In its opinion in United States v. Hamilton, the Fourth Circuit rejected First Amendment arguments and upheld the conviction of a veteran for the wearing a military uniform without authorization, in violation of 18 U.S.C. § 702; and the wearing military medals and other insignia (military medals) without authorization, in violation of 18 U.S.C. § 704(a) and (d).
Hamilton is a veteran, honorably discharged in 1962 from the Marine Corp. because of an accidental injury during training, but as the Fourth Circuit described, he “served a total of nine months and twelve days ofactive duty. During his active duty, Hamilton did not serve incombat or receive any awards, was not commissioned as anofficer, and was not deployed outside the United States.” Two of the charges against Hamilton involved fraudulent claims of disability, exceeding the original disability; the Fourth Circuit affirmed these convictions over arguments of insufficient evidence.
The First Amendment challenges to what the Fourth Circuit labels the “insignia convictions” arose from Hamilton’s appearance at a local Vietnam Veteran’s Association “recognition ceremony.” Hamilton, invited to speak as a last-minute substitute, and uncompensated, wore “the uniform ofa United States Marine colonel, including an officer’s swordand belt, and white gloves,” and adorned with many medals, including ” two Navy Crosses, four SilverStars, one Bronze Star, and seven Purple Hearts, among manyother awards displayed on the uniform.” While the Fourth Circuit noted that Hamilton’s speech contained false statements, such as his purported combat experiences, it stated that “the content of that speech has no impact on Hamilton’s insignia convictions.”
Indeed, the Fourth Circuit distinguished Hamilton’s “insignia convictions” from the content of his speech – – – and thus from the Supreme Court’s decision last term in United States v. Alvarez – – – by concluding that the “insignia statutes do notregulate pure speech but instead proscribe certain forms ofexpressive conduct.” Thus, it considered the lower standard of intermediate scrutiny as articulated by the United States Supreme Court in the 1968 case of United States v. O’Brien, arising from the burning of a draft card as a protest to the Vietnam War. Yet the Fourth Circuit held that even under a more demanding standard of exacting scrutiny, the insignia statutes were constitutional.
Its conclusion that the government interest was compelling rested on its conclusion that unauthorized wearing of uniforms and medals contributed to a dilution of their worth, citing Alvarez. As to whether the criminal prohibitions were narrowly tailored, the Fourth Circuit distinguished Alvarez, concluding that the alternatives Hamilton suggested were “less applicable to the interests underlying the conduct-based prohibitions of the insigniastatutes than the speech-based prohibition of 18 U.S.C.§ 704(b),” at issue in Alvarez. The Fourth Circuit’s analysis supporting the distinction is less than trenchant: the opinion stressed that:
the wearing of an unearned medal or uniformof an unearned rank is more convincing evidence of suchactual attainment than words alone, by constituting ostensible,visual “confirmation” that the wearer earned such honors. Asexpressed by a familiar adage, “seeing is believing.”
Thus, the alternatives approved in Alvarez – – – counter speech and a government database of recipients – – – were less effective. In sum, the panel concluded
that the analyses employed in the plurality and concurring opinions inAlvarez are inapplicable here. Although the governmentalinterests underlying the insignia statutes and Section 704(b)are similar, those interests are more greatly affected withrespect to the conduct-related prohibitions in the insignia stat-utes than the speech-related prohibitions in Section 704(b) [at issue in Alvarez].Moreover, the less burdensome alternatives identified by theplurality and concurrence in Alvarez, such as counterspeechand the possibility of a government-created database of Congressional Medal of Honor winners, are less feasible and less effective to counter the appearance created by the wearing of military uniforms and unearned military honors at issue in thiscase.
The panel’s rejection of Alvarez on the basis that Hamilton’s speech was more effective, rather than a conclusion that Hamilton’s speech was less protected, is a rather troubling one.
RR
[image: Bronze Star via]