On 11 January 2016, the 9th U.S. Circuit Court of Appeals overturned a case against Elven Joe Swisher, who in 2007 was convicted under the Stolen Valor Act of wearing military decorations he had not been awarded. According to reports, “during a 2007 trial for violating the Stolen Valor Act, prosecutors showed the jury a photo of Mr. Swisher wearing several medals and awards, including the Silver Star, Navy and Marine Corps Ribbon, Purple Heart, and the Navy and Marine Corps Commendation Medal with a Bronze “V””1. I don’t know why Mr. Swisher misrepresented his military service, but given the incident arose while he was testifying in court would lead me to think that he was intending to enhance his credibility in front of the judge and others present in the courtroom.

The problem I have with treating Stolen Valor as protected speech is that those who misrepresent their military service for gain, whether it is in esteem of their peers or financial gain, are being dishonest, if not being outright liars. To say that this is protected speech devalues not only the Constitution, but the honor of those who have died defending it. It says we are a nation of liars, and the Government condones it.

I’d also like to point out a hypocrisy in the legal caste in the United States over a “title” that they have appropriated for themselves, with possible penalties for anyone using it outside the context of the legal profession. The word is “Esquire”, which in the UK, where the US use of the term originated, retains a more general meaning than allowed over here. According to Titles and Forms of Address:

The use of this title for every man who cannot claim a higher one persists, far more widely than used to be the case, when social usage is limited to its application to those considered to merit it through social standing, membership of one of the professions, possession of a degree from Oxford or Cambridge University, and so on. It is felt to be courteous in general to use it in all correspondence, although a reaction influenced by usage in the United States and some other English-speaking countries now leads many writers, especially in business, to prefer the use of Mr.

Whichever style is preferred, it should clearly be used consistently, since the difficulty in ascertaining which of one’s correspondents is entitled to the appellation Esquire must rule out any thought of using it only where it was, in the past, conferred by social position or other qualification.2

It’s worth noting the origin of Esquire. In the feudal system of nobility, a Squire was one step below a Knight and one step up from a Gentleman. A Gentleman was above a common man, who as not considered noble or of gentle birth, though there was opportunity to improve one’s lot to become a Gentleman. In the modern sense, every many is considered a Gentleman, and entitled to use “Mr.”. It is quite apparent in practice, however, that few men today truly are Gentlemen.

In the US, we find:

Often it is suggested that certain United States jurisdictions explicitly indicate that the esquire suffix should only be used for lawyers. However, these jurisdictions actually do this in order to suggest that the term may be sometimes used by an individual who is falsely or wrongly claiming to be a licensed member of the state bar. It sometimes may be used in conjunction with the claim of being associated to the bar. The suffix alone is not enough to be considered evidence of misrepresentation.
All previous court cases in the United States that questioned the use of the suffix esquire always involved an individual who was practicing law without the proper authorization. None of these cases prosecuted an individual for the term when it was used only in a legitimate law practice.3

Even the authoritative Emily Post Institute gets it wrong:

“Esquire” is a professional designation in the legal arena—not a social designation.4

We need to address the hubris of some in the legal profession as to hijacking the title. In a group on the American Bar Association website, this comment was posted to a question on the use of Esquire by non-lawyers:

The appellation of it to your own signature or signature block is a conceit that has developed in the US only, and *very* recently (since, prior to about 1965, no young gentleman who was likely to become an attorney was ignorant enough of proper etiquette to do so). Prior to the death of good manners, circa 1964 in the US, one never applied the word “esquire” to oneself — to be so bold as to suggest that you were good enough for the courtesy was considered the height of chutzpah.

Sometime in the last 15 years or so, as the knowledge concerning proper usage has died out in the US, some attorneys (in the US only) have started referring to themselves as “esq” in correspondence–in fact, in the US, this is the only place I have seen this used at all since I was a little girl (when people still wrote letters and invitations by hand, and would, on occasion, address a little boy — in the address only–as “esq” or much less commonly, “esquire”).

Now, as I noted in another thread just yesterday, new uses for archaic words is not a bad thing, it’s a good thing. However, unfortunately, the more correct usage of the word, as a courtesy offer of respect, is still in use in the entire rest of the English speaking world. The problem is, the use of “esquire” is NOT archaic, it is still in general usage in many countries (and particularly Britain). Here in the US, a practice contrary to the rest of the world is developing which makes us appear ignorant.5

Also in that same thread was this:

In Arizona it can be an unauthorized practice of law :
Arizona Supreme Court Rule 31(a)2B states:
Unauthorized practice of law includes but is not limited to:

  • Engaging in the practice of law by persons or entities not authorized to practice pursuant to to paragraphs (b) or (c) or specifically admitted to practice pursuant to Rule 33(d); or
  • Using the designations “lawyer,” “attorney at law,” counselor at law,” “law,” “law office,” “J.D.,” “Esq.,” or other equivalent words by any person or entity not authorized to practice pursuant to to paragraphs (b) or (c) or specifically admitted to practice pursuant to Rule 33(d), the use of which is reasonably likely to induce others to believe that the person or entity is authorized to engage in the practice of law in this state.5

Further down in the thread is what I believe to be the salient point:

I find it offensive that some state bars would dare determine on their own that the term Esquire should be exclusively used by attorneys. Who made them lexicographers?

One of the things I have found less than noble about my profession is that lawyers tend to be a narcissist lot, with a definite inferiority complex in regard to the medical profession. The fact that attorneys would so obsessed with their own importance that they would try to monopolize the honorific “Esquire” is still another indication that members of our profession need to get a life.5

So we have a conundrum. Using Esquire in the US is not protected speech, even though there is precedent that educated, well respected individuals are entitled to it by ancient custom. The legal profession claims a monopoly on the title. Individuals using it might be prosecuted as practicing law “without proper authorization”, yet an individual wearing unearned military decorations is free to debase the military profession. If those in the legal profession are so defensive of a term they usurped, why can’t they understand the offense those of us who have served this Country take in instances of Stolen Valor?

References:

  1. Howell, K. (13 January 2016). “Court overturns ‘stolen valor’ conviction, says wearing unearned medals is protected speech”. The Washington Times. Retrieved from http://www.washingtontimes.com/news/2016/jan/13/stolen-valor-case-overturned-by-federal-appeals-co/?utm_source=RSS_Feed&utm_medium=RSS.
  2. No Author Found. (2007). “Titles and forms of address : a guide to correct use”. London: A. & C. Black.
  3. No Author Found. (n.d.). “The Use of the Title Esquire in the United States”. Retrieved from http://court.laws.com/esquire.
  4. Emily Post Institute. (n.d.). “Advice: the Correct Use of Esquire”. Retrieved from http://emilypost.com/advice/the-correct-use-of-esquire/
  5. Multiple Authors. (n.d.). “Use of Esq. by Non-Lawyers”. Retrieved from http://www.americanbar.org/groups/gpsolo/resources/solosez/popular_threads_2007/esqfornonlawyers.html
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