United States v. Swisher

A statute containing a content-based restriction, with the purpose of stopping a particular message from being conveyed, is a restriction on speech and analyzed under the First Amendment.

Elven Joe Swisher was in the United States Marine Corps. He was honorably discharged in August, 1957, and given a DD-214 discharge document. The document listed Swisher’s awards, medals, and citations received. Over forty years after his discharge, Swisher filed a VA claim for Post-Traumatic Stress Disorder (PTSD). He claimed that the PTSD was a result of his participation in a secret combat mission in North Korea in 1955, stating he was wounded in battle, and had been presented with numerous awards and medals. The VA denied the claim, because Swisher failed to provide corroborating evidence that his PTSD was service connected. Swisher appealed the denial and presented a photocopy of a second DD-214, which stated that it was to replace the first document and changes had been verified. The new document included the various awards claimed, causing the VA to reverse. The form was later deemed fraudulent, causing the VA to deny compensation. Swisher was indicted for four violations of federal law, including wearing unauthorized military medals in violation of 18 U.S.C. § 704(a). Swisher challenged his conviction, claiming it violated the First Amendment under United States v. Alvarez. The Ninth Circuit distinguished Alvarez, holding that § 704(a) survived First Amendment scrutiny. A three judge panel rejected Swisher’s challenge. Swisher appealed. Alvarez held that lies do not fall in the category of speech protected by the First Amendment. On appeal, the en banc Ninth Circuit Court held that content-based prohibitions of speech and symbolic speech are analyzed under the same framework, as wearing a medal conveys a message. The panel held that § 704(a) violated the First Amendment, as its purpose was to block a particular message from being conveyed. The panel further held that the district court erred in denying Swisher relief. REVERSED.