United States v. Elven Swisher
2016 U.S. App. LEXIS 375
| 9th Cir. | 2016Background
- Elven Swisher, a discharged Marine, presented a forged DD-214 showing multiple high-level decorations and was later photographed wearing those medals at a Marine Corps League event.
- Swisher obtained VA disability benefits based in part on the forged paperwork; the VA later determined the DD-214 was fraudulent and sought repayment.
- A grand jury indicted Swisher under 18 U.S.C. § 704(a) (pre-2013 text) for knowingly wearing unauthorized military medals, along with related fraud and false-statement charges.
- A jury convicted Swisher; he exhausted direct appeals and then filed a § 2255 petition arguing his § 704(a) conviction violated the First Amendment in light of United States v. Alvarez.
- The Ninth Circuit en banc reviewed whether Alvarez’s reasoning (invalidating § 704(b), which proscribed false verbal/written claims of awards) extends to § 704(a)’s prohibition on wearing unauthorized medals.
- The court held § 704(a) regulates symbolic speech, is content-based, and—applying Alvarez (both the plurality and Justice Breyer’s concurrence)—is unconstitutional as applied to Swisher.
Issues
| Issue | Plaintiff's Argument (Swisher) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| Whether § 704(a) regulates protected speech or noncommunicative conduct | Wearing medals is symbolic expressive conduct equivalent to speech; thus § 704(a) burdens speech | Medal-wearing is conduct (not speech) aimed at misappropriation of government symbols; O'Brien applies | Court: Wearing medals is symbolic speech; § 704(a) regulates expression (content-based) |
| Whether § 704(a) is content-based or content-neutral | N/A (issue framed by court) | Government argued statute targets conduct and property interests, not message | Court: statute is content-based because its purpose is to suppress the communicative impact of wearing medals |
| Appropriate level of scrutiny and whether § 704(a) survives | § 704(a) must pass First Amendment review under Alvarez standards (Breyer/ plurality); it fails intermediate/exacting scrutiny | § 704(a) targets deceptive conduct, is analogous to impersonation/uniform statutes, and serves compelling interest; O'Brien or strict scrutiny could be satisfied | Court: Applying Breyer’s intermediate balancing and the Alvarez plurality’s exacting scrutiny, § 704(a) is not sufficiently narrowly tailored and fails First Amendment review |
| Whether Perelman (upholding § 704(a) under O'Brien) controls | Swisher: Alvarez supersedes Perelman; Perelman misapplied O'Brien because statute targets communicative impact | Government relied on Perelman and argued distinction between conduct and speech saves § 704(a) | Court: Overrules Perelman to the extent inconsistent; Perelman erred in treating § 704(a) as content-neutral conduct regulation |
Key Cases Cited
- United States v. Alvarez, 132 S. Ct. 2537 (2012) (Supreme Court plurality and concurring opinions holding § 704(b) unconstitutional and framing standards for false speech)
- United States v. Perelman, 695 F.3d 866 (9th Cir. 2012) (panel decision construing § 704(a) as conduct and applying O'Brien; overruled here to the extent inconsistent)
- United States v. O'Brien, 391 U.S. 367 (1968) (establishes intermediate scrutiny test for content-neutral regulations of conduct)
- Texas v. Johnson, 491 U.S. 397 (1989) (recognizes symbolic conduct as protected speech and distinguishes content-based vs. content-neutral regulation)
- Schacht v. United States, 398 U.S. 58 (1970) (addressing limits on regulating uniforms in expressive performance; discussed as distinguishable)
- United States v. Hamilton, 699 F.3d 356 (4th Cir. 2012) (analyzed § 704(a) and reached a different conclusion on scrutiny and constitutionality)
- Marks v. United States, 430 U.S. 188 (1977) (doctrine for identifying the holding of fractured decisions; noted but not dispositive here)