United States v. Swisher

The First Amendment does not prohibit Congress from criminalizing the action of wearing unauthorized military medals or ribbons with the intent to deceive others.

Elven Joe Swisher enlisted in the Marine Corps shortly after the Korean War. Three years later he was honorably discharged into the reserves. The paperwork documenting the discharge made no mention of any “decoration, medals, badges, commendations, citations, and campaign ribbons awarded or authorized [to Swisher].” Decades later, in an attempt to increase his disability benefits with the Veterans Administration (“VA”), Swisher applied for an increase in benefits, submitting a concocted story in which he claimed he was entitled to many different medals, a badge of honor, and ribbons because of his participation in a “secret combat mission.” Initially, the VA denied benefits to Swisher because there was no corroboration that his ailment was linked to his service in the military, but once Swisher supplied supporting documentation, the VA increased his health benefits. The VA later discovered that Swisher’s claims were fraudulent. As a result, Swisher was convicted for wearing unauthorized military medals, making false statements to the VA regarding his military service, disability, forging or altering his certificate of discharge, and theft of government funds. Swisher appealed his convictions claiming that his conviction for wearing medals violated his First Amendment rights under United States v. Alvarez. On review, the Ninth Circuit evaluated whether Alvarez, which found that false claims regarding medals were facially unconstitutional because of First Amendment rights, also applies to the unauthorized wearing of medals. In analyzing this issue, the panel found that there is a difference between wearing a medal without intentionally falsifying that the medals have been awarded to them, and intentionally deceiving others that the medals had been awarded in order to gain some pecuniary benefit. Therefore, the panel held that the statute was not facially unconstitutional, and agreed with the district court's denial of relief. AFFIRMED.