A federal appeals court threw out a conviction against a veteran for violating the Stolen Valor Act which criminalized wearing unearned military honors, citing the First Amendment. The decision is in-line with the Supreme Court’s ruling that the act was unconstitutional.
Although the Supreme Court ruled the Stolen Valor Act unconstitutional in 2012, the veteran, Elven Joe Swisher, now in his late 70s, was convicted in 2007. President Barack Obama signed an updated version of the act in 2013. Congress later removed a portion of the law that made it a criminal offense to wear unearned medals.
Swisher served with the Marine Corps from 1954 to 1957 and was honorably discharged. It was more than 40 years later, in 2001, when he sought disability for PTSD for injuries sustained in what Swisher claims was a secret mission into North Korea following the 1953 armistice.
According to Swisher, after being injured, he was approached by an unnamed captain who presented him with a Purple Heart and told him that 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.”
The Veteran’s Commission denied Swisher’s claims. Charges were brought against Swisher in 2005 when he appeared in court as a witness wearing a Purple Heart.
Swisher testified that he had been asked by David Roland Hinkson to kill a federal judge in a tax evasion case against Hinkson, that Hinkson was impressed with Swisher’s Korean War record, and that he had killed “many men.”
The 2007 case against Swisher for violating the Stolen Valor Act included a photograph of Swisher wearing the Purple Heart along with Navy and Marine Corps ribbons and Navy and Marine commendation medals. Swisher was not charged for wearing false honors but rather, claiming them in order to receive disability benefits.
He was convicted of “Making false statements to the VA regarding his military service, disabilities, and honors in an effort to obtain benefits” and “forging or altering his certificate of discharge,” show court documents (.pdf).
The San Francisco 9th U.S. Circuit Court of Appeals decided that although Swisher had attempted to seek benefits for his supposed actions after the end of the Korean War, the law that criminalized making false claims violated Swisher’s right to free speech, stating that the “statute lacked limiting features, such as a requirement of proof of specific harm to identifiable victims.”
In other words, in order for it to fall outside the scope of protected speech, it would have to present a danger to others, such as defamation, perjury or lying to a government official.
The federal court’s ruling states that there are ways to keep track of those awarded military honors, that criminalizing false claims put too much of a burden on free speech, and that the prosecution could not support their argument that people claiming false honors would dilute how the public perceives the value of such military honors.