Wear and tear: First Amendment takes another bite out of law protecting military medals

United States v. Swisher, No. 11-35796 (9th Cir. Jan. 11,
2016) (en banc)
H/T Eric Goldman.
The facts of Swisher
are colorful (a murder trial, at which he was not the defendant, is involved) but irrelevant.  United
States v. Alvarez
, 132 S. Ct. 2537 (2012), invalidated a statute
prohibiting lying about being awarded military medals.  Reversing circuit precedent, the en banc
court here also invalidated a prohibition on wearing such medals without
authorization.  Since the statute has
been amended to remove the mere prohibition, this particular issue won’t come
up again, but the First Amendment analysis is of interest for trademark
Under Alvarez,
false statements aren’t for that reason unprotected; punishment is confined to
particular contexts.  The plurality’s
exacting scrutiny required (1) a compelling government interest; (2) that the
restriction at issue was necessary to achieve; (3) and that there was a direct
causal link between the restriction imposed and the injury to be prevented.  (Question: what work does (3) do?  Is there a case where the restriction would
be necessary but there was no direct causal link between restriction and
injury?)  Here, though the interest in
protecting “the integrity of the military honors system”  was compelling, the government’s interest
could be satisfied by counterspeech, including a “Government-created database
[that] could list Congressional Medal of Honor winners.” The government also
failed to prove “its claim that the public’s general perception of military
awards is diluted by false claims.”
Justice Breyer concurred, using intermediate scrutiny.  He would (1) take “account of the seriousness
of the speech-related harm the provision will likely cause”; (2) consider “the
nature and importance of the provision’s countervailing objectives,” and (3) weigh
“the extent to which the provision will tend to achieve those objectives, and
whether there are other, less restrictive ways of doing so.”  Other statutes punishing false statements were
more acceptable, he found, because they typically “narrow the statute to a
subset of lies where specific harm is more likely to occur.”  Breyer noted that a more limited statute could
have adopted these requirements by (1) requiring a showing that the false
statements caused a specific harm, (2) requiring that the lies be made in a
context “where such lies are most likely to cause harm,” or (3) focusing on the
more important military awards that Congress most values.
Previously, the 9th Circuit held that Alvarez didn’t control the false
medal-wearing statute because the statute regulated conduct, not speech.  Thus, it was more akin to (ok) impersonation
statutes or statutes prohibiting “the unauthorized wearing of military
uniforms.”  Under O’Brien’s test for regulating expressive conduct, the government
had “a compelling interest in ‘preserving the integrity of its system of
honoring our military men and women for their service and, at times, their
sacrifice.’”  The government’s interests
were “unrelated to the suppression of free expression” because the statute
“does not prevent the expression of any particular message or viewpoint.” And
third, “the incidental restriction on alleged First Amendment freedoms” was “no
greater than is essential to the furtherance of that interest,” because, “even
if § 704(a) is not the most effective mechanism, in at least some measure it
promotes the goals of maintaining the integrity of the military’s medals and
preventing the fraudulent wearing of military medals.”
The en banc court reasoned that, if a law suppresses conduct
to regulate the communicative nature of that conduct, then strict scrutiny
applies, not O’Brien.  Under Reed,
if “a regulation of speech ‘on its face’ draws distinctions based on the
message a speaker conveys,” it is a content-based regulation.  This was exactly what the law here did.  “Wearing a medal, like wearing a black
armband or burning an American flag, conveys a message.”  The law was designed to stop a particular
message: “the misappropriation or distortion of the message of valor conveyed
by a medal.” Thus, O’Brien didn’t
Under Justice Breyer’s concurring opinion in Alvarez, the law here failed as well,
lacking the same necessary limiting features that other laws against false
statements have.  The government said
that this law was like the Lanham Act’s ban against trademark infringement,
since it prevented “misappropriation” of government property.  But Justice Breyer rejected a similar argument,
albeit incoherently; trademark law focuses on “commercial and promotional
activities” and requires showing likely confusion, which makes it more likely
that the feared harm is involved.
Circuit precedent said that “[t]he use of a physical object
goes beyond mere speech and suggests that the wearer has proof of the lie, or
government endorsement of it,” but the en banc majority saw no basis for the
claim that wearing a medal is more probative than speaking a lie. (Citing Kevin
Jon Heller, The Cognitive Psychology of Circumstantial Evidence, 105 Mich. L.
Rev. 241 (2006) (noting, as an empirical matter, that jurors give more weight
to testimony, such as eyewitness identifications and confessions, than to
physical evidence, such as blood and fingerprints).)  Given that military medals are freely
available for purchase, “the probative value of owning a medal or other
military decoration is minimal.” Regardless, “wearing a medal has no purpose
other than to communicate a message,” so it was core protected symbolic speech.
Nor was the ban like laws barring impersonation of
government officials, or the unauthorized wearing of military uniforms, which
the Alvarez Court assumed (without
deciding) were valid.  Impersonation
statutes typically focus on impersonation, not mere speech, and require
showings that others were deceived. 
Other laws, limited to false representations in the contexts of banking,
finance, or law enforcement, where “a tangible harm to others is especially
likely to occur,” were distinguishable.
Although the government had a strong interest in avoiding
dilution of “the country’s recognition of [award recipients’] sacrifice in the
form of military honors,” a narrower law, plus a register of awards, could also
serve the government’s interests equally effectively.
Judges Bybee, N.R. Smith, and Watford dissented, and would
have viewed the case as one involving deceptive conduct, not just mere
speech.  The dissent pointed to a number
of other now-threatened laws: bans on unauthorized wearing of a uniform of a
friendly nation; wearing of the Red Cross (or related international symbols)
with the fraudulent purpose of inducing the belief that the wearer is a member
or agent of the Red Cross (or related national/international organizations).
The dissent disagreed with the majority that the “quantum of
conduct involved in pinning on a medal . . . is not materially different from
the quantum of conduct involved in speaking or writing.”  If that were true, the dissent contended,
then we could save ourselves
trouble and money by simply announcing that we are awarding medals without
actually giving the recipients anything. But as anyone knows who has witnessed
the President awarding the Congressional Medal of Honor or a promotion ceremony
pinning a new officer—or even an Olympic medals ceremony or a Cub Scout court
of honor—there is value, both symbolic and tactile, in the awarding of a
physical emblem. If there is important value in the act of awarding a physical
medal, there is important value in the wearing of it.
Here the dissent is nitpicking about the phrase “quantum of
conduct,” whatever that means.  The
majority means wearing a medal is an act in the world that is fundamentally
communicative; speaking and writing also have physical aspects, but the extent
to which that makes them “conduct” is usually zero given why they are usually
regulated, and so here.  The dissent says
that the physical act of receiving (and thus wearing) a medal means more than just announcing that
medal, which is also true, but (as is inherent in the dissent’s own
formulation), the act remains almost entirely communicative, with the physical
aspects serving to confirm the communication, just as standing at attention as
the national anthem is sung confirms a communication of respect.
The dissent also would have found that this particular ban
risked less of a chilling effect, because you can’t carelessly wear a medal as
you can carelessly claim to be a medal winner. 
(Everybody, majority and dissent, would require intent to deceive for
liability here.)  There was also less
ambiguity in wearing a medal than in speaking—the risk of misinterpretation or
“censorious selectivity” by prosecutors was less.
Moreover, the power of visuals meant that falsely wearing a
military medal did more harm to the govenrment’s interest than “mere false
Even if the wearer is later exposed
as a liar, the utility of the medal as a symbol of government commendation has
been undermined. The public can no longer trust that the medal actually is a
symbol of government commendation …. It is one thing to say that one has been
decorated; it is quite another to produce the evidence for it by appropriating a
symbol that the government, through decades of effort, has imbued with a
particular message. Unlike false statements, which may work harm by giving the
public the general impression that more personnel earn military honors than
actually do, the false wearing of medals directly undermines the government’s
ability to mark out specific worthy individuals, because the symbol the
government uses to convey this message can no longer be trusted. This may also
mean that those who rightfully wear a military medal are less likely to be
believed…. [T]he wearing of an unearned medal offers more convincing proof of
the lie than a mere false statement.
Thus, a medal is like a trademark.  [Actually, the dissent is claiming that the
physical medal is like a trademark; apparently the name of the medal is not as
much like a trademark.]  “When those who
are unworthy are allowed to wear the medal, the government can no longer
identify its heroes in a way that is easily discernible by the public.”  Of course, this harm doesn’t occur “when an
unearned medal is worn for purposes of art, theater, political expression, or
the like.”  It’s only when the
medal-wearer tries to convey that he’s actually earned a military honor that
the medal’s symbolic value is diluted.  
[Under this rationale, it follows, trademark dilution is
unconstitutional, despite the way Justice Breyer tosses around “confusion” and
“dilution” as synonyms.]
Also, the government had fewer less restrictive alternatives
to banning the false wearing of a medal than it did to banning false claims of
military honors.  “[T]he fact that the
lie here is told in a more effective way, with physical proof in the form of
the medal to support the false claim of entitlement, increases the harm caused
by the lie and also means that other, less restrictive means are less likely to
be effective.”  Counterspeech would be
less effective, because, as the Fourth Circuit held, “speech may not
effectively counter that which a person sees.”  Plus, if a person has to check a database to
confirm that a medal was honestly earned, “the purpose of the medal itself is
utterly defeated. If we can no longer trust what we can see, the only honor the
United States can confer on its heroes is a listing in a database.”

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