First Amendment challenges to insignia convictions fail

US v. Hamilton:  Just in time for Veteran’s Day, the Fourth Circuit issues an opinion that protects the dignity of military uniforms and insignia, by rejecting First Amendment challenges to convictions under 18 U.S.C. § 702, for wearing a military uniform without authorization, and 18 U.S.C. § 704(a) and (b), the wearing of medals and other insignia without authorization.

Appellant Hamilton had enlisted in the United States Marine Corp in July 1961; while he was in training at Camp Lejeune, North Carolina, Hamilton received a permanently disabling injury to his hand. He received an honorable discharge from the military in 1962. His attempts to re-enlist in 1966 were denied.

In April 2010, Hamilton appeared at a Vietnam Veterans’ Recognition Ceremony, wearing the full military uniform of a colonel in the Marines, as well as many medals including Navy Crosses, Silver Stars, Purple Hearts, and a Bronze Star. The insignia convictions arose from Hamilton’s choice of attire to this event. On appeal, Hamilton argued that his convictions for wearing a military uniform and medals without authorization violated his First Amendment rights.

First, Hamilton argued that the statutes, as applied to him, were facially invalid, that the government’s interests underlying these statutes were related to the suppression of expression, and that the most exacting scrutiny should apply to any constitutional analysis of the statutes. Moreover, Hamilton argued, the statutes cannot survive exacting scrutiny because they were not narrowly tailored to serve the government’s interest in protecting the integrity of the military and preventing the deceptive wearing of uniforms and medals.

The Fourth Circuit determined that the level of scrutiny required was the lower standard of intermediate scrutiny because the "insignia statutes do not regulate pure speech but instead proscribe certain forms of expressive conduct," and "expressive conduct is not entitled to the same degree of protection under the First Amendment as is pure speech." This is the same level of scrutiny that the Supreme Court applied when considering the case of the burning of draft cards in United States v. O’Brien. Moreover, the Fourth Circuit determined that even under a more harsh standard, the statutes would pass constitutional muster, as the governmental interest at stake was compelling, particularly as construed with a limiting "intent to deceive" element.

The "most exacting scrutiny" requires the government to establish that the "regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." The Fourth Circuit decided that the government interest is "compelling" because the deceptive wearing of military uniforms and medals could weaken the symbolic value of these items, and frustrates the government’s efforts to ensure that such honors are awarded only to a limited number of deserving recipients.

The statutes are narrowly drawn, according to the Fourth Circuit, as the statutes seek to "ensure that the individuals displaying these honors to the general public are those who actually have receive such honors." Additionally, the statutes further the government’s interests in maintaining the orderly administration of military command. Further, the statutes help limit the demand in a ‘secondary market’ for symbols of high military achievement.

In addition to his facial challenge, Hamilton also argued in his brief that the statutes were unconstitutional as applied to him. He asserted that the uniform and medals that he wore to the Recognition Ceremony gave his words greater impact that had be worn street clothing. The Fourth Circuit found no merit in Hamilton’s as-applied argument.

The Constitutional Law Profs Blog found aspects of this decision troubling.