USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

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COUNSEL Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. Craig H. Missakian, Assistant U.S. Attorney, Cyber and Intellectual Property Section, Los Angeles, California, for the plaintiff-appellee. M. SMITH, Circuit Judge: UNITED STATES v. ALVAREZ OPINION 11849 Defendant-Appellant Xavier Alvarez conditionally pleaded guilty to one count of falsely verbally claiming to have received the Congressional Medal of Honor, in violation of the Stolen Valor Act (the Act), 18 U.S.C. § 704(b), (c), 1 reserving his right to appeal the Act’s constitutionality. 1 Although predecessor versions have existed since 1948, the current form of the Act was passed in 2006. In that year, Congress found that “[f]raudulent claims surrounding the receipt of the Medal of Honor [and other Congressionally authorized military medals, decorations, and awards] damage the reputation and meaning of such decorations and medals,” and that “[l]egislative action is necessary to permit law enforcement officers to protect the reputation and meaning of military decorations and medals.” Stolen Valor Act of 2005, Pub. L. No. 109-437, § 2(1), (3), 120 Stat. 3266, 3266 (2006).
11850 UNITED STATES v. ALVAREZ The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more. The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech. See Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L. Rev. 1107, 1109 (2006) (“[A]ccepting unlimited government power to prohibit all deception in all circumstances would invade our rights of free expression and belief to an intolerable degree, including most notably—and however counterintuitively—our rights to personal and political self rule.”). Rather we hold that regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment. The rule the government and dissent urge us to apply in order to uphold the Act would, if adopted, significantly enlarge the scope of existing categorical exceptions to First Amendment protection. All previous circumstances in which lies have been found proscribable involve not just knowing falsity, but additional elements that serve to narrow what speech may be punished. Indeed, if the Act is constitutional under the analysis proffered by Judge Bybee, then there would be no constitutional bar to criminalizing lying about
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USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

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