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 purposes.
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 apply.
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 speech”:
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.”