Recently, a federal appeals court determined that wearing an unearned medal of honor is protected by the First Amendment.
Back in 2007, Elven Joe Swisher was convicted under the Stolen Valor Act of 2005, a law that considered it a misdemeanor offense if you lied about obtaining military honors. Swisher often wore various medals in public and at one time in court as a witness in an attempted murder trial.
A new version of the Stolen Valor Act was then enacted by President Obama in 2013. This version punished those who fraudulently represented that they received military honors to “obtain money, property, or other tangible benefit.” It was under this new version of the law that Swisher decided to appeal his conviction.
The appeals court determined that wearing medals, even if fraudulently, does convey a message. And, even if that message is a lie, lies are still protected under the First Amendment in this circumstance.
What Is the Stolen Valor Act?
The Stolen Valor Act was first enacted back in 2005 to prevent the unauthorized wearing, manufacturing or selling of military decorations and medals. Violating the law would be treated as a misdemeanor with a monetary fine and some jail time depending on the type of medal or honor that was fraudulently worn.
By 2012, the Supreme Court struck down the Act because it unconstitutionally regulated speech, and was therefore in violation of the First Amendment.
In 2013, a new version of the Stolen Valor Act was enacted. Violation of the law now included the “intent to obtain money, property, or other tangible benefit” through fraudulently holding yourself out to have earned a military medal. Just lying about receiving these honors would no longer be enough to violate the law.
What Is Protected Speech?
The First Amendment protects expression of belief from government interference. In other words, the government cannot censor your speech or conduct if you are trying to convey a message.
Most speech is considered protected from government restriction or interference. For a government law to restrict speech constitutionally, they must be able to pass the most stringent level of scrutiny. Under a strict scrutiny analysis, the government must provide a compelling government interest, and they must have narrowly tailored the law to achieve that interest.
There are lesser protected forms of speech such as obscenity and fighting words that only need to meet an intermediate level of scrutiny.
Should Lying about Earning Military Honors Be Protected Speech?
Although lies can be an annoyance, and even occasionally destructive, they remain protected speech depending on the circumstances.
Some lies are lesser protected than others. Some forms of defamation and falsehood in commercial speech are lesser protected, so the government only needs to pass an intermediate level of scrutiny to regulate the content of that speech. Also, lying for the sake of inciting a riot or crowd chaos is also lesser protected speech. Generally speaking, lies that cause some form of harm to at least one individual have a lower level of scrutiny than truthful expression.
However, the Supreme Court determined that the message conveyed in wearing medals is a message worthy of full protection, even if it is a fraudulent one. There are many reasons why these kinds of lies should remain protected speech. First of all, if the law were to apply to all circumstances, an actor portraying a military hero or veteran and wearing medals would be in violation of the law.
Second, if the Stolen Valor Act had not been updated in 2013 to include the “monetary” clause, then what would the harm be for someone to lie about earning medals for the sake of lying? When Congress first drafted the version of the Act in 2005, their intent was to basically prevent devaluing the “integrity of the military honors system” and the efforts that an individual went through to obtain those honors.
However, with that said, confirming someone’s military record is no longer as difficult as in the past. The government maintains databases of military records and search websites that are privately run such as the Home of Heroes can also provide results for whether someone has earned a particular medal. In the current era of Google, ferreting out the truth in a situation is no longer as difficult.
When Swisher testified during an attempted murder trial, he wore a purple heart. Wearing medals while on the stand as a witness have the tendency to bolster a witness’s credibility. After all, would a decorated war veteran, especially one who sacrificed his personal well-being to earn a purple heart, lie on the witness stand? Swisher’s testimony could have been taken under greater consideration because of his appearance as a decorated war veteran.
However, the falsehood of Swisher’s medals is not a sufficient amount of harm to make this form of lying less protected. Any case brought to trial will have testimony from a variety of witnesses, and it will have evidence supplied from a variety of sources. It becomes the juror’s duty to determine whether the evidence as a whole provides guilt beyond a reasonable doubt. Swisher’s testimony would not stand alone as the only form of evidence at that trial. So, Swisher’s false credibility is probably a minor issue compared to all the evidence presented as a whole during that trial.
But this is why the Stolen Valor Act had to undergo revision. The 2005 version lacked the tangible harm required for the government to regulate the fraudulent conduct. The current Stolen Valor Act now covers this essential element to ensure its constitutionality because not all lies are unworthy of protection.
Authored by Emily Yu, LegalMatch Legal Writer
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