USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
II
11857
We begin by noting our rejection of the government’s suggestion
that because “[f]alse statements of fact are particularly
valueless,” Hustler Magazine v. Falwell, 485 U.S. 46, 52
(1988), “Congress may prohibit false statements of fact unless
immunity has been carved out or should be carved out
because the First Amendment requires protection of some
falsehood in order to protect speech that matters.” In other
words, the government contends that there is no protection for
false statements of fact unless it can be shown, in a particular
case, that there should be.
Contrary to the dissent’s view, we cannot adopt the government’s
approach as the general rule for false factual speech
without turning customary First Amendment analysis on its
head.
First, under the government’s proposed approach, it would
effectively become the speaker’s burden to prove that his
false statement should be protected from criminal prosecution.
That approach runs contrary to Supreme Court precedent. See
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767,
776-77 (1986) (“In the context of governmental restriction of
speech, it has long been established that the government cannot
limit speech protected by the First Amendment without
bearing the burden of showing that its restriction is justified.”);
see also Sullivan, 376 U.S. at 271 (“Authoritative
interpretations of the First Amendment guarantees have consistently
refused to recognize an exception for any test of truth
. . . especially one that puts the burden of proving truth on the
speaker.”).
Second, the government’s approach would give it license to
interfere significantly with our private and public conversations.
Placing the presumption in favor of regulation, as the
government and dissent’s proposed rule does, would steadily
undermine the foundations of the First Amendment. In Cohen