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As I understand, per 18 U.S. Code § 704 - Military medals or decorations, it is illegal to produce replicas of Medals of Honor, or any United States military decorations.

However, as I have seen in a multitude of American motion pictures and television series, Medals of Honor along with other medals appear frequently.

I would like to know how it is legal for the production to either produce or own such replicas.

  • If I recall correctly, the "Stolen Valor Act" which made it a crime to have received military honors when you had not in fact received them was held to be unconstitutional. – ohwilleke Aug 5 '17 at 0:07
  • Correct, but the above USC still remains in effect, to the best of my knowledge. – user13023 Aug 5 '17 at 0:11
  • The fact that the law is on the books doesn't mean that it is constitutionally enforceable. It is an unconstitutional law that remains on the books anyway. Similarly, most of the U.S. flag code has been held to be unconstitutional but it is still on the books. Discussion at en.wikipedia.org/wiki/Stolen_Valor_Act_of_2013 – ohwilleke Aug 5 '17 at 0:13
  • So how do you explain away the manufacture and use of replica medals prior to the Act being struck down? – user13023 Aug 5 '17 at 0:19
  • People often ignore the law, for all sorts of reasons, especially when the law is likely to be unconstitutional and isn't a law enforcement priority. – ohwilleke Aug 5 '17 at 0:47
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18 U.S. Code § 704 is a statute called the Stolen Valor Act. The earlier version enacted in 2006, which simply made it illegal to produce replicas of Medals of Honor, or any United States military decorations was declared unconstitutional in the case of United States v. Alvarez as a violation of free speech rights.

The statute was amended in 2013 with an intent to make it constitutional, and as currently in force, it is limited "to fraudulent claims about military service to subject to a fine, imprisonment for not more than one year, or both for an individual who, with intent to obtain money, property, or other tangible benefit, fraudulently holds himself or herself out to be a recipient of:" various military honors.

An actor in a movie or television series is not fraudulently holding himself or herself out to be a recipient of military honors. Everybody knows that it is a fictional story and that the person who plays the character in the movie or on TV isn't the actual person whom they depict on TV or in a movie. Therefore, this is outside the scope of the statute.

The core provisions of the current version of the statute read as follows (the remainder sets enhanced punishment for certain kinds of really special honors and provides some definitions of certain kinds of honors) (emphasis added):

(a)In General.—

Whoever knowingly purchases, attempts to purchase, solicits for purchase, mails, ships, imports, exports, produces blank certificates of receipt for, manufactures, sells, attempts to sell, advertises for sale, trades, barters, or exchanges for anything of value any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces, or the ribbon, button, or rosette of any such badge, decoration or medal, or any colorable imitation thereof, except when authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.

(b)Fraudulent Representations About Receipt of Military Decorations or Medals.—

Whoever, with intent to obtain money, property, or other tangible benefit, fraudulently holds oneself out to be a recipient of a decoration or medal described in subsection (c)(2) or (d) shall be fined under this title, imprisoned not more than one year, or both.

There is a split of authority on the validity of 18 USC 704(a). The Fourth Circuit held in United States v. Hamilton, 699 F.3d 356 (4th Cir. 2012), that the law was constitutional because there was an implied element of deception included that was not part of the express language of the statute, in some lengthy and tortured analysis (some citations omitted without indication):

Hamilton argues that his convictions for wearing a military uniform without authorization, in violation of 18 U.S.C. § 702 (Section 702), and for wearing military medals without authorization, in violation of 18 U.S.C. § 704(a) (Section 704(a)),[6] violate his First Amendment rights. . . .

     Before we address the level of scrutiny applicable to our analysis of the insignia statutes, we first must consider the range of

conduct covered by the statutes. We undertake this preliminary analysis because " it is impossible to determine whether a statute reaches too far without first knowing what the statute covers."

     Section 702 addresses the unauthorized wearing of military uniforms. This statute provides that " [w]hoever, ... without

authority, wears the uniform or a distinctive part thereof or anything similar to a distinctive part of the uniform of any of the armed forces of the United States" is subject to a monetary fine or to a term of imprisonment not exceeding six months. 18 U.S.C. § 702.

     Section 704(a) addresses the display of military medals, encompassing various forms of conduct including the wearing,

purchasing, solicitation, importation, exportation, sale, trading, or advertising of such military medals. In relevant part, Section 704(a) provides that " [w]hoever knowingly wears ... any decoration or medal authorized by Congress for the armed forces of the United States, or any of the service medals or badges awarded to the members of such forces ... or any colorable imitation thereof, except when authorized under regulations made pursuant to law," is subject to a monetary fine or to a term of imprisonment not exceeding six months.18 U.S.C. § 704(a).

     The government acknowledges that a broad reading of the insignia statutes could " raise serious constitutional concerns,"

because such a reading would prohibit anyone from wearing a military medal who did not validly receive it, or anyone from wearing a military uniform without express authority, under any circumstances. Under that view, for example, it would be unlawful for grandchildren to wear their grandparents' medals during a Veterans Day parade, for persons to wear a military uniform to a Halloween party, or for actors, including children participating in a school play, to wear a military uniform or imitation military medals. See United States v. Perelman, 658 F.3d 1134, 1136-37 (9th Cir.2011) (listing these and other examples of conduct potentially prohibited by a literal interpretation of Section 704(a)), amended and superseded on denial of reh'g, 695 F.3d 866, (9th Cir.2012).

      As a " cardinal principle" of statutory interpretation, we may avoid such serious constitutional concerns if we are able to "

ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Thus, when " an otherwise acceptable construction of a statute would raise serious constitutional problems, [courts] will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress." see also Legend Night Club v. Miller, 637 F.3d 291, 300 (4th Cir.2011) (holding that this Court will not strike down a statute as facially overbroad if the statute's constitutionality may be preserved through a " limiting construction" or " partial invalidation" ).

     We observe that the Ninth Circuit applied such a limiting construction to Section 704(a) in United States v. Perelman, holding

that the statute created a criminal offense prohibiting the unauthorized wearing of military medals only when the wearer " has an intent to deceive." 658 F.3d at 1137-38. In our view, the imposition of a limiting construction requiring an " intent to deceive" is appropriate with respect to both Sections 702 and 704(a).[9] In fact, Section 704(a) already contains certain limitations restricting its application. A violation of that statute occurs only when a person " knowingly wears" a military medal, " or any colorable imitation thereof." Thus, in drafting this statute, Congress manifested its intent that application of the statute be restricted to avoid absurd results. See Perelman, 658 F.3d at 1137 (" By prohibiting the wearing of a colorable imitation and by including a scienter requirement, Congress made clear that deception was its targeted harm." ).

      The application of a limiting construction to the insignia statutes requiring an " intent to deceive" is not " plainly contrary

to the intent of Congress." Indeed, the rejection of such a limiting construction could lead to absurd results, as discussed above and in Perelman. Accordingly, we hold that persons violate the insignia statutes if they wear a military uniform without authorization, or wear military medals or imitations of such medals, respectively, only when they do so with the intent to deceive.

     We turn now to consider the level of scrutiny that should be applied in our determination whether the insignia statutes violate the

First Amendment. Initially, we observe that in its recent decision in United States v. Alvarez, __ U.S. __, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), the Supreme Court considered a First Amendment challenge to 18 U.S.C. § 704(b), which established as a criminal offense any false spoken or written claims concerning the receipt of military decorations or medals. Because Section 704(b) proscribed pure speech, a plurality of the Supreme Court applied " exacting scrutiny" to its consideration of the constitutionality of that statute. [10] Alvarez, 132 S.Ct. at 2548-50 (plurality opinion); id. at 2555-56 (Breyer, J., concurring in judgment) (concluding Section 704(b) violated the First Amendment because the government could achieve its objective in less burdensome ways).

      In contrast to Section 704(b), the insignia statutes do not regulate pure speech but instead proscribe certain forms of expressive

conduct. In framing our analysis, we rely on the Supreme Court's decisions in Johnson and O'Brien, which set forth the level of scrutiny applicable in constitutional challenges to statutes regulating conduct rather than speech.

     In its decision in O'Brien, the Supreme Court explicitly rejected " the view that an apparently limitless variety of conduct

can be labeled ‘ speech’ whenever the person engaging in the conduct intends thereby to express an idea." 391 U.S. at 376, 88 S.Ct. 1673. Further, in Johnson, the Court explained that although expressive conduct often includes both communicative and non-communicative elements, this mode of expression may be regulated by the government with a " freer hand" than the written or spoken word. 491 U.S. at 406, 109 S.Ct. 2533. Thus, as a general principle, expressive conduct is not entitled to the same degree of protection under the First Amendment as is pure speech.

     In O'Brien, the Supreme Court analyzed a defendant's First Amendment challenge to his conviction for burning his selective

service registration certificate (draft card).[11] The defendant testified during his trial that he burned the draft card in a public place to persuade other people to adopt his antiwar beliefs. O'Brien, 391 U.S. at 370, 88 S.Ct. 1673. The Court of Appeals for the First Circuit held that the statute at issue violated the First Amendment, but the Supreme Court reversed and reinstated O'Brien's conviction. Id. at 371-72, 88 S.Ct. 1673.

     In concluding that the statute under which the defendant was convicted was constitutional, the Supreme Court announced that a

government regulation infringing on expressive conduct is permissible: " 1 if it is within the constitutional power of the Government; 2 if it furthers an important or substantial governmental interest; 3 if the governmental interest is unrelated to the suppression of free expression; and 4 if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id. at 377, 88 S.Ct. 1673. The Court later stated that the fourth element of the O'Brien test is not a " least restrictive means" test. Explaining this distinction, the Court stated that " an incidental burden on speech is no greater than is essential, and therefore is permissible under O'Brien, so long as the neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Rumsfeld, 547 U.S. at 67, 126 S.Ct. 1297.

      In Johnson, however, the Supreme Court declined to apply the O'Brien test in considering the constitutionality of a Texas statute

that prohibited the desecration of certain " venerated objects." 491 U.S. at 400, 407-10, 109 S.Ct. 2533. The defendant in Johnson was prosecuted under Texas law for burning a flag, which he did in a public place as a means of political protest. Id. at 399, 109 S.Ct. 2533.

     In assessing the defendant's First Amendment challenge in Johnson, the Court held that the O'Brien standard was inapplicable

because that " relatively lenient standard" applied in cases in which the governmental interest is " unrelated to the suppression of free expression." 491 U.S. at 407, 109 S.Ct. 2533 (citation omitted). The Court further explained that " [i]n order to decide whether O'Brien 's test applies here, therefore, we must decide whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression." Id.

     The Court held that Texas' only proffered interest implicated by the facts of the case was its interest in preserving the flag as a

symbol of national unity, an interest that the Court determined was related to the suppression of free expression. Id. at 407-10, 109 S.Ct. 2533. Concluding that " [w]e are thus outside of O'Brien 's test altogether," the Court held that the Texas statute was subject to " the most exacting scrutiny." [12] Id. at 410, 412, 109 S.Ct. 2533.

     As the Supreme Court's decisions in O'Brien and Johnson illustrate, the key factor that determines whether we apply the "

relatively lenient" test employed in O'Brien, or the " most exacting scrutiny" standard set forth in Johnson, is whether the statute being reviewed is related to the suppression of free expression. This issue presents a close question, at least with respect to the " wearing" component of the insignia statutes under which Hamilton was convicted. On their face, the insignia statutes are not related to the suppression of free expression. Neither of these statutes " prevent[s] the expression of any particular message or viewpoint." See Perelman, 658 F.3d at 1140 (applying O'Brien test in affirming defendant's conviction under Section 704(a)). The insignia statutes do not restrict expression or debate concerning military policy, the meaning of military uniforms or military medals, the values that they represent, or any other topics of public concern relating to the military.[13]

      Our application of the " intent to deceive" limiting construction, however, complicates the matter. For instance, a

defendant charged with violating the insignia statutes may have " intended to deceive" by communicating the false message that he actually earned the adorned uniform or military medals. [14] The insignia statutes' prohibition of this conduct arguably falls within the realm of the Johnson " most exacting scrutiny" test because the prosecution of that defendant would necessarily be related to the suppression of free expression. Thus, in applying the insignia statutes only to intentionally deceptive conduct based on the limiting construction discussed in this opinion, these statutes could reach conduct that solely involves free expression, within the holding of Johnson.

     In the present case, however, we need not resolve the issue whether the more lenient O'Brien standard or the more demanding

Johnson standard applies in evaluating Hamilton's constitutional challenge because we conclude that the insignia statutes withstand a facial challenge under even " the most exacting scrutiny." Accordingly, we will assume, without deciding, that the more demanding standard discussed in Johnson applies in this case.[15]

     The " most exacting scrutiny" standard 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." Boos v. Barry, 485 U.S. 312, 321-22, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (cited in Johnson, 491 U.S. at 412, 109 S.Ct. 2533).[16]

     The first prong of this analysis requires us to determine whether the government's interests underlying the insignia statutes

are " compelling." The statutes, as construed in conformance with the limiting construction requiring an intent to deceive, prevent the intentionally deceptive wearing of military uniforms and military medals. Military uniforms are a recognized symbol of our armed forces, and the uniforms themselves convey information about the rank and accomplishments of the wearer, as well as about the particular branch of the armed forces being represented. Military medals are institutional symbols of honor and prestige, which enhance military morale and recognize the accomplishment of difficult missions by members of the armed services. Additionally, military uniforms and military medals publicly promote the integrity of the military system by honoring members of our military for their service and their sacrifices.

      The intentionally deceptive wearing of military uniforms and military medals threatens to weaken this tradition because such

deceptive practices, if left unchecked, could diminish the symbolic value of these items. Deceptive actions of this nature also frustrate the government's efforts to ensure that members of the military and the general public perceive military honors as being awarded only to a limited number of deserving recipients. Accordingly, we hold that the government's interest in preserving the integrity of the system honoring military members for their achievements and sacrifices is compelling. See United States v. Alvarez, 617 F.3d 1198, 1216 (9th Cir.2010), aff'd, 132 S.Ct. 2537; Perelman, 658 F.3d at 1140; id., 695 F.3d at 872-73; see also Alvarez, 132 S.Ct. at 2549 (plurality opinion) (observing that the government's interest in " protecting the integrity of the Medal of Honor is beyond question" and characterizing that interest as " compelling" ); id. at 2555 (Breyer, J., concurring in judgment) (characterizing the government's interest in preserving the integrity of the military honors system as " substantial" ).

     We also note that the importance of the uniform, which conveys a particular military rank, is not limited to the general

public's perception of that rank. Rather, military uniforms are directly and inextricably linked to the effective operation of the military chain of command, because the unauthorized wearing of military uniforms may convey misleading information to other members of the military about the rank, if any, of the wearer. Thus, because the display of a military rank could have actual consequences, particularly when a uniform is worn on or near a military base,[17] we conclude that the government's interest in maintaining the orderly administration of the chain of military command is compelling.

     Having concluded that the government's interests underlying the insignia statutes are " compelling," we must examine whether the

statutes are " narrowly drawn to achieve" those interests. Boos, 485 U.S. at 321-22, 108 S.Ct. 1157. In analyzing the " fit" between the insignia statutes' prohibitions and the governmental interests involved, we observe that the primary concerns targeted by the insignia statutes include: 1) the potential debasement of military awards and uniforms; 2) the avoidance of an implication that military honors are awarded on a frequent and routine basis; and 3) avoiding obstructions to the orderly administration of the chain of military command.

     We conclude that the insignia statutes are drawn sufficiently narrowly to satisfy the " most exacting scrutiny" standard. By

preventing the unauthorized wearing of military uniforms and honors, the insignia statutes seek to ensure that the individuals displaying these honors to the general public are those who actually have received such honors. Moreover, we observe that the insignia statutes, which address the wearing of military uniforms and medals, unquestionably further the government's interest in preventing the appearance that military honors are given more often than actually is true, as well as furthering the government's interest in maintaining the orderly administration of military command.

      Additionally, by preventing those who have not earned such honors from displaying them, the " unauthorized wearing" component of

the insignia statutes helps limit the demand in a " secondary market" for these symbols of high military achievement, providing additional support to the other prohibitions contained in Section 704(a). See 18 U.S.C. § 704(a) (also prohibiting, among other forms of conduct, the purchase, sale, or manufacturing of military honors). Because the insignia statutes prohibit the wearing of symbols of military honor that have not been earned, individuals will be less likely to purchase such items to wear. Thus, absent the protections afforded by the insignia statutes, the number of individuals wearing military medals and uniforms without authorization,

and their ability to purchase those symbols of honor, likely would pose a greater problem.

     Hamilton argues, nevertheless, that Congress could have furthered its interests by less restrictive means, such as by

publicizing the names of the legitimate recipients of military honors or the names of those who have falsely claimed to receive such honors. These alternatives were identified by the Supreme Court and the Ninth Circuit in their respective decisions in Alvarez . 132 S.Ct. at 2551 (plurality opinion); id. at 2556 (Breyer, J., concurring in judgment); 617 F.3d at 1210. In our view, these alternatives are less applicable to the interests underlying the conduct-based prohibitions of the insignia statutes than the speech-based prohibition of 18 U.S.C. § 704(b).

     As an initial matter, the actual appearance of the military uniform and military medals more strongly conveys the impression that

the wearer has earned the honors displayed than when a person merely states that he has earned such honors. In our view, the wearing of an unearned medal or uniform of an unearned rank is more convincing evidence of such actual attainment than words alone, by constituting ostensible, visual " confirmation" that the wearer earned such honors. As expressed by a familiar adage, " seeing is believing." Thus, we agree with the Ninth Circuit's statement in its amended opinion in Perelman that " [t]he use of a physical object goes beyond mere speech and suggests that the wearer has proof of the lie, or government endorsement of it." 695 F.3d at 871 (explaining why Supreme Court's decision in Alvarez does not require conclusion that 18 U.S.C. § 704(a) is unconstitutional). Accordingly, we conclude that the government's interests are more greatly affected in this case than in the statute at issue in Alvarez .

     The plurality in Alvarez concluded that 18 U.S.C. § 704(b) was not sufficiently tailored to the government's interests because "

[t]he Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest.... [T]he dynamics of free speech, of counterspeech, of refutation, can overcome the lie.... The remedy for speech that is false is speech that is true." 132 S.Ct. at 2549-50.

     Notably, however, the remedy of " counterspeech" discussed in Alvarez would be much less effective in the present context, which

involves the false display of military honors, rather than false words concerning military honors. Although speech may effectively counter other matters that a person hears, speech may not effectively counter that which a person sees.

     We also observe that the plurality and concurrence in Alvarez concluded that the government in that case could have achieved its

interests underlying 18 U.S.C. § 704(b) in a less restrictive way, by creating and maintaining a database listing all individuals who have been awarded the Congressional Medal of Honor. However, Hamilton does not suggest, nor do we have reason to conclude, that the government could create and maintain such a database for all honors ever awarded to military personnel,[18] much less one listing the rank of every individual who has served in our armed forces.

      Even if such a database were technically feasible, concerns 

about privacy and identity fraud could render such a database unwise.[19] Additionally, we observe that the other government interests underlying the insignia statutes discussed in this opinion, namely, the effective operation of the military chain of command and the diminution of a " secondary market" for military honors, would not be protected by the less-restrictive alternative suggested by Hamilton and discussed by the Supreme Court in Alvarez . Thus, such an alternative would be a less workable and less effective protection for the interests underlying the conduct at issue in this case.

     Accordingly, we conclude that the insignia statutes promote the government's " compelling" interests in a manner that is "

narrowly drawn" to achieving those interests. See Boos, 485 U.S. at 321-22, 108 S.Ct. 1157. Therefore, even under " the most exacting scrutiny" standard discussed in Johnson that we consider here, we hold that the insignia statutes on their face, as construed in accordance with an " intent to deceive" limiting construction, do not violate the First Amendment.[20]

The 9th Circuit reached the opposite conclusion in United States v. Swisher, 811 F.3d 299 (9th Cir. 2016)(Reversing the denial of a motion under 28 U.S.C. § 2255, the en banc court held that the reasoning in United States v. Alvarez, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012), invalidating on First Amendment grounds a statute prohibiting lying about being awarded military medals, also applied to 18 U.S.C. § 704(a) (2002 ed.), a provision of the Stolen Valor Act that previously criminalized the unauthorized wearing of such medals.)

People often ignore laws that remain on the books but that are likely to be unconstitutional, and as U.S. v. Hamilton illustrates, an implied element of deception, which would legalize TV and movie use, would have been in place even if it was constitutional.

But, 18 USC 704(b), as amended, is constitutional and enforceable.

The invalidity of 18 USC 704(a) if read literally, was clear at least as early as 1989, when flag burning laws were ruled unconstitutional.

As noted here:

Criminal penalties for certain acts of desecration to the flag were contained in Title 18 of the United States Code prior to 1989. The Supreme Court decision in Texas v. Johnson; June 21, 1989, held the statute unconstitutional. This statute was amended when the Flag Protection Act of 1989 (Oct. 28, 1989) imposed a fine and/or up to I year in prison for knowingly mutilating, defacing, physically defiling, maintaining on the floor or trampling upon any flag of the United States. The Flag Protection Act of 1989 was struck down by the Supreme Court decision, United States vs. Eichman, decided on June 11, 1990.

The outcome in these cases was predictable under U.S. free speech jurisprudence, which was pointing in that direction pretty clearly since at least the 1970s.

Also, I suspect that uses in movies and television constitute uses "when authorized under regulations made pursuant to law" long before that in any case. Even if those regulations did not authorize that use, I suspect that a court asked to enforce the law would have interpreted it to include an implied scienter requirement which would have required showing an intent to defraud even though that is not expressly stated in the state.

It is entirely possible that there were some prosecutions under the law, although even in the period from 1948 to 1989 when it wasn't clear from the case law that this law was unconstitutional as read literally, but, I don't suspect that it was ever an enforcement priority.

  • This does not cover the period between enactment and abolishment of the Act. – user13023 Aug 5 '17 at 0:34
  • A further reading of your response shows that this does not actually answer my question. My question pertains to 1) the production/manufacture of replicas of Medals of Honor and other military medals and decorations, and 2) the ownership of such replicas. My question does not pertain to the display, wearing, or the intent of any such activities. – user13023 Aug 5 '17 at 0:44
  • I've amended my answer to address that a bit more. – ohwilleke Aug 5 '17 at 0:45
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Check out 10 USC §772(f), regarding wearing military uniforms while acting in theater or motion pictures.

While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical or motion-picture production may wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.

  • 10 U.S. Code § 772 does not seem to mention medals or decorations. EDIT: Or does the term "uniform" include accoutrements such as medals and decorations? – user13023 Aug 4 '17 at 19:19
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    Surely the condition imposed by the last clause is a constitutionally impermissible restriction on the freedom of speech. – phoog Aug 5 '17 at 1:09
  • Federal laws are presumed to be Constitutional until proven otherwise. – Upnorth Aug 6 '17 at 16:16

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