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Ex-Marine’s Wearing of Unearned Medals Deemed 'Protected Speech'

Elven Joe Swisher is the latest beneficiary of the courts’ discomfort with so-called “stolen valor” legislation. Several years ago, Swisher, an ex-marine, was convicted of violating the federal Stolen Valor Act for wearing medals he had not earned. His conviction came about after he wore a Purple Heart medal to a murder trial where he was a witness, presumably to enhance his credibility. His conviction was recently overturned by a federal appeals court, however, when that body ruled that his wearing of unauthorized medals was protected speech.

2016-01-18_9-27-39The matter of stolen valor is a sensitive one to present and former members of the military and their families, with many of those folks believing that the misrepresentation of service should be criminalized. The Stolen Valor Act has been federal law for years now, but it has undergone several changes since it was first passed, largely out of deference to reviews of the statute that have taken issue with what some have seen as its inherent…and unconstitutional…First Amendment limits.

I am a military veteran, both of my parents were veterans, and I have a son presently serving in the Air Force; additionally, my uncle was awarded a Bronze Star for his actions at the Battle of Iwo Jima, and my late father-in-law was awarded a Silver Star during his service in the Vietnam War. However, all of this said, I basically do not disagree with the court’s decision in this case. I realize that my position puts me at odds with a lot of my brethren in the veteran community, but, in cases like this, I try to see past my own personal interests and look toward broader implications with respect to liberty, which is absolutely something the courts must do.

No, I do not like people lying about military service, but I am not prepared to travel the awfully slippery slope that begins with deciding that simple lying, devoid of a connection to fraud, is a crime. “Mere” lying, as unappealing a behavior as I’m sure most of us find it to be, is, in the end, speech.

The point at which lying becomes a crime is when it is done for the purpose of committing fraud – that is, to separate people, companies, agencies, etc., from their money under false pretenses. If some guy who’s never served wants to wear a military uniform to the local bar to impress girls, although I don’t like that he is doing so, I don’t think it should be a crime. However, if that same guy fabricates documentation to represent himself as a serviceman in order that he can receive a special credit on his property taxes available only to service personnel, then he has committed fraud, and that should be against the law.

Admittedly, where the particular case on which this verdict was based has me in at least a little bit of quandary is that the guy was wearing the Purple Heart in court, presumably in an effort to enhance his credibility with the jury; in other words, while he may not have been wearing the medal in this case for the purpose of realizing undue financial gain, wearing it in court like he did is not exactly the same thing as wearing it around town while running errands. Maybe there should be a special category of fraud that applies in situations like court trials, where the credibility and status of plaintiffs, defendants, and witnesses is a big part of how cases are decided.

I don’t know, and perhaps even such a special exception, if it were to be made a part of law, would not withstand challenges on the basis of constitutionality. In the end, free expression should, as much as humanly possible, be subject to our highest, best, and most liberally-applied protections.

 By Robert G. Yetman, Jr. Editor At Large