In January, the 9th U.S. Circuit Court of Appeals threw out a case convicting a veteran of wearing unearned military medals on grounds that wearing the medals is a protected form of free speech.
Elven Joe Swisher was initially convicted of a misdemeanor under the Stolen Valor Act, which prohibits lying about military accomplishments.
In 2007, Swisher, Idaho, wore a Purple Heart on the witness stand in 2005 while testifying against David Roland Hinkson for soliciting the murder of a federal judge.
“Swisher testified that […] Hinkson offered him $10,000 to kill the federal judge presiding over Hinkson's tax-evasion case,” according to the Military Times. “Swisher said Hinkson was impressed after Swisher boasted that he killed ‘many men’ during the Korean War.”
According to prosecutors, Swisher was honorably discharged in 1957 without ever earning or receiving medals.
“Wearing a medal, like wearing a black armband or burning an American flag, conveys a message ‘by conduct that is intended to be communicative and that, in context, would reasonably be understood by the viewer to be communicative,’” reasoned the Court.
“The 9th Circuit interpreted the wearing of medals as conveying a message, which is protected by the First Amendment,” said Judge Ruth Hopkins, Dakota, who is also an Indian Country Today columnist. “Freedom of Speech can protect one's right to lie, as long as it's not under oath. Laws and morals are not necessarily one and the same.”
“Even though I have earned few medals, in my time in the military, this precedent has brought on waves of anger and sadness,” said Martie Simmons, Ho-Chunk, an Army veteran and Indian Country Today contributor. “Millions of troops have put their lives and their family’s lives on the line in order to protect our great nation, and for what? So some civilian can wear these badges of honor without the responsibility and burden each soldier endured for their country?”
“The same can be said for non-Natives wearing headdresses,” Simmons continued. “Native Americans have always revered those that have fought for our country or our tribal nations. Synonymous to the military, our tribes fight tirelessly to instill respect and integrity in us, and there are specific rules that are universal throughout Indian country. Wearing unearned medals or unearned feathers is an act that is egregiously frowned upon and speaks volumes of that person’s character.”
However, Hopkins says there is no such protection or precedent for fake war bonnets.
“If someone were to come into a federal court and argue against the wearing of war bonnets by, say, non-Native hipsters at a music festival, solely because war bonnets are earned and have substantial cultural significance, they would likely be defeated by a First Amendment argument,” Hopkins said. “This is largely due to the courts stunning lack of knowledge as far as Native Nations are concerned. Even the Supreme Court of the United States follows precedent that refers to us as 'savages.'”
“One would probably have a better chance of protecting war bonnets legally via trademark, or because of its historical importance,” she continued.
Both Hopkins and Simmons expressed their frustration over the ruling.
“This ruling only furthers the message that veterans are unimportant and their sacrifice means little,” Hopkins said. “Someone was wounded or died for that medal being sold on eBay, just so someone can have a cool Halloween costume, or steal the valor of actual medal recipients for personal gain. It disgusts me just as much as those who desecrate the war bonnet.”
“Just because it is now considered free speech doesn’t mean that it is morally sound to wear unearned medals,” Simmons said. “The ritualism of earning medals is deeply sacred to those that are willing to give of themselves for the betterment of our country. It’s disheartening to think that just anyone can wear these medals without doing what it takes to earn them.”
“If anything it furthers my belief that nothing in western society is sacred anymore,” said Hopkins. “Perhaps Native Nations venerate veterans more than the rest of the country? We still have warrior societies with Akicita who wear both military medals and war bonnets that they've earned. They hold a special place in our communities, one of honor and respect. Meanwhile, there are military servicemen putting their lives on the line for the United States of America, living on food stamps. No veteran should be without medical care or homeless either, yet that's what the federal government allows to happen year after year.”
President George W. Bush passed the Stolen Valor Act in 2006, only to have the U.S. Supreme Court declare it an unconstitutional violation of the First Amendment in 2012. In 2013, President Barack Obama signed a new law making it illegal to make financial gains from false military service claims.