Wednesday, October 29, 2014

[Ed. note -- Jon asked me to step in for a few days while he's out of the office.]
US v. Swisher, No. 11-35796 (Ikuta with Alarcon; concurrence in judgment by Tashima). 
Isn't this case déjà vu?  The defendant wore some medals that he didn't earn, and the government punished him for it under 18 U.S.C. § 704.  Didn't the Supremes rule that this amounted to protected speech?  That was the basis for the defendant's § 2255 motion.

Well, it's not exactly that straightforward.  In Alvarez, 132 S. Ct. 2537 (2012), the Supremes held in fractured opinions that a false claim about getting a medal under 18 U.S.C. § 704(b) was protected speech.  But later the Ninth Circuit, in US v. Perelman, 695 F.3d 866 (9th Cir. 2012), held that falsely wearing a medal under § 704(a) was not protected speech.  Is Perelman still controlling?  The 9th holds "yes" as precedent controls.  The court thus affirmed the denial of the defendant's § 2255 motion.  Wearing medals is lesser speech than claiming to have earned them.  Tashima concurs only in the judgment, gnashing his teeth with Perelman's reasoning and believing that wearing is also akin to speech.  Grudgingly going along, his concurrence is a call for en banc review.

The decision is here:



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