could constitutionally
prohibit a person from wearing a military uniform without
authorization, Congress may not make “it a crime for an actor
wearing a military uniform to say things during his
performance critical of the conduct or policies of the Armed
Forces.” 398 U.S. at 62–63; see also R.A.V., 505 U.S. at
430–31 (interpreting Schacht as precluding viewpoint
discrimination). Neither Schacht nor any other Supreme
Court case examined a First Amendment challenge to statutes
precluding wearing military uniforms without authorization,
and both the Alvarez plurality and concurring opinion
indicated that laws prohibiting impersonation of an officer are
distinguishable from false claims of entitlement to a military
UNITED STATES V. SWISHER 31
medal. See Alvarez, 132 S. Ct. at 2546 (Kennedy, J., plurality
opinion); id. at 2254 (Breyer, J., concurring).10
The second prong of Justice Breyer’s intermediate
scrutiny test requires an evaluation of “the nature and
importance of the provision’s countervailing objectives.” Id.
at 2551. We conclude that the government had the same
compelling interest in enacting § 704(a) as it did in enacting
§ 704(b): in both cases, the government has a “substantial
countervailing objective” of avoiding dilution of “the
country’s recognition of [award recipients’] sacrifice in the
form of military honors.” Id. at 2555; see also Hamilton,
699 F.3d at 371 (“Accordingly, we hold that the
government’s interest in preserving the integrity of the
system honoring military members for their achievements and
sacrifices is compelling.”).11
Finally, we consider the third prong of Justice Breyer’s
test: “the extent to which the provision will tend to achieve
those objectives, and whether there are other, less restrictive
ways of doing so.” Alvarez, 132 S. Ct. at 2551. As explained
in Alvarez, Congress could adopt narrowing strategies to limit
10
Contrary to the dissent, our analysis does not necessarily invalidate
18 U.S.C. § 709. Cf. Dis. op at 37–38. Because § 709 is limited to
precluding false representations in certain limited contexts (such as in the
field of banking, finance, or law enforcement) where “a tangible harm to
others is especially likely to occur,” Alvarez, 132 S. Ct. at 2554 (Breyer,
J., plurality opinion), it is distinguishable from § 704(a).
11
We are sympathetic to the dissent’s description of the government’s
powerful interest in protecting the message of valor and heroism that is
conveyed by a medal. Dis. op. at 43–46. But because we already
conclude that the government’s interest in preventing the wearing of
unauthorized medals is compelling, the dissent’s further elaboration does
not affect our First Amendment analysis.
32 UNITED STATES V. SWISHER
the breadth of the prohibition, and could establish
“information-disseminating devices,” such as “an accurate,
publicly available register of military awards, easily
obtainable by political opponents.” Id. at 2556. These
alternative means to meeting the government’s goals in
enacting § 704(b) would be equally effective to meet the
government’s stated goals for § 704(a), namely to preserve
the integrity of the military honors system and protect the
symbolic value of military medals.12
Given that the statute fails Justice Breyer’s intermediate
scrutiny test, it also fails under the plurality’s exacting
scrutiny test. See id. at 2543 (Kennedy, J., plurality
opinion).13 The plurality’s conclusion that the compelling
interest served by § 704(b) could be satisfied by a database of
medal winners, and that there is an insufficient causal link
between the government’s compelling interest and the
restriction “on the false claims of liars,” is equally applicable
to § 704(a). See id. at 2549–50.
12
The dissent’s arguments to the contrary, see Dis. op. at 47–48, are
based on its view that symbolic speech involving a physical emblem is
qualitatively different than spoken or written speech, a position
inconsistent with Johnson. 491 U.S. at 403–04. For the same reason, we
disagree with Hamilton’s conclusion that § 704(a) survives strict scrutiny
because a database is inadequate to counter symbolic speech involving a
physical object. 699 F.3d at 373.
13
Although Alvarez lacked a majority opinion, we need not determine
whether the plurality opinion or Justice Breyer’s opinion constitutes the
holding of the Court, see Marks v. United States, 430 U.S. 188, 193
(1977), because we reach the same conclusion under either standard.
UNITED STATES V. SWISHER 33
V
Alvarez clarified that lies do not fall into a category of
speech that is excepted from First Amendment protection.
132 S. Ct. at 2546–47 (Kennedy, J., plurality opinion); id. at
2553 (Breyer, J., concurring). Given that clarification, our
analysis follows a familiar road. Content-based prohibitions
of speech and symbolic speech are analyzed under the same
framework, and so Alvarez dictates our conclusion that
§ 704(a) violates the First Amendment. Because § 704(a)
was unconstitutionally applied to Swisher’s conduct, the
district court erred in denying Swisher relief under 28 U.S.C.
§ 2255. We therefore reverse the district court and overrule
Perelman to the extent inconsistent with this opinion.14
REVERSED.
14
The government also argues that § 704(a) is not subject to the First
Amendment because military medals convey government speech. In
support, the government relies on Walker v. Texas Division, Sons of
Confederate Veterans, Inc., which held that Texas could reject a proposed
design for specialty license plates without violating the First Amendment
because license plate designs constitute government speech. 135 S. Ct.
2239, 2243–45 (2015). But § 704(a) does not regulate the design of
military medals or other government speech; rather, it punishes an
individual’s false communication regarding the entitlement to wear a
military medal. As such, Walker does not help the government here.
34 UNITED STATES V. SWISHER
BYBEE, Circuit Judge, dissenting, with whom N.R. SMITH
and WATFORD, Circuit Judges, join:
Xavier Alvarez announced in a public meeting that he
was a former Marine and had been awarded the
Congressional Medal of Honor. When the United States
prosecuted Alvarez for “falsely represent[ing] himself . . .
verbally” as having received a military decoration or medal,
18 U.S.C. § 704(b) (2011 ed.), the Supreme Court held that
his speech was protected by the First Amendment. United
States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (Kennedy, J.)
(plurality opinion); id. at 2556 (Breyer, J., concurring in the
judgment). Elven Swisher took Alvarez one step better: he
not only said he was a decorated soldier, he proved it by
wearing his Marine Corps League uniform with five
medals—including a Silver Star, a Purple Heart, and the
Navy and Marine Corps Commendation Medal with a bronze
“V.” Like Alvarez, Swisher was an undeserving claimant;
although a veteran, he had not earned a single one of the
commendations he wore. As in Alvarez, the United States
indicted Swisher under the Stolen Valor Act, but this time it
accused him of violating § 704(a), which prohibits
“knowingly wear[ing] . . . any decoration or medal authorized
by Congress . . . except when authorized.” 18 U.S.C.
§ 704(a) (2002 ed.).
The majority today holds that Swisher’s conduct is a form
of speech entitled to the same protection as Alvarez’s actual
speech. I beg to differ. The Supreme Court’s decision in
Alvarez does not compel the result here. The law has always
been able to tell the difference between conduct and speech,
even when the conduct may have some communicative value.
I respectfully dissent.
UNITED STATES V. SWISHER 35
I
Alvarez held that false statements are not categorically
unprotected by the First Amendment. Alvarez, 132 S. Ct. at
2545–47 (Kennedy, J.) (plurality opinion); id. at 2552–53
(Breyer, J., concurring in the judgment). As Justice Breyer
explained, the government can have little interest in policing
the “white lies” we tell to “provide the sick with comfort, or
preserve a child’s innocence,” or false statements made “in
technical, philosophical, and scientific contexts, where . . .
examination of a false statement . . . can promote a form of
thought that ultimately helps realize the truth.” Id. at 2553
(Breyer, J., concurring in the judgment). But the Court
stopped well short of protecting lying generally. As Justice
Kennedy reminded us, “there are instances in which the
falsity of speech bears upon whether it is protected.” Id. at
2546 (plurality opinion).
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.” Alvarez,
132 S. Ct. at 2555 (Breyer, J., concurring in the judgment).
36 UNITED STATES V. SWISHER
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).2 Justice Breyer, writing for himself and Justice
Kagan, applies what he describes as “intermediate scrutiny,”
Alvarez, 132 S. Ct. at 2556, although without really
explaining why that is the proper test.
1
United States v. O’Brien, 391 U.S. 367 (1968).
2
Justice Kennedy, writing for himself and three others, applies strict
scrutiny to § 704(b)’s “content-based restrictions.” Alvarez, 132 S. Ct. at
2548 (Kennedy, J.) (plurality). In dissent, Justice Alito, joined by two
others, would have held that Alvarez’s false statement “merit[ed] no First
Amendment protection.” Id. at 2563 (Alito, J., dissenting). Justice
Breyer’s opinion is the narrowest opinion that a majority of the Court
agreed upon. Marks, 430 U.S. at 193.
UNITED STATES V. SWISHER 37
Part of the analytical challenge of Alvarez is trying to
understand why intermediate scrutiny applies. In Perelman,
the panel used the O’Brien test. 695 F.3d at 872. I can’t
agree with the Perelman panel on that point because § 704(a)
seems to violate at least one prong of O’Brien: The
Government’s interest in § 704(a) is not “unrelated to the
suppression of free expression.” O’Brien, 391 U.S. at 377;
see also Texas v. Johnson, 491 U.S. 397, 410 (1989). For that
reason, the Fourth Circuit did not apply O’Brien, but
ultimately concluded the statute would survive strict scrutiny.
Hamilton, 699 F.3d at 371. The anomaly is, as Judge Davis
pointed out, that § 704(a) survives strict scrutiny, but would
fail O’Brien’s version of intermediate scrutiny. Id. at 377
(Davis, J., concurring).3
Despite this ambiguity, the majority goes out of its way
to extend Alvarez where it does not clearly apply. Moreover,
the majority fails to consider the consequences of our
decision. In addition to creating an unnecessary split with the
Fourth Circuit over a statute that is no longer in effect,4
3
In my view, § 704(a) should be reviewed under intermediate scrutiny
and treated as an “impersonation of a war hero” statute. See Alvarez,
132 S. Ct. at 2554 (Breyer, J., concurring in the judgment) (noting that
§ 704(b) differs from anti-impersonation statutes because they typically
prohibit “acts of impersonation, not mere speech” ); see also id. at
2553–55 (discussing examples of the “many statutes and common-law
doctrines [that] make the utterance of certain kinds of false statements
unlawful”). Unlike § 704(b), we deal here with something more than
“mere speech.”
4
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.
38 UNITED STATES V. SWISHER
today’s decision calls into question the validity of numerous
other statutes that prohibit, for example: the unauthorized
wearing of a military uniform, 18 U.S.C. § 702—which the
Supreme Court has noted is “a valid statute on its face,”
Schacht v. United States, 398 U.S. 58, 61 (1970); the
unauthorized use of the name of federal agencies, 18 U.S.C.
§ 709; or the impersonation of a federal officer, 18 U.S.C.
§ 912—a statute we upheld in United States v. Tomsha-
Miguel, 766 F.3d 1041, 1048–49 (9th Cir. 2014), a case in
which we relied on Perelman (which we now overturn).5 In
light of this, I see no reason to extend Alvarez to § 704(a), in
order to protect deceptive conduct that has no First
Amendment value, and which poses greater harm to the
government’s significant interest in upholding the military
honors system than did the speech covered by § 704(b).
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.
5
Consider also: 18 U.S.C. § 703 (unauthorized wearing of a uniform of
a friendly nation); § 706 (wearing of Red Cross with the fraudulent
purpose of inducing the belief that wearer is a member or agent of the Red
Cross); and § 706a (wearing of Geneva distinctive emblem (Red Crescent
or Red Crystal) with fraudulent purpose of inducing the belief that wearer
is a member or agent of an authorized national society using the emblem,
the International Committee of the Red Cross, or the International
Federation of Red Cross and Red Crescent Societies).
UNITED STATES V. SWISHER 39
II
The majority concludes that the Supreme Court’s decision
in Alvarez dictates the outcome of this case, identifying three
factors from Justice Breyer’s concurring opinion in Alvarez,
and mechanically applying them to the statute at issue here.
Maj. Op. at 26–32. For the reasons I have explained, I agree
with the majority that Justice Breyer’s analysis controls and
that the relevant factors are: (1) “the seriousness of the
speech-related harm the provision will likely cause”; (2) “the
nature and importance of the provision’s countervailing
objectives”; and (3) “the extent to which the provision will
tend to achieve those objectives, and whether there are other,
less restrictive ways of doing so.” Alvarez, 132 S. Ct. at
2551. Yet in applying these factors, the majority fails to
account for the crucial differences between § 704(b) and
§ 704(a)—and indeed, fails to engage in much critical
analysis at all. I am going to address each of the factors in
turn.
A
In analyzing the speech-related harm caused by § 704(a),
the majority concludes that § 704(a) works the same speech-
related harm as § 704(b) because it “lacks the limiting
features that, in Justice Breyer’s view, justified other statutes
and common law doctrines punishing the communication of
false statements.” Maj. Op. at 28. I have two points. First,
I part ways with the majority’s premise that speech and
communicative conduct are the same for First Amendment
purposes. In O’Brien, the Supreme Court rejected “the view
that an apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaged in the conduct intends
thereby to express an idea.” 391 U.S. at 376. Here, the
40 UNITED STATES V. SWISHER
majority doesn’t just blur the lines between conduct and
speech, it simply erases them: It finds that the “quantum of
conduct involved in pinning on a medal . . . is not materially
different from the quantum of conduct involved in speaking
or writing.” Maj. Op. at 30. With all respect, that just isn’t
true. If it were, then we could save ourselves trouble and
money by simply announcing that we are awarding medals
without actually giving the recipients anything. 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.6
6
The majority notes, twice, that distinguishing between pure speech,
like false statements, and “symbolic speech” conveyed through conduct,
like the unauthorized wearing of a military medal, is inconsistent with
Texas v. Johnson, 491 U.S. 397 (1989). Maj. Op. at 20–21 n.6, 32 n.12.
This reference to Johnson is puzzling. Johnson is relevant only if we must
analyze this statute under strict scrutiny as a content-based restriction on
speech. See Johnson, 491 U.S. at 411–12 (applying strict scrutiny to a
statute prohibiting the burning of the American flag). But Justice Breyer’s
concurrence in Alvarez, on which the majority bases its entire analysis,
clearly departs from this traditional First Amendment framework,
analyzing restrictions on false speech under an intermediate scrutiny,
balancing-of-interests approach Justice Breyer refers to as
“proportionality.” Alvarez, 132 S. Ct. at 2551–52 (Breyer, J., concurring
in the judgment). Moreover, as I have already noted, in analyzing false
speech, Justice Breyer specifically distinguishes between “mere speech”
and “acts of impersonation where an act of impersonation is more likely
to cause harm. Id. at 2554 (emphasis in original). Johnson is irrelevant
here.
UNITED STATES V. SWISHER 41
Second, even if there isn’t a relevant difference in content
between the lie represented by saying one has a medal and the
deceit communicated by actually wearing it, the majority
never grapples with the speech-related harms that Justice
Breyer focused on in striking down § 704(b), and therefore
fails to consider whether there is any difference between the
two situations that alters the need for the “limiting features”
discussed in Alvarez. For example, Justice Breyer was
particularly concerned with the potential chilling effect of
§ 704(b), because individuals would worry about “being
prosecuted for a careless false statement” even if they lacked
the requisite mens rea, and so would curtail their own speech.
Alvarez, 132 S. Ct. at 2555. It makes little sense, however, to
extend this principle—that people sometimes thoughtlessly
say things that they don’t really mean—to the context of
§ 704(a). Here, by contrast, it seems unlikely that an
individual could carelessly or negligently wear a military
medal with the intent to deceive. Thus, there is less danger
here that individuals will self-censor their sartorial choices
for fear of being prosecuted for negligent speech.7
There is also much less ambiguity in the wearing of a
military medal, and that diminishes the risk of selective
prosecution under this provision. Id. at 2555 Breyer, J.,
concurring in the judgment) (noting the risk that § 704(b)
7
For reasons the panel explained in Perelman, because we must read
§ 704(a) to prohibit only the wearing of a medal with the intent to deceive,
the statute does not apply to anyone wearing a medal in a theatrical
production, as part of a Halloween costume, or in protest as a political
statement. 695 F.3d at 870 (listing these and other examples). In these
situations, we will readily recognize that the wearer is making no claim to
being a medal recipient. The only person who can be prosecuted under
§ 704(a) is one who is lying and wants us to rely on his possession of the
medal as proof of his valor. There is no First Amendment value in that lie.
42 UNITED STATES V. SWISHER
may be applied “subtly but selectively to speakers that the
Government does not like,” particularly in the political
arena). Human speech is often ambiguous and subject to
different interpretations. As a result, speech subject to
§ 704(b) must be understood in context, and thus is more
easily subject to manipulation and “the risk of censorious
selectivity by prosecutors.” Id. As judges, we are familiar
with the dangers of reading a cold record and trying to supply
voice inflection, facial expression, and body language.8 For
good reason, we defer to the fact-finders who have actually
seen the witnesses to judge their demeanor as a measure of
their truthfulness. See e.g., Anderson v. Bessemer City,
470 U.S. 564, 575 (1985) (“[O]nly the trial judge can be
aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding of and belief
in what is said.”); United States v. Raddatz, 447 U.S. 667,
679 (1980) (“‘The most careful note must often fail to
convey the evidence fully in some of its most important
elements. . . . It cannot give the look or manner of the
witness: his hesitations, his doubts, his variations of language,
his confidence or precipitancy, his calmness or
consideration.’” (quoting Queen v. Bertrand, 16 Eng. Rep.
391, 399 (1867))).
8
Consider, for example, Charlie Chaplin’s classic exchange in The
Great Dictator (1940). When Chaplin mutters “this is a fine country to
live in,” he is arrested, but escapes punishment by explaining that all he
said was “this is a fine country to live in.” Joseph G. Brennan, A
Handbook of Logic 213 (2d ed. 1961) (describing this an example of the
informal “fallacy of accent”). See also Watts v. United States, 394 U.S.
705, 708 (1969) (overturning the petitioner’s conviction for threatening
the President because his statement, made at a political rally opposing the
Vietnam war, was simply “crude” “political hyperbole,” not a true threat).
UNITED STATES V. SWISHER 43
By contrast, wearing clothing, particularly with the
precision demanded when one dons a military uniform, is far
less ambiguous than the vagaries of human speech. The very
nature of a uniform suggests that once we recognize the
distinctive colors and insignia, we know immediately whether
we are dealing with the local constabulary or a member of the
nation’s armed forces, whether the service member is wearing
the camouflage of the ground forces or the crisp whites of the
navy, whether the service member belongs to the armored
division or the medical corps, and whether the member is
commissioned or non-commissioned. In the same vein, we
can discern, without any words being exchanged, the
campaigns in which the member has participated and whether
the member has been decorated for actions in combat.
Indeed, so clear is our understanding of the meaning of the
uniform that no voice inflection or body language can
countermand what we have seen for ourselves. Elven
Swisher didn’t have to tell anyone that his Purple Heart meant
that he had been wounded in battle, or that his Navy and
Marine Corps Commendation Medal was awarded for valor.
Contrary to the majority’s assertion that there is no
principled distinction between § 704(a) and § 704(b), Maj.
Op. at 29, § 704(a) engenders less potential constitutional
harm than § 704(b), because there is less risk to the First
Amendment in the government identifying and policing
specific instances of deceptive conduct than in trying to
police the line between false and true statements.
B
The false wearing of military medals poses significantly
greater harm to the government’s interests than does mere
false speech. That means that, contrary to the majority’s
44 UNITED STATES V. SWISHER
assertion, Maj. Op. at 31, the government’s objectives here
are not precisely the same as those at issue under § 704(b).
The United States has a powerful interest in protecting the
integrity of its military decorations. Indeed, Congress has
punished the wearing, manufacture, or sale of military
decorations without authorization since 1923. See Act of
Feb. 24, 1923, ch. 110, 42 Stat. 1286. The wearing of an
unearned military medal dilutes the message conveyed by the
medal itself. Even if the wearer is later exposed as a liar, the
utility of the medal as a symbol of government
commendation has been undermined. The public can no
longer trust that the medal actually is a symbol of government
commendation, i.e., that the person wearing the medal has
actually earned it. This results in a different, more concrete
harm than that which may arise from the false statement that
one has earned a military medal. It is one thing to say that
one has been decorated; it is quite another to produce the
evidence for it by appropriating a symbol that the
government, through decades of effort, has imbued with a
particular message. Unlike false statements, which may work
harm by giving the public the general impression that more
personnel earn military honors than actually do, the false
wearing of medals directly undermines the government’s
ability to mark out specific worthy individuals, because the
symbol the government uses to convey this message can no
longer be trusted. This may also mean that those who
rightfully wear a military medal are less likely to be believed.
In this respect, a military medal is akin to a trademark: a
symbol that denotes a particular level of quality, or
worthiness. See Alvarez, 132 S. Ct. at 2554 (Breyer, J.,
concurring in the judgment) (“Statutes prohibiting trademark
infringement present, perhaps, the closest analogy to the
present statute.”). As Justice Breyer recognized in Alvarez,
UNITED STATES V. SWISHER 45
a false claim regarding a military medal “creates confusion
about who is entitled to wear it, thus diluting its value to
those who have earned it, to their families, and to their
country.” Id. Although in Alvarez, Justice Breyer ultimately
concluded that the confusion caused by false statements was
not sufficient to outweigh the constitutional harm caused by
the statute, here, the calculus is different, because § 704(a)
creates less risk of constitutional harm, and because the
wearing of an unearned medal offers more convincing proof
of the lie than a mere false statement.
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.
To be clear, this harm does not occur when an unearned
medal is worn for purposes of art, theater, political
expression, or the like. It is only when the medal-wearer
46 UNITED STATES V. SWISHER
wears the medal in order to appropriate the message
conveyed by the medal—that the wearer has actually earned
a military honor—that the medal’s symbolic value is diluted.
Elven Swisher, however, was not wearing his false military
medals for purposes of art, political expression, intellectual
debate, or even any of the “innocent” reasons people may lie.
He wore his medals to support the elaborate story he had
concocted to fraudulently obtain disability benefits from the
government. He even wore his fraudulent medals to
embellish his credibility when testifying at a criminal trial
(not his own). See United States v. Hinkson, 585 F.3d 1247
(9th Cir. 2009) (en banc), as amended, 611 F.3d 1098 (9th
Cir. 2010).9 It is absurd to argue that allowing someone like
Swisher to wear unearned military honors in the course of
impersonating a war hero does not do significant damage to
the value of the genuine honor bestowed on those who have
sacrificed for their country.
9
Swisher testified as a government witness in a federal murder-for-hire
case, appearing on the witness stand with a Purple Heart pinned to his
lapel. Hinkson, 585 F.3d at 1254. Swisher testified that the defendant in
that case, David Hinkson, had heard about his impressive military service
record and had wanted to hire him to torture and kill a federal judge, an
AUSA, and an IRS agent. During the course of the trial, Hinkson’s
lawyers called Swisher’s credibility into serious question, on the basis that
his “reissued” military discharge papers, which detailed the military
honors Swisher had supposedly won, could not be authenticated. See id.
at 1251–57 (recapping the Hinkson trial and Swisher’s role); see also
United States v. Hinkson, 611 F.3d 1098 (9th Cir. 2010) (en banc)
(amending the original en banc opinion); id. at 1099 (W. Fletcher, J.,
dissenting) (discussing in even more detail Swisher’s relationship with
Hinkson and the Hinkson trial). The parties here agreed that Swisher’s
conduct at the Hinkson trial would not be introduced at his own trial.
Swisher was indicted based on a photograph showing that he had worn his
false medals to a Marine Corps League event.
UNITED STATES V. SWISHER 47
C
Finally, there are fewer less restrictive regulatory
alternatives available to the government where the
unauthorized and deceptive wearing of a military medal is
concerned. To be sure, the statutory provision at issue here
punishes the same kind of lie at issue in Alvarez. But the fact
that the lie here is told in a more effective way, with physical
proof in the form of the medal to support the false claim of
entitlement, increases the harm caused by the lie and also
means that other, less restrictive means are less likely to be
effective. Justice Breyer noted that many statutes punishing
false statements require some showing of actual or likely
harm resulting from the lie and suggested that “a more finely
tailored statue might . . . insist upon a showing that the false
statement caused specific harm or at least was material, or
focus its coverage on lies most likely to be harmful or on
contexts where such lies are most likely to cause harm.”
Alvarez, 132 S. Ct. at 2556 (Breyer, J., concurring in the
judgment). Section 704(a) satisfies Justice Breyer’s
concerns. First, the harm caused by the false wearing of
military medals is material. It is material to the message
conveyed by the medals themselves. When pretenders wear
medals, the medal itself can no longer be taken as a sign that
the wearer has earned it and is therefore worthy of
commendation. Second, § 704(a) is confined to a single
context—the intentional wearing of medals when the wearer
intends to deceive—where it is most likely to cause harm.
Moreover, “counterspeech” will be less effective in
correcting the falsehood conveyed by deceptively wearing an
unearned military decoration. See Alvarez, 132 S. Ct. at
2549–50 (Kennedy, J.) (plurality opinion); id. at 2556
(Breyer, J., concurring in the judgment). One could denounce
48 UNITED STATES V. SWISHER
Swisher as an impostor, but as the Fourth Circuit explained,
“speech may not effectively counter that which a person
sees.” Hamilton, 699 F.3d at 373. One could, perhaps,
engage in a war of words with Alvarez, but Swisher, who has
the medals on his uniform, occupies the high ground.
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.
III
I would uphold the constitutionality of §704(a). I
respectfully dissent.
10
The majority, quoting Alvarez, refers to the database as an
“‘information-disseminating device’” for confirming that the medal wearer
has actually earned the military honor. Maj. Op. at 31–32 (quoting
Alvarez, 132 S. Ct. at 2556 (Breyer, J., concurring in the judgment)).
Although it is low-tech, we already have such an “information-
disseminating device”: the medal.