Stolen Valor Conviction Overturned, Ruled Free Speech

Send to Kindle
The Marine Corps Silent Drill Platoon performs during a parade held at Marine Barracks Washington, D.C., in honor of the 60th anniversary of the Korean War

The Marine Corps Silent Drill Platoon performing in honor of the 60th anniversary of the Korean War. (Photo: Lance Cpl. Dan Hosack/USMC)

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.

{ 20 comments… add one }
  • DaveGinOly January 19, 2016, 12:25 am

    “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.”

    In other words, the court identified the difference between a “right” and a “crime.” A crime injures an innocent party. Rights don’t need limits, because any time they’re abused to the point that they intentionally or recklessly injure someone, a right is no longer being “exercised,” a crime is being “committed.” Remember this every time you hear an anti-gun nut say “the NRA protects Americans’ right to murder people.” These people don’t know the difference between the exercise of a right and the commission of a “crime.”

    Although what Swisher did may be offensive, it didn’t injure anyone. And that’s the crux of “freedom.” You are free to do anything you want – but you can only be punished for hurting innocent people. (I use the term “innocent people” because there is a right you can exercise in which you can injure someone – self-defense. In self-defense, the person you injure, however, isn’t “innocent.”)

    Government has the authority to identify crimes (i.e., to identify acts that injure innocent parties) and to establish appropriate punishment for the crimes it defines. It does not have the authority to fabricate crimes of intrinsically innocent acts (like owning an “assault weapon” or a “high-capacity magazine”) and to punish people who have harmed nobody.

    • Chris Baker January 21, 2016, 12:22 pm

      Sounds like your ideas on Government are very similar to mine. I like the way you differentiate between a right and a crime. Gun control is a crime because innocent people are hurt when their defensive tools are taken away. Carrying a gun is a right because it doesn’t hurt anyone.

  • EV GREER January 15, 2016, 5:12 pm

    IT IS VERY SIMPLE , ” WE THE PEOPLE ” MUST TAKE ACTION TO RESTORE OUR GOVERNMENT ! VOTE ALL NEW PERSON IN WHO SIGN THE ONE TERM ONLY CONTRACT AND GET RID OF THESE LOW LIFE SCUM IN WASHINGTON D.C. ! ELECT DONALD TRUMP AS OUR NEW ELECTED PRESIDENT AND LEADER ! SEND A REAL MESSAGE TO DC.

  • Sandman January 15, 2016, 4:14 pm

    How about the THOUSANDS of us Veterans who server in Viet Nam and were drenched in AGEN ORANGE only to find out years later that the many diseases we suffered with were cause by AO. Many of us were lucky enough to get help we had serious surgery’s that left lasting scars both mentally and physically–no different that being hit by :FRIENDLY FIRE”
    No purple hearts for us even though our own govt sprayed us with toxic chemicals that were killing us one day at a time.
    We were not even told to look for any symptoms nor were we told that we had been sprayed.
    I too don’t want a medal , just want an admission from the govt that they screwed up.
    You go to the VA Hospital and was made to feel like–go away and die so we don’t have to deal with you. Yes—we get a pittance of disability but not enough to compensate us for what we have had to deal with.

  • Leonard Feinman January 15, 2016, 2:15 pm

    I was sitting on a bunker in Vietnam, when a “short round” landed in front of me, blowing me off to the rear. I saw my glasses coming off as I flew, then nothing. I regained consciousness and found no shrapnel, but my body was twisted, I was in pain, and given first aid. I awoke in the bunker and then evacuated to the hospital in Long Binh. No purple heart.

    Some time later, I felt like I had a pimple in my finger. I went to the medic, and he sliced it open, and a grenade fragment was removed. I did not remember how it got there, but there it was, just the same. No Purple Heart.

    I have a buddy who lost his lower leg to a mine. He has a Purple Heart. He deserves it. I do not particularly think I deserve one too, and I admire those who rightfully wear theirs. Any person who served in war will probably feel the same as I do, lucky to be alive. I would not take a medal for what happened to me. I don’t think it is deserved. I do think, that stating false valor, is not a matter of free speech. It is a matter of honesty. Those who earned it, deserve to be elevated for their actions. Those that steal it, should be punished. That is a fraud. It shows dishonor to those who “left something behind.”

    • EV GREER January 15, 2016, 5:08 pm

      YES , YOU DO DESERVE A PURPLE HEART FOR BEING WOUNDED IN ACTION IN THE REPUBLIC OF VIETNAM . I TOO WAS WOUNDED TWICE AND RECIEVED 2 PURPLE HEARTS BUT THE SECOUND ONE DID NOT HAVE THE STAR ON IT , REPRESENTING THE SECOUND WOUND ??? I NEVER GOT IT EITHER . NOTHING ON MY DD214 EITHER . I WAS TOLD THE RECORDS WERE WASHED AWAY IN A FLOOD IN NAM THEN BURNED UP IN A FIRE IN RECORDS IN KANSAS ? AND ON AND ON AND ?????? BUT THESE CONGRESSPERSON GIVE THEMSELVES RAISE’S AND BENEFITS AND THEIR FAMILY’S GET LIFE TIME INSURANCE FOR EVER ….. AND WE AND OUR BROTHERS AND SISTER WHO DID GO INTO REAL COMBAT AND DID GET KIA/WIA , DON’T GET SHIT ! TIME FOR REVOLUTION TO START !

  • Dave Hicks January 15, 2016, 1:37 pm

    Impersonating any service man is a dishonor to real service men.My father was a Korean War combat veteran,he never bragged about it.My son served 2 Afghanistan combat tours with the US Marine Corps and doesn’t brag about it. Both of these men are real hero’s.

  • watchnan48 January 15, 2016, 10:01 am

    Those that seek respect or acknowledgment for something they had never done or achieved are what I consider failures in life… I wonder if those judges on this Federal Appeals Court bench are one in the same to make this decision. No men or women who seek unearned honor have integrity and cannot be trusted to act within the Constitutional Laws of this land.

  • joebob January 15, 2016, 9:51 am

    Really? This is a crime men with guns should take people out for? Get over yourselves.

    • RAPTOR555 January 15, 2016, 2:59 pm

      HUH ?

  • Chris Baker January 15, 2016, 9:10 am

    “The Veteran’s Commission denied Swisher’s claims.” Of course they did. That’s what they do. I injured my back while on a temporary deployment to Korea in 1976. X-rays were taken, injury confirmed and I was given the X-rays to take back to my regular duty station. Did and gave them to the medical staff there. When I had further problems those X-rays were no where to be found and my claim was denied. So I for one, while I don’t know that he earned those awards, have doubt that he didn’t.
    Now to the law, Yes it’s unconstitutional because the first amendment says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
    The congress cannot pass a law against lying, it would be a prohibition against free speech. However, unlike the second amendment, the first amendment only restricts congress. It is almost universally used to browbeat people and organizations in areas where it simply does not have any purview, such as telling a restaurant owner they can’t restrict who can eat in their restaurant or a court can’t have the 10 commandments on the wall and other nonsense.

    • John Ko January 15, 2016, 1:26 pm

      So, I can misrepresent myself as something other than I truly am, gain undeserved recognition and status for my impotent ego, all while dishonoring others who have truly earned the right, and it’s a right I can exercise under the 1st Amendment? There is something jackassedly wrong with this.

      • Chris Baker January 15, 2016, 10:44 pm

        Talk to the founders. If you restrict someone’s right to speech or express themselves even if it’s a lie, then you can restrict the truth too. The military is getting into doing this to Christians. They’ve given Chaplains, punishments for explaining what the bible says about a subject and in one case they did it after the person who complained about him ASKED WHAT THE BIBLE SAID ABOUT THE SUBJECT! I want to know why they aren’t protecting Chaplains???

  • JMSQUIRES January 15, 2016, 8:41 am

    His conviction should stand, he tried to gain a financial outcome based on service medals he did not earn. DD214 has listed all service awarded medals and achievements, he falsely changed his to receive money from the VA.

    • Chris Baker January 15, 2016, 9:11 am

      DD-214’s are not always right.

    • C J January 15, 2016, 11:47 am

      I agree with you. The facts were shown that this person was attempting to swindle the VA/Government out of funds for alleged stress and injuries that apparently everyone of any support were unavailable. I found that my DD214 contained information on awards that I had no idea were there until I ordered the records. You see those records are sealed and given to the troop to carry to the separation station my case (Fort Dix) for processing. I never opened the envelope after I rotated out of country. However, I also have a warrant officer friend who sued the VA for a cover up of Army documented injuries that he received in service. Apparently, they figured if they pulled some pages from is original file the courts would not be any wiser. He earned five (5) Purple Hearts within 26 months in 2.5 tours in Southeast Asia. And, like he told me they (Army) should have given him just one with a golden barbed wire cluster surrounding it. This would have been more accurate of the times.

  • Jim Jadwin January 15, 2016, 8:15 am

    If a person pretends to be a cop by walking around dressed a policeman is this FREE SPEECH also? Or is it only a crime when they issue fake tickets and pull over motorists?

    • Chris Baker January 15, 2016, 9:32 am

      If someone chooses to wear clothing and decorations on that clothing that makes that person look like a Law Enforcement Officer (LEO) then if someone asks for help they will need to be very clear that they are private citizens and they also need to hope that they don’t run into someone with a hate on for “cops” considering how they’ve been portrayed by the left, sounds like an elaborate suicide method.
      Should someone pass a law against it? Depends on who’s passing the law. Congress shouldn’t. First amendment prohibits congress from passing laws against free expression. While congress can’t, why couldn’t a state or county or city as long as their own equivalent documents don’t forbid it?

      • Lighter note January 15, 2016, 11:05 am

        If someone is impersonating a cop, my first thought is stripper. So look for the breakaway pants. Otherwise they are probably up to no good. When I see a female officer at the bar on Halloween in a very short mini-skirt, I will let her frisk me.

        • Chris Baker January 15, 2016, 10:49 pm

          You might, but I would not, partly because I don’t drink and so don’t go into bars but if I did, and if she did, then there’s a very good possibility she would find at least one weapon as well as a gun. You do know the rant they use in army basic don’t you…”This is your weapon, this is your gun, this is for shooting and this is for fun”. (well, I don’t know if they still say it or not but if not, they should. Probably can’t because it might hurt someone’s feelings.)

Leave a Comment

Send this to a friend