United States v. Swisher, No. 11-35796 (9th Cir. 2014)
Annotate this CaseDefendant appealed his conviction for wearing military medals without authorization in violation of 18 U.S.C. 704(a). Defendant argued that the Supreme Court's decision in United States v. Alvarez, which struck down section 704(b)'s prohibition on making false claims regarding medals as facially unconstitutional, applies equally to section 704(a)'s prohibition on the unauthorized wearing of medals. The court concluded that defendant's argument that his conduct in wearing the medals qualifies as expressive conduct has been foreclosed by United States v. Perelman, which held that section 704(a) was not a content-based suppression of pure speech but rather criminalized the harmful conduct of wearing a medal without authorization and with intent to deceive. Because section 704(a) can be constitutionally applied to defendant's conduct, there was no violation of the Constitution or its laws. Accordingly, the court affirmed the judgment of the district court.
Court Description: Habeas Corpus. The panel affirmed the district court’s denial of Elven Joe Swisher’s motion pursuant to 28 U.S.C. § 2255 challenging a conviction for wearing military medals without authorization in violation of 18 U.S.C. § 704(a) (2002 ed.). Swisher argued that his conduct in wearing the medals qualifies as expressive conduct, and therefore the application of § 704(a) to him violated his First Amendment rights. The panel held that Swisher’s contention is foreclosed by United States v. Perelman, 695 F.3d 866 (9th Cir. 2012), cert. denied, 133 S. Ct. 2383 (2013), which concluded that the First Amendment does not prevent Congress from criminalizing the act of wearing military medals without authorization and with intent to deceive. Judge Tashima concurred in the judgment, but only under the compulsion of Perelman, with whose reasoning he disagrees.
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