USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
11867
require a knowing violation. Indeed, the government charged
Alvarez with knowingly making the false statement.
But that is not enough. The Court has never held that a person
can be liable for defamation merely for spreading knowingly
false statements. The speech must also be “injurious to
a private individual.” Gertz, 418 U.S. at 347.
Of course, if we look beyond the text of the Act, there is
a presumptive harm identified by Congress that might be
analogized to the presumption of reputational harm made in
defamation cases. Specifically, Congress made “Findings”
that “fraudulent claims” about receipt of military honors
“damage the reputation and meaning of such decorations and
medals.” Stolen Valor Act of 2005, Pub. L. No. 109-437,
§ 2(1), 120 Stat. at 3266; see also 151 Cong. Rec. S12684-01,
S12688-99 (2005) (statement of Sen. Conrad). We do not
believe the “Findings” make this a defamation statute.
First, while the “Findings” identify the injury the Act targets,
they do not actually limit the application of the Act.
There is no requirement in the Act that the government bear
the burden to prove that the defendant’s speech or writing
proximately caused damage to the reputation and meaning of
military decorations and medals. Although common law traditions
suggest that we can sometimes presume damage in defamation
cases, see Gertz, 418 U.S. at 349-50, there is no
readily apparent reason for assuming, without specific proof,
that the reputation and meaning of military decorations is
harmed every time someone lies about having received one.
To the contrary, the most obvious reason people lie about
receiving military honors is because they believe that their
being perceived as recipients of such honors brings them
acclaim, suggesting that generally the integrity and reputation
of such honors remain unimpaired. And notably, even in defamation
cases, a “publication” is required, ensuring that liability
attaches only to those falsehoods spoken under
circumstances in which the harm could result. In this case,