Now any American can wear an honorary war medal – whether or not it was earned, a federal appeals court ruled Monday.
Elven Swisher of Idaho, who served in the Marines from 1954 to 1957, wore an unearned Purple Heart medal in 2005 while testifying as a prosecution witness in a criminal court case, leading authorities to investigate his military history. Investigators discovered Swisher did not receive any medals during his service, and in 2007 he was convicted of violating the Stolen Valor Act.
But a specially convened 11-judge panel of the 9th US Circuit Court of Appeals overturned Swisher’s conviction Monday in the name of First Amendment rights, consequently overturning part of the Stolen Valor Act that deems wearing unearned military medals illegal.
“It’s unfortunate. Obviously if someone didn’t earn the decoration, they shouldn’t have the ability to claim it,” Purple Heart recipient Zachariah Fike told The Christian Science Monitor in a phone interview Tuesday. Fike is also the founder of Purple Hearts Reunited, a non-profit organization that seeks to return lost or stolen military metals to veterans and their families.
“It’s surprising to see the court’s ruling, but this has been an issue for quite some time,” he adds.
In 2005, President George W. Bush signed the Stolen Valor Act into law, making it a federal misdemeanor to falsely represent oneself as having received any military decoration. But in 2012, the US Supreme Court deemed the act unconstitutional under First Amendment free speech protections in the case United States v. Alvarez.
After the Alvarez case in 2012, Congress passed a new, revised law that intentionally skirted the First Amendment argument by making it a crime to financially profit by lying about military service. President Obama signed the revised Stolen Valor Act into law in 2013.
But Swisher’s case overturns a prominent provision of the 2013 Act, legally allowing anyone to wear a Purple Heart.
“The value of a military medal lies not in the materials of which it is comprised, but in its message,” Circuit Judge Sandra Ikuta writes in the majority opinion. “Wearing a medal without authorization, therefore, generally communicates the false message that the wearer is entitled to such recognition and gratitude…. Wearing a medal has no other purpose other than to communicate a message.”
Judge Ikuta further explains that because wearing a medal is a method of symbolic speech, and the 2013 Stolen Valor Act prevents the unauthorized wearing of a medal; the 2013 Stolen Valor Act effectively regulates speech and violates the First Amendment.
But the three dissenting judges say the majority opinion is flawed and that its fundamental argument is wrong: Falsely wearing a medal is conduct, not speech.
“The majority today holds that Swisher’s conduct is a form of speech entitled to the same protection as Alvarez’s actual speech. I beg to differ.” Circuit Judge Jay Bybee wrote in his dissent, with whom Circuit Judges Randy Smith and Paul Watford joined. “The law has always been able to tell the difference between conduct and speech, even when the conduct may have some communicative value.”
Opponents agree with Ikuta that honorary medals have a powerful message, but this is the same reason why they want to protect it.
“A lot of veterans would agree that this is taking away from those who have shed their blood or even died in combat – taking away the legacy from those who have really earned the right to wear the medal,” says Mr. Fike.
And Fike says a population of false recipients continues to grow because the US has no central tracking system for military honors or awards.
“1.8 million have been awarded [the Purple Heart], but there is no database to record them,” says Fike. “At the end of the day, it’s pretty easy to say you have a Purple Heart because it is very hard to verify. It’s becoming a pandemic in our country.”