9th Circuit panel backs law against medal fraud

Tuesday, September 27, 2011

A federal law that prohibits the unauthorized wearing of military medals does not violate the First Amendment, a federal appeals court panel has ruled.

The case involved David M. Perelman, a Vietnam veteran, who falsely claimed he had been shot in the war when in reality he accidentally shot himself in the right thigh 20 years after his combat action. However, his representations gained him a Purple Heart, other medals and more than $180,000 in disability benefits.

After the government discovered the fraud, it prosecuted Perelman for obtaining disability benefits under false pretenses and for wearing the Purple Heart without authorization.  Perelman pleaded guilty but reserved the right to challenge the constitutionality of the law prohibiting his wearing of the military medal.

The law in question, 18 U.S.C. Sec. 704(a) provides in part: “Whoever knowingly wears … any decoration or medal authorized by Congress for the armed forces of the United States … except when authorized under regulations … shall be fined under this title or imprisoned not more than six months, or both.”

Perelman contended that the law violates the First Amendment on its face, because it is too broad and would prohibit actors, grieving relatives of medal winners, costumed revelers and people making fashion statements from wearing military medals.

“The statute could be read as broadly as Defendant suggests,” wrote the unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals in its Sept. 26 opinion in United States v. Perelman. “We agree with Defendant that such a broad statute might raise serious constitutional concerns.”

However, the panel said the statute should be read to apply only in situations where the wearer intended deception. “In our view, Congress intended to criminalize the unauthorized wearing of medals only when the wearer intends to deceive,” the panel wrote. “Accordingly, we hold that a person violates 18 U.S.C. § 704 only if he or she has an intent to deceive.”

Perelman had argued that the 9th Circuit should follow its earlier panel decision in United States v. Alvarez (2010, rehearing denied, 2011), in which the appeals court invalidated a different portion of the law, the Stolen Valor Act, which criminalizes making false statements about military honors.

But the 9th Circuit in Perelman reasoned that the other provision, codified at 18 U.S.C. § 704(b), criminalizes pure speech, whereas the provision prohibiting the wearing of medals involves conduct. The panel reasoned that “the distinction between pure speech and conduct that has an expressive element separates this case from Alvarez.”

The panel relied in part on the U.S. Supreme Court’s decision in Schacht v. United States (1970), in which the Court invalidated a law that allowed actors to wear military uniforms only if they refrained from criticizing the government. In this ruling, the high court said a law making it an offense to wear military uniforms without authority was valid on its face.

Because the 9th Circuit determined that the 18 U.S.C. Sec. 704 law involved both speech and conduct, it applied a test from the U.S. Supreme Court’s draft-card burning decision United States v. O’Brien (1968). Under the O’Brien test, a regulation is constitutional if the government has the power to pass the law, the law serves a substantial government purpose, the government interest is unrelated to the suppression of free expression and the law is narrowly tailored.

Perelman accepted in his arguments that the government had the power to regulate the wearing of military medals. The appeals court determined that the government had a “compelling interest in preventing the intentionally deceptive wearing of medals.” The 9th Circuit reasoned that the government’s interest was not related to suppressing free speech because it applied to any particular message or viewpoint. Finally, the appeals court said that the law was narrowly drawn and only incidentally burdened speech.

Tags: ,