![\"xous1vjnip0-benjamin-faust\"](\"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-content\/uploads\/sites\/8\/2017\/02\/xous1vjnip0-benjamin-faust.jpg\")
<\/p>\n<\/p>\n
By Jack Middough<\/a>; Staff Member (Vol. 15)<\/p>\n \u201cWhat you\u2019re doing right now is illegal,\u201d yelled former infantry Ryan Berk, in parts both enraged and incredulous, \u201cI\u2019ve worn that fucking uniform and I\u2019ve had friends get killed in Afghanistan wearing that fucking uniform<\/a>.\u201d Berk was documenting an incident of stolen valor, the act of making false statements or wearing the uniform or medals of United States military personnel. Unfortunately, these types of interactions have become germane, particularly around the holiday season, as frauds attempt to exploit holiday shopping deals reserved for veterans and active duty personnel. Originally codified as federal misdemeanors in 2005, the Stolen Valor Act has been the subject of several legal disputes, which lead to the Act\u2019s revision in 2013. The most recent case, United States v. Swisher, <\/em>cemented the Stolen Valor Act\u2019s legacy: an unconstitutional abridgement of freedom of speech which allows charlatans to dilute and besmirch the uniform of the United States military.<\/p>\n The Stolen Valor Act<\/strong><\/p>\n The Stolen Valor Act<\/a> was enacted in 2005 and criminalized the fraudulent representation of oneself as an active or former United States serviceman. Specifically, the Act targeted both verbal and physical representations: 18 U.S.C. \u00a7\u00a0704(a)<\/a> made it illegal to wear unauthorized medals, while \u00a7\u00a0704(b)<\/a> made it illegal to falsely state that one had been in the military. In enacting this legislation, Congress sought to penalize and dissuade individuals from exploiting the military\u2019s image for their own personal benefit, whether that benefit be favorable standing in social circles or the monetary gain of better discounts.<\/p>\n Legal Challenges<\/strong><\/p>\n United States v. Alvarez<\/em><\/a> was one of the first cases to challenge the Stolen Valor Act. After a man in Maine was arrested for falsely stating in a public meeting that he was a Congressional Medal of Honor Recipient, he challenged \u00a7\u00a0704(b) on the grounds that it was an unconstitutional abridgment of his right to freedom of speech. The Supreme Court agreed, and held that while the government\u2019s interest in protecting the honor and reputation of those in the United States military was important, the government needed to prove that the law was \u201cactually necessary\u201d to curbing this speech. Because the government did not provide enough evidence to suggest that counter-speech, the reliance on others to speak out to correct falsehoods in the public forum, would suffice to curb stolen valor, \u00a7\u00a0704(b) was deemed unconstitutional.<\/p>\n United States v. Swisher<\/em><\/a> involved a challenge to \u00a7\u00a0704(a). Defendant Swisher had been a Marine shortly after the Korean War. Swisher was honorably discharged in 1957, and on his discharge papers had listed no medals won. In 2001, Swisher filed a claim for service related PTSD for a covert Korean operation, of which he claimed to have been apart, during which he stated he was wounded and received several medals. A year later, the VA discovered that the claim had been fraudulent and ordered Swisher to repay for his claim benefits. In 2007, Swisher was indicted for 4 federal violations, among them a charge of violating the Stolen Valor Act by wearing unearned medals. A series of appeals followed to no avail, but after the decision in Alvarez<\/em>, Swisher re-appealed on First Amendment grounds and the case went before the Ninth Circuit. Applying Justice Breyer\u2019s intermediate scrutiny test from Alvarez<\/em>, the Ninth Circuit held that \u00a7\u00a0704(a) was unconstitutionally broad, and did not have the necessary limiting factors to narrowly tailor the statute. The holding in Swisher<\/em> now creates a circuit split with the Fourth Circuit in United States v. Hamilton<\/em><\/a>, which upheld \u00a7\u00a0704(a) under Justice Kennedy\u2019s strict scrutiny test from Alvarez<\/em>.<\/p>\n