On January 17, 2016, I appeared on Fox News’ America’s News Headquarters (@ANHQDC) with Host Arthel Neville (@ArthelNeville) to discuss the recent decision from the 9th circuit which struck down a federal statute that criminalized the fraudulent wearing of a Military medal or award.
First, the 9th Circuit Decision is Moot for anyone other than Mr. Swisher. It does however illustrate the present day law.
This case has little legal significance for anyone other than Mr. Swisher as our present day law has been amended to allow someone to fraudulently represent or wear a military medal or award.
Swisher was convicted (among other crimes, see next point) of the 2002 version of the Stolen Valor Act which criminalized the fraudulent wearing of military medals or awards.
Specifically, the statute reads:
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.
This version of the law targeted falsely wearing and nothing more, however, this isn’t the law in the present day.
That law was changed following the reasoning in United States v. Alvarez, 132 S. Ct. 2537 (2012), a US Supreme Court decision in 2012 which struck down a similar subsection of the Stolen Valor Act which criminalized lying (verbally or in writing) about receiving military medals. The Court found that such speech was protected by the 1st amendment and the Government couldn’t prohibit in the broad way it did.
In Swisher’s case, the law he was convicted of was changed in 2013 after Alvarez to its present form which eliminated “fraudulently wears” from the statute. Hence, even though the 9th circuit found the 2002 version of the statute to be unconstitutional, it doesn’t matter because the “wearing” language has been removed.
The present day law does, however, prohibit the fraudulently holding oneself out as a recipient of a military medal or award with the intent to obtain money, property, or other tangible benefit.
Swisher Other Convictions stand which he attempted to obtain benefits
Additionally, Swisher’s other convictions were not affected by the decision. In addition to the conviction for fraudulently wearing the medals, Swished was convicted of filing a fraudulent claim for service-related Post-Traumatic Stress Disorder (PTSD) which stated that Swisher received the Silver Star, Navy and Marine Corps Medal with Gold Star, Purple Heart, and Navy and Marine Corps Commendation Medal with Bronze “V.” As a result of the claim, he was granted $2,366 month in benefits.
He was sentenced to 1 year and a day in Federal prison. This recent reversal does not affect the other convictions related to the fraudulent claim.