USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
clusions are more likely to be gathered out of a multitude of
tongues, than through any kind of authoritative selection. To
many this is, and always will be, folly; but we have staked
upon it our all.’ ” Sullivan, 376 U.S. at 270 (quoting United
States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y.
1943)). “The First Amendment itself reflects a judgment by
the American people that the benefits of its restrictions on the
Government outweigh the costs. Our Constitution forecloses
any attempt to revise that judgment simply on the basis that
some speech is not worth it.” Stevens, 130 S. Ct. at 1585.
III
[4] If the speech targeted by the Act is to be declared
among those classes of speech which can be prohibited without
any constitutional problem (the exceptions to the First
Amendment), the speech must fit within those “historical and
traditional categories long familiar to the bar.” Id. at 1584
(internal quotation marks omitted). We find no authority holding
that false factual speech, as a general category unto itself,
is among them. 6
A
11861
[5] Gertz involved a libel action by a private citizen
against a newspaper for the newspaper’s reckless printing of
6 Of course, in the area of commercial speech, the analysis that follows
might be very different. Here, there is no suggestion that the Act targets
commercial speech, and therefore we do not address commercial speech
given the unique way in which it is treated under the First Amendment.
However, we are additionally persuaded that upholding the Act would
require a novel extension of Gertz by the fact that, even in the context of
commercial speech, knowingly false factual speech about a matter of public
concern is potentially entitled to heightened First Amendment scrutiny.
See Nike, 539 U.S. 654 (dismissing—with a highly fractured Court—
certiorari as improvidently granted in a case involving the question of
whether false speech with both commercial and public interest aspects is
entitled to a degree of First Amendment protection).