USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
fraud, and that outside these contexts they are fully protected.
See id. at 11873 (“[T]he historical and traditional categories
of unprotected false factual speech have thus far included
only certain subsets of false factual statements . . . .”); id. at
11875 (finding that only “certain subsets of false factual
speech have been declared unprotected,” and that “[t]he Act
does not fit neatly into any of those . . . classes”). In other
words, the majority limits the general rule to its exceptions.
In my view, the majority is wrong for a number of reasons.
1
11891
As a general matter, the majority’s principle rests on a line
of reasoning that I cannot endorse: that our jurisprudence
should rest on what we think the Supreme Court “means”
rather than what it actually says, and thus, because the
Supreme Court means “defamation” when it says “false statements
of fact,” only the former represents an unprotected category
of speech. The majority even considers it “erroneous[ ]”
for me to “rel[y] on Gertz for its statement that false factual
speech is valueless and unprotected.” Id. at 11864.
With all due respect, I believe that reliance on Gertz’s
statement (and the Court’s numerous other statements to the
same effect) is not only far from “erroneous[ ]” but obligatory.
We do not have the authority as a lower court to limit
the Court’s statements to what we believe they mean rather
than what they actually say. Gertz could have used the terms
“defamation” or “libel” rather than “false statements of fact”
to describe the unprotected category of speech—it presumably
knew what these terms mean—but it did not. Because the
Court has told us unambiguously that “false statements of
fact” are generally unprotected by the First Amendment, this
principle should be the starting point for our analysis, not the
point for the majority’s departure from the principle. 3
3 The majority’s reliance on Justice Stevens’s opinion in Nike, Inc. v.
Kasky, 539 U.S. 654 (2003), see Maj. Op. at 11855, gives away its true