By Dan Zhang
Dan Zhang is a student at the University of Pennsylvania.
In United States v. Swisher (2014), the U.S. Court of Appeals for the Ninth Circuit, citing United States v. Perelman (2012) , held that the First Amendment does not prevent Congress from criminalizing the act of wearing military medals without authorization and with intent to deceive.  This ruling may have implications for future cases involving First Amendment rights.
The defendant, Elvin Swisher, was enlisted in the United States Marine Corps from 1954 to 1957. Since being honorably discharged, Swisher twice applied for disability benefits from the Department of Veterans Affairs (formerly the Veterans Administration), once in 1958 and again in 2001. In both claims, Swisher recounted events that involved him being awarded several military medals. Swisher’s 2001 claim for service-related Post-Traumatic Stress Disorder benefits was honored. However, in 2002, the VA received information from military personnel that the 2001 application contained fraudulent information. In 2006, further investigation demonstrated that the application was indeed forged, and the VA reversed its 2001 decision, compelling Swisher to pay back the benefits.
In 2007, a grand jury indicted Swisher for (among other violations) wearing unauthorized military medals in violation of 18 U.S.C. § 704(a) of the Stolen Valor Act of 2005. § 704(a) criminalized unauthorized wearing of military medals with intention to deceive. In the trial, the government showed a photograph in which Swisher wore several military medals, despite no evidence in the Marine Corps files to confirm that Swisher had prior authorization to wear those medals. In the end, the jury found Swisher guilty on all counts.
In 2011, Swisher challenged his conviction, in light of United States v. Alvarez, decided by the United States Supreme Court. In Alvarez, the court struck down 18 U.S.C. § 704(b), which criminalized making false claims regarding military medals, as unconstitutional. In particular, the plurality held that § 704(b) did not pass strict scrutiny because the government had failed to show “a close fit between the restriction imposed and the injury prevented or that that the government had chosen the least restrictive meant to achieve its ends.”  Swisher argued that the Alvarez reasoning regarding § 704(b) in Alvarez ought to be applied to § 704(a), under which Swisher was convicted.
However, the Circuit Court noted that the constitutionality of § 704(a) had already been decided in a previous Ninth Circuit case, United States v. Perelman (2012). In Perelman, the court held that § 704(a) applies “only to individuals who wear medals for the purpose of falsely communicating they are entitled to wear them, as opposed to individuals who wear the medals to express grief, honor, or some other non-deceptive.”  Subsequently, the court found that § 704(a) was not repugnant to the First Amendment, on the grounds that: (1) expressive conduct (that is, wearing a medal) is different from expressive speech; and (2) § 704(a) was “content-neutral” because the provision’s goal was to prevent intentional deception rather than the “suppression of a particular viewpoint.” 
As a result, the court applied reasoning from Perelman and upheld Swisher’s conviction. In particular, Swisher argued that § 704(a), in restricting his “expressive conduct” was in violation of the First Amendment. However, citing Perelman, the court found that § 704(a) could lawfully regulate conduct, and therefore, rejected Swisher’s argument. Furthermore, without an intervening higher authority (that is, a contrary ruling by a higher court), the court could not consider overruling Perelman. Therefore, the court concluded that § 704(a) could be lawfully applied to Swisher’s conduct, and upheld his conviction.
However, there are valid arguments against the Swisher ruling. Circuit Judge A. Wallace Tashima addressed some of these arguments in a concurring opinion, in which he expressed disagreement with the court’s rationale but nonetheless acknowledged that court was not able to depart from Perelman. In particular, Tashima challenged Perelman’s conclusion that speech and conduct can be decoupled. Indeed, symbolic speech seems to be both speech and conduct, in that an action is taken in order to convey a particular message. Moreover, the Supreme Court has previously ruled that certain instances of symbolic speech are indeed protected by the First Amendment, such as in Texas v. Johnson (1989) (regarding flag burning)  and Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) (regarding wearing black armbands to protest the Vietnam War) . Thus, if Perelman involved symbolic speech, then § 704(a) may indeed by unconstitutional.
Moving forward, it is clear that the scope of First Amendment protection is a recurring problem in constitutional law. On the one hand, cases like Perelman and Swisher demonstrate a narrowing of the scope of these rights. On the other hand, cases such as Alvarez, and indeed, the more controversial campaign finance case, Citizens United v. Federal Election Commission (2010),  demonstrate a broadening of the scope of First Amendment rights. Nonetheless, Swisher represents an important development in First Amendment jurisprudence, and it will be informative to see if and how future rulings cite Swisher.
 United States v. Perelman, 695 F.3d 2383 (9th Cir. 2012), http://cdn.ca9.uscourts.gov/datastore/opinions/2011/09/26/10-10571.pdf
 United States v. Swisher, No. 11-35796, D.C. Nos. 1:09-cv-00055-BLW, 1:07-cr-00182-BLW-1, http://cdn.ca9.uscourts.gov/datastore/opinions/2014/10/29/11-35796.pdf.
 Id at 12
 Id at 15
 Texas v. Johnson, 491 U.S. 397 (1989), http://www.law.cornell.edu/supremecourt/text/491/397.
 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), http://www.law.cornell.edu/supremecourt/text/393/503.
 Citizens United v. Federal Election Commission, 558 U.S. ___ (2010), http://www.law.cornell.edu/supct/html/08-205.ZX.html.
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