USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
11865
not eager to extend a statement (often quoted, but often qualified)
made in the complicated area of defamation jurisprudence
into a new context in order to justify an unprecedented
and vast exception to First Amendment guarantees. 10 Indeed,
ment analysis to determine test for true threat regulations); Va. State Bd.
of Pharmacy, 425 U.S. 748 (applying intermediate scrutiny to commercial
speech). That is also why restrictions on “unprotected” speech are at times
invalidated. See, e.g., Cohen, 403 U.S. 15 (rejecting, on First Amendment
grounds, restrictions of profanity); Gooding, 405 U.S. 518 (striking down
fighting words statute); Hustler, 485 U.S. 46 (prohibiting recovery for
emotional distress in libel action); Reno v. Am. Civil Liberties Union, 521
U.S. 844 (1997) (finding portions of Communications Decency Act
invalid under the First Amendment). Thus, even if one agrees with the dissent
that Gertz and its progeny requires the historical category of unprotected
speech at issue here be defined as knowingly false factual speech
per se, that is simply not enough to make the Act immune from First
Amendment analysis. Judge Bybee’s approach excepting “some falsehood”
when it is necessary to protecting speech that matters reintroduces
some First Amendment scrutiny into it, but we believe that approach is not
sufficiently speech-protective for the reasons explained supra pp.
11859-60. If Judge Bybee is correct, then, we will need an entirely new
constitutional rule for false speech regulations. Rather than guess what
rule the Court would adopt for this newly-broadened category of unprotected
speech, we confine our review to previously defined unprotected
categories.
10 We are not persuaded that Hoffman v. Capital Cities/ABC, Inc., 255
F.3d 1180 (9th Cir. 2001), is anything more than a variation on defamation
jurisprudence. Hoffman applied the actual malice standard from Gertz-
Garrison-Sullivan in a case involving a magazine’s alleged creation of a
false impression that a famous actor posed for a photograph. Id. at 1187;
cf. also Time, Inc. v. Hill, 385 U.S. 374 (1967) (holding constitutional a
state law imposing civil liability for malicious false statements that invade
a private individual’s right of privacy). Although the asserted injury in
Hoffman is not to reputation, but instead to a form of publicity rights, the
interests at stake are sufficiently similar to defamation that the Gertz-
Garrison-Sullivan framework can conceptually apply without a significant
extension of the doctrine. When the only asserted injury is to the reputation
of a government institution, the historical basis for finding that the
“social interest in order and morality” outweighs the value of precluding
government interference with speech is absent. Chaplinsky, 315 U.S. at
571-72; see Gertz, 418 U.S. at 341 (“The need to avoid self-censorship by