Stolen Valor: Court Rules Wearing Unearned Military Medals Is Protected Free Speech Under First Amendment

Yesterday, the U.S. 9th Circuit Court of Appeals decided, in an 11-judge ruling, that the actions of an Idaho veteran of the U.S. Marines who was convicted under the Stolen Valor Act was protected by his rights under the First Amendment to the U.S. Constitution, and ordered that his conviction be overturned, according to the Los Angeles Times.

As a result, the portion of the Stolen Valor Act that deems it illegal for individuals to wear unearned military medals was found to be unconstitutional, and that wearing medals that one was not actually awarded is a protected form of “free speech,” according to NBC.


Ex-marine Elven Joe Swisher was said to have testified at a 2005 trial involving the planned murder of a federal judge while wearing a medal that he had not been awarded: a Purple Heart. Swisher was reportedly offered $10,000 to kill the judge by a man named David Roland Hinkson after he had told the man that he had been responsible for the deaths of “many men” in Korea. The judge Hinkson was reportedly targeting was said to have be adjudicating a case involving tax-evasion charges against him.

Additionally, the veteran was reported to have been photographed in 2007 wearing “the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, and the Navy and Marine Corps Commendation Medal with a Bronze ‘V.’ “

While Elven Joe Swisher did serve as a Marine and was said to have been honorably discharged in 1957, documents filed by prosecutors who convicted Swisher under the stolen valor legislation in 2007 were said to demonstrate that he had never been awarded any medals during his service at all.

Further, documents were said to demonstrate that Swisher did not enlist in the Marines until one year after the Korean War ended; he was reportedly never wounded during his military service and could not have killed “many men” in the war, as he has reportedly suggested.

In 2012, the portion of Swisher’s stolen valor conviction relating to dishonest statements he made with regard to having been awarded the medals was overturned, which resulted in the law being rewritten. Yesterday’s decision is said to overturn the law once again, this time with regard to the actual act of wearing unearned military medals.

The circuit court judges’ ruling was said to have focused on the fact that wearing a military medal, even one that was not legitimately earned, conveys a message, earning it protection under the First Amendment.

After the version of the Stolen Valor Act that was signed into law by President George W. Bush in 2006 was struck down as unconstitutional in 2012, the rewritten legislation was signed into law by President Barack Obama in 2013, according to Stars and Stripes. While the newest version of the law allows people to wear and make claims about medals that they did not earn, it specifically prohibits people from profiting through the use of stolen valor, or claiming credit for unearned military awards; there is no indication that Swisher made any such attempts in the instances he was shown to wear unearned military medals.

In August 2015, a Canadian man, Frank Gervais, who appeared in a televised interview on Remembrance Day, the Canadian version of Veteran’s Day, while wearing an ill-assembled collection of military memorabilia that several Canadian service members spotted as being out-of-place, was sentenced to 50 hours of community service and 12 months of probation for his stolen valor, according the Toronto Star. There has been no word on any challenges to the Canadian Charter of Rights and Freedoms attempting to uphold Gervais’ right to free speech.

U.S. Marine Colonel Mitchell Paige, who lived from 1918 to 2003, was awarded at least 13 military medals, including the Medal of Honor, the Purple Heart, and the World War II Victory Medal. The colonel was reported to have single-handedly stopped an entire Japanese regiment in the Soloman Islands at the Battle of Guadalcanal in 1942 after the rest of his unit was either killed or too injured to continue fighting. In 1994, the retired Marine successfully lobbied U.S. Congress to pass legislation to make it an offense, carrying a $100,000 fine and up to one year in prison, for falsely wearing a U.S. Medal of Honor, as reported by USA Today.

[Photo by Alex Wong/Getty Images]