USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
11889
(1970), or “lusty and imaginative expression,” Nat’l Ass’n of
Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 286
(1974), such as satire or fiction. In Hustler, the Supreme
Court held that the First Amendment protects defamatory
statements about a public figure “that could not reasonably
have been interpreted as stating actual facts about the public
figure involved.” 485 U.S. at 50. And in Milkovich v. Lorain
Journal Co., 497 U.S. 1 (1990), the Court clarified that such
protection “provides assurance that public debate will not suffer
for lack of imaginative expression or the rhetorical hyperbole
which has traditionally added much to the discourse of
our Nation.” Id. at 20 (quotation marks omitted)); see also
Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005) (stating
that “[t]he First Amendment protects statements that cannot
reasonably [be] interpreted as stating actual facts about an
individual” because of “the reality that exaggeration and nonliteral
commentary have become an integral part of social discourse”
(quotation marks omitted) (second alteration in original)).
In a sense, the Court has established that “lies” made in
the context of satire and imaginative expression are not really
lies at all and perhaps not really even statements of “fact,”
because no reasonable listener could actually believe them to
be stating actual facts.
In sum, the Supreme Court’s jurisprudence on false statements
of fact involves a general rule with certain exceptions
and exceptions-to-exceptions. In general, “there is no constitutional
value in false statements of fact,” and so “the erroneous
statement of fact is not worthy of constitutional
protection.” Gertz, 418 U.S. at 340. However, this general
principle is subject to certain limited exceptions where First
Amendment protection is necessary “to protect speech that
matters,” id. at 341, and to ensure that the “freedoms of
expression . . . have the ‘breathing space’ that they ‘need to
survive,’ ” New York Times, 376 U.S. at 271-72 (alteration
omitted). Accordingly, a defamatory false statement of fact
made about a public figure is constitutionally protected if it is
made without “knowledge that it was false or with reckless