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9th Cir. Overturns Conviction for Military Medals Con-Man

By Jonathan R. Tung, Esq. on January 13, 2016 | Last updated on March 21, 2019

The Ninth Circuit swooped in for the rescue of a man convicted under Stolen Valor Act for having unlawfully worn military decorations and medals that he did not earn. The court ruled that the section of the act under which he was convicted was unconstitutional.

There was dissent among the judges. Hon. Jay Bybee, who wrote the dissenting opinion, countered that the majority underestimated the negative effects of disallowing criminal punishments for flouting the law; and that letting persons wear medals they did not earn would damage public trust and cause confusion.

Wearing Medals to Mooch off the State

Elven Joe Swisher of Idaho, who had previously served with the Marine Corps, wore military decorations that he did not earn while in service. The medals he wore included the Silver Star and Purple Heart, both medals awarded for distinct valor.

It turns out he made it all up. No records within the Navy could be found to substantiate that he had ever been awarded any medals during his time with the Marines. But Swisher later claimed he earned the medals and used this claim in his application for PTSD-benefits. He later forged government documents to substantiate his story.

Now That Takes Some Guts: Round Two

In an unrelated incident, Swisher had the audacity to wear the medals while testifying in court as a witness in murder-for-hire case against a fellow Idaho resident. This was the public's first real exposure to Swisher.

Moot or Not, Here We Go

The section under the Stolen Valor Act by which Swisher was convicted had since been overturned. Nevertheless, the circuit applied a rule under Alvarez that deceitful conduct amounting to lies does not fall under the classes of speech that do not get First Amendment protection.

But the dissent approached the issue from a slightly different angle. Lying through speech, it argued, suffers from ethical gray-areas that the wearing of a military uniform does not. Allowing Swisher to wear military medals would cause confusion not adequately mitigated by computer database, for example.)

Regardless of which side you take, you must admit it takes gall to wear those medals to court...

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