Decided: November 9, 2012
The Fourth Circuit affirmed the constitutionality of 28 U.S.C. §§702 and 704(a), which makes it a crime to knowingly wear unauthorized military uniforms or insignia. The Fourth Circuit also affirmed the defendant’s convictions of making false statements in return for compensation from a federal agency and illegally converting federal funds to his own use. The Court held that laws banning the unauthorized wearing of uniforms and insignia would survive even “the most exacting scrutiny” reserved for expressive conduct. Finally, the court determined that the evidence presented at the district court met the elements required for the false statement and conversion charges.
Michael Delos Hamilton was a military veteran who was charged and convicted of four charges: making false statements in support of a claim for service related compensation to the U.S. Department of Veteran’s affairs; stealing and converting to his own use more than $30,000 of government money, wearing a military uniform without authorization, and wearing military medals and insignia without authorization. The first two charges stemmed from statements Hamilton made to a psychiatrist in order to receive disability benefits. Hamilton claimed he suffered from PTSD due to atrocities he witnessed while serving in Vietnam from 1963 until 1969. In reality, Hamilton was in the Marine Corps for less than a year in 1961, earning an honorable discharge when he injured his hand. He had received VA benefits due to the partial disability in his hand, and originally tried to receive PTSD compensation due to his hand injury. Hamilton was discharged after boot camp in 1961 and never served in Vietnam. The last two charges stemmed from Hamilton’s attendance at a ceremony in April 2010 recognizing Vietnam Veteran’s. Hamilton appeared at the ceremony in a Marine colonel’s uniform, decorated with numerous medals and insignia. Hamilton told the organizers that he earned the medals during his fictitious service in Vietnam. After the district court found Hamilton guilty on all four charges, Hamilton appealed claiming the prosecution did not offer sufficient evidence for the first two charges and that the laws for the second two charges were facially unconstitutional, or unconstitutional as applied to him.
The Fourth Circuit quickly affirmed Hamilton’s first two charges. In viewing the evidence in the light most favorable to the government, the Court found “substantial evidence” to warrant a conviction on both charges. The Court then had to turn to the constitutionality of 28 U.S.C. §§702 and 704(b). The Court stated that a broad reading of the laws could lead to absurd results, such as preventing a grandchild from wearing a grandfather’s war medals or an actor from wearing a uniform in a play. The Court took the approach taken by the Ninth Circuit and imposed an “intent to deceive” or scienter requirement into the laws to prevent absurd results. The Fourth Circuit then turned to the level of scrutiny applied to the two laws. Since this was not pure speech, but still expressive conduct, the Court was not sure to apply the lenient O’Brien standard, applied by the Ninth Circuit, or the most exacting scrutiny from Johnson. The Court assumed that the most exacting scrutiny applied, because it felt the law would still stand even under the higher scrutiny. The Court said the government had a compelling interest to do three things: prevent the potential debasement of military awards and uniforms; avoid implications that military honors are awarded on a frequent and routine basis; and avoid obstructions to the orderly administration of the chain of military command. Furthermore, the laws are narrowly tailored to serve that purpose. Hamilton and others argued that counter speech, such as a database listing all recipients of military medals and honors, were a less restrictive way to achieve the government’s interests. This approach was taken by the Supreme Court in the challenge to the Stolen Valor Act in Alvarez. The Court felt that since “seeing is believing” with military medals and uniforms, a database would be ineffective. In response to an as applied challenge, the Court saw nothing different about Hamilton’s conviction that required a different analysis.