USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
11863
ified “the knowingly false statement . . . do[es] not enjoy constitutional
protection.” 379 U.S. 64, 75 (1964) (emphasis
added); see also Sullivan, 376 U.S. at 283.
[6] Moreover, Garrison’s clarification is not the only relevant
refinement. In defamation jurisprudence, the question
has never been simply whether the speech “forfeits [First
Amendment] protection by the falsity of some of its factual
statements.” Sullivan, 376 U.S. at 271. The question is always
whether the speech forfeits its First Amendment protection as
a result of its falsity “and by its alleged defamation of [the
plaintiff].” Id. (emphasis added). In other words, in a defamation
case, a threshold question is whether the false speech at
issue is defamatory, meaning that the defamer’s false statement
is the proximate cause of an irreparable 8 harm to another’s
reputation. See Gertz, 418 U.S. at 347 (holding that “so
long as they do not impose liability without fault, the States
may . . . [impose] liability for a publisher or broadcaster of
defamatory falsehood injurious to a private individual”).
8 On the importance of irreparability, see infra pp. 11869, 11879-80. The
dissent argues at length that we have conjured up this harm element out
of whole cloth, see Dissent at p. 11910, but it comes directly from several
of the cases about “unprotected” speech. See, e.g., Chaplinsky, 315 U.S.
at 572 (identifying fighting words as “those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace”) (emphasis
added); Gertz, 418 U.S. at 347 (describing defamation as “injurious”).
We do not mean to suggest, however, that harm is necessarily a required
element for all unprotected speech regulations (although we find it interesting
that it is present in many of them); rather, we note here only that
it is a required element of defamation. Defamation, like every “unprotected”
category, involves thoughtful and unique definitional analysis, see
infra n.9. Even obscenity doctrine, which the dissent argues includes no
harm element, still requires the statute to define “obscenity” in conformity
with the constitutional rule. See, e.g., Paris Adult Theater I v. Slaton, 413
U.S. 49 (1973) (reaffirming that obscenity is unprotected, but holding the
an anti-obscenity statute must be carefully drafted or construed to meet
First Amendment standards). Thus, if defamation law supplies the rule to
be applied in this case, we cannot ignore that the definition of defamation
includes injury to reputation. See, e.g., Gertz, 418 U.S. at 347; Sullivan,
376 U.S. at 271; Dun & Bradstreet, 472 U.S. at 762.