USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
whole, do not have serious literary, artistic, political, or scientific
value”).
[15] Thus, false factual speech as a general category is not,
and cannot be, proscribed under threat of criminal prosecution.
Although certain subsets of false factual speech have
been declared unprotected, such classes of speech were developed
as the result of thoughtful constitutional analysis of what
other characteristics the speech must have before it can be
proscribed without clashing with First Amendment protections.
The Act does not fit neatly into any of those “welldefined”
and “narrowly limited” classes of speech previously
considered unprotected, and we thus are required to apply the
highest level of scrutiny in our analysis.
IV
11875
Before performing the customary First Amendment analysis,
however, we consider alternatively what may perhaps be
better authority for the view that the maliciously stated false
factual speech is historically unprotected— not Gertz and the
unique universe of defamation jurisprudence, or the law of
fraud, but Schenck v. United States, as suggested by Alvarez
in his appeal. There, Justice Holmes famously noted that
“[t]he most stringent protection of free speech would not protect
a man in falsely shouting fire in a theater and causing a
panic.” 249 U.S. 47, 52 (1919). Although Schenck was concerned
with seditious speech, it is particularly instructive here,
given that the “clear and present danger” test emerged from
the “fire in a theater” hypothetical, which is quintessentially
about a false statement of fact.
Generalizing from the “fire in a theater” hypothetical, Justice
Holmes went on to hold that “[t]he question in every case
is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger
that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and