- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Constitutional Law
- Date Filed: 09-26-2011
- Case #: 10-10571
- Judge(s)/Court Below: Circuit Judge Graber for the Court; Circuit Judges Hug and Silverman
- Full Text Opinion
Perelman served three months in Vietnam. “Twenty years later, he accidentally shot himself” and “claimed that the self-inflicted gunshot wound was a shrapnel injury sustained during his service in Vietnam.” He was awarded a Purple Heart, which he wore “to a national convention of the Military Order of the Purple Heart.” He was also granted disability benefits from the Veterans Administration. Upon discovering that Perelman's awards were fraudulently obtained, the government charged him with violating 18 U.S.C. §§ 641 and 704(a). Perelman moved to dismiss the charge regarding § 704(a) “on the ground that the statute facially violates the First Amendment.” When his motion was denied, Perelman “admitted the factual allegations and pleaded guilty.” He then appealed the denial of his motion to dismiss, claiming that § 704(a) is overbroad in that it criminalizes many legitimate ways of wearing military awards and uniforms that are protected by the First Amendment. The Court agrees that if the statute is read as Perelman suggests, it “might raise serious constitutional concerns.” The Court, however, declines to read the statute as broadly as Perelman does, and instead determines that “Congress intended to criminalize the unauthorized wearing of medals only when the wearer intends to deceive.” Using this reading, the statute does not criminalize uses of military medals and uniforms that would be protected by the First Amendment. However, the Court held it still criminalized Perelman's use of the medal, as his use was not “pure speech,” but rather “legitimately criminal conduct.” Further, when read narrowly, § 704(a) passes every element of the First Amendment test outlined in United States v. O'Brien. AFFIRMED.