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):
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)), 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. §
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). 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.  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
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). 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
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."  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
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.  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.
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.
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
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, 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
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. §
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
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, 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. 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
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.
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.