USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
315 U.S. at 573 (“It is a statute narrowly drawn and limited
to define and punish specific conduct lying within the domain
of state power, the use in a public place of words likely to
cause a breach of the peace.” (emphasis added)).
Following Schenck, then, we might articulate the class of
false factual speech unprotected by the First Amendment to
be that false factual speech which creates a clear and present
danger of a harm Congress has a right to prevent. Assuming
that the “clear and present danger” test is the more appropriate
rule, as Alvarez urges us to do, we agree with him that the Act
fails the test for the same reasons the Act is not analogous to
anti-defamation laws.
As explained in Schenck, the power of the government to
punish such speech involves careful consideration of “proximity
and degree” of the harm. For the reasons already substantially
described supra in Part III.A, the speech targeted by
the Act does not pose any immediate and irreparable harm;
any harm it does cause can be remedied by more speech. Further,
the harm the Act identifies—damage to the reputation
and meaning of military honors—is not the sort of harm we
are convinced Congress has a legitimate right to prevent by
means of restricting speech.
V
Having concluded that the Act does not fit within the traditional
categories of speech excluded from First Amendment
protection, we must subject it to strict scrutiny review. Indeed,
[e]ven as to [the narrowly limited classes of speech
noted in Chaplinsky] . . . because the line between
speech unconditionally guaranteed and speech which
may legitimately be regulated, suppressed, or punished
is finely drawn . . . the power to regulate must
be so exercised as not, in attaining a permissible end,
unduly to infringe the protected freedom[.] In other
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