Academic journal article Harvard Law Review , Vol. 126, No. 7
While the First Amendment guarantees freedom of speech, certain categories of expression have long been deemed outside the scope of the Amendment. (1) Various types of fraudulent speech--including perjury, impersonation of a government officer, and deceptive advertising--do not receive constitutional protection. (2) Before the Supreme Court's 2012 decision in United States v. Alvarez, (3) however, the "general constitutional status of false statements of fact" remained "murky at best." (4) The Court took a step toward resolving this uncertainty in Alvarez, where a plurality of the Justices declared the absence of "any general exception to the First Amendment for false statements." (5) Recently, in United States v. Hamilton, (6) the Fourth Circuit upheld against First Amendment challenge two federal laws (the "insignia statutes" (7)) that criminalize the unauthorized wearing of military uniforms and medals. While the court appropriately concluded that the statutes survive strict scrutiny, it departed from Supreme Court precedent by justifying the laws in part on the basis of the persuasiveness of deceptive expression, threatening to complicate further a thorny area of First Amendment law.
Several months after Michael Delos Hamilton enlisted in the U.S. Marine Corps in 1961, he sustained a hand injury that resulted in his discharge and an award of monthly disability benefits by the Veterans Administration (now known as the U.S. Department of Veterans Affairs) (VA). (8) In 2010, Hamilton lied about his military service after he volunteered to help with a Vietnam Veterans' Recognition Ceremony, claiming to be a combat veteran. (9) At the event, Hamilton delivered a speech dressed in the uniform of a U.S. Marine colonel, decorated with rank insignia and a number of awards and medals, none of which he had earned. (10) As a result of his appearance at the ceremony, Hamilton was charged with wearing a uniform without authorization in violation of 18 U.S.C. [section] 702 and with wearing military medals and other insignia without authorization in violation of 18 U.S.C. [section] 704(a) and (d). (11) After a jury returned a conviction, the district court sentenced Hamilton to sixteen months in prison. (12) Hamilton appealed. (13)
The Fourth Circuit affirmed. Writing for the panel, Judge Keenan (14) addressed Hamilton's "insignia convictions" for unauthorized wearing of a military uniform and medals, (15) reviewing de novo Hamilton's claim that 18 U.S.C. [section] 702 and [section] 704(a) facially violate the First Amendment. (16) Judge Keenan first addressed the scope of the insignia statutes, grouping the two laws together in her analysis. She noted that a broad reading of the statutes, which would criminalize the unauthorized wearing of military uniforms or medals "under any circumstances," (17) could pose a constitutional issue as applied to, for example, individuals who wear a military uniform as a Halloween costume or in a theatrical production. (18) The panel therefore applied the constitutional avoidance canon and construed the insignia statutes as prohibiting unauthorized wearing of military uniforms and medals only if the wearer had an intent to deceive. (19)
Next, the panel considered which level of scrutiny to apply to the challenged laws. (20) Judge Keenan observed that the government has more leeway to regulate expressive conduct--for example, burning military draft cards in antiwar protest (21)--than oral or written speech, so long as the suppression of free expression is not the government's purpose. (22) But where the governmental interest in regulating conduct is aimed at the suppression of expression, strict scrutiny--under which a statute must be necessary to serve a compelling state interest--applies. (23) She acknowledged that under the court's "intent to deceive" limiting construction, intentionally deceptive unauthorized wearing may involve expressing the false message that the individual actually earned the rank or medals displayed. …