USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

More documents

Recommendations

Info

UNITED STATES v. ALVAREZ 11895 stands for the proposition that only defamatory statements— and not false statements of fact generally—constitute the unprotected category, then Stevens overruled sub silentio every Supreme Court case using the general term “false statements of fact” and every case applying the New York Times- Gertz-Garrison framework outside of the defamation context. I find this hard to believe. Similar considerations demonstrate why the majority is misguided in relying upon Stevens’s statement that “ ‘[o]ur decisions [following Chaplinsky] cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.’ ” Maj. Op. at 11866 (second alteration in original) (quoting Stevens, 130 S. Ct. at 1586); see also id. at 11864-65 (“Unlike our dissenting colleague, we are not eager to extend a statement (often quoted, but often qualified) made in the complicated area of defamation jurisprudence into a new context . . . .”). Stevens involved the potential creation of a truly “new” category of unprotected speech: “depictions of animal cruelty.” 130 S. Ct. at 1584. This case, in contrast, involves a preexisting category of unprotected speech: false statements of fact. Thus, no “expansion” of First Amendment jurisprudence is necessary to hold that Alvarez’s false statements are not protected. Our own cases are in accord with the principle that false statements of fact (not just defamatory or fraudulent false statements) are generally unprotected by the First Amendment, although we have recognized that “constitutional protection is afforded some false statements.” Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995) (emphasis added). We have often applied the New York Times-Garrison- Gertz framework outside of the defamation and fraud context. In Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982), for example, we held that “[t]here is no first amendment protection for furnishing with predatory intent false information to an administra-
11896 UNITED STATES v. ALVAREZ tive or adjudicatory body,” and thus the First Amendment did not shield the defendants from antitrust liability. Id. at 1261; see also id. (“The first amendment has not been interpreted to preclude liability for false statements. . . . ‘[T]here is no constitutional value in false statements of fact.’ ” (quoting Gertz, 418 U.S. at 340)). We “recogniz[ed] that under certain circumstances allowing the imposition of liability for statements can hamper debate, see New York Times,” which “may suggest that a court should adopt a stricter standard of proof,” but we determined that defendants’ statements were unprotected regardless of the correct standard of proof because “defendants knew the falsity of their statements.” Id. at 1262 (emphases added). In other words, the defendants’ knowledge of the falsity of their statements placed the defendants’ statements clearly outside of the First Amendment. Thus, unlike in Time and Pickering, there was no need for any further discussion of whether the New York Times “actual malice” requirement applied. See id. More recently, in Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001), we applied the New York Times framework to a case in which the plaintiff claimed that his common law right of publicity had been violated by the defendant’s publication of an altered photograph of the plaintiff’s name and likeness, see id. at 1183, which “create[d] a false impression in the minds of the public that they were seeing [the plaintiff’s] body,” id. at 1186 (quotation marks omitted). Regarding the defendant’s First Amendment defense, we determined that the question was whether the district court correctly held that the First Amendment did not protect the defendant’s publication because the defendant “published that image knowing it was false and intending that the readers believe the falsehood.” Id. (emphasis added). Although we eventually concluded that the district court erred in finding that “actual malice” existed, id. at 1189, the important point is that a finding of knowledge as to falsity would have meant that the defendant’s publication was not protected by the First
Page 1 and 2: FOR PUBLICATION UNITED STATES COURT
Page 3 and 4: 11850 UNITED STATES v. ALVAREZ The
Page 5 and 6: 11852 UNITED STATES v. ALVAREZ tion
Page 7 and 8: 11854 UNITED STATES v. ALVAREZ Meda
Page 9 and 10: 11856 UNITED STATES v. ALVAREZ van,
Page 11 and 12: 11858 UNITED STATES v. ALVAREZ v. C
Page 13 and 14: 11860 UNITED STATES v. ALVAREZ Cohe
Page 15 and 16: 11862 UNITED STATES v. ALVAREZ an a
Page 17 and 18: 11864 UNITED STATES v. ALVAREZ [7]
Page 19 and 20: 11866 UNITED STATES v. ALVAREZ Stev
Page 21 and 22: 11868 UNITED STATES v. ALVAREZ howe
Page 23 and 24: 11870 UNITED STATES v. ALVAREZ [9]
Page 25 and 26: 11872 UNITED STATES v. ALVAREZ or e
Page 27 and 28: 11874 UNITED STATES v. ALVAREZ year
Page 29 and 30: 11876 UNITED STATES v. ALVAREZ degr
Page 31 and 32: 11878 UNITED STATES v. ALVAREZ word
Page 33 and 34: 11880 UNITED STATES v. ALVAREZ unle
Page 35 and 36: 11882 UNITED STATES v. ALVAREZ such
Page 37 and 38: 11884 UNITED STATES v. ALVAREZ then
Page 39 and 40: 11886 UNITED STATES v. ALVAREZ tect
Page 41 and 42: 11888 UNITED STATES v. ALVAREZ of w
Page 43 and 44: 11890 UNITED STATES v. ALVAREZ disr
Page 45 and 46: 11892 UNITED STATES v. ALVAREZ 2 Ev
Page 47: 11894 UNITED STATES v. ALVAREZ made
Page 51 and 52: 11898 UNITED STATES v. ALVAREZ word
Page 53 and 54: 11900 UNITED STATES v. ALVAREZ Amen
Page 55 and 56: 11902 UNITED STATES v. ALVAREZ c Th
Page 57 and 58: 11904 UNITED STATES v. ALVAREZ and
Page 59 and 60: 11906 UNITED STATES v. ALVAREZ know
Page 61 and 62: 11908 UNITED STATES v. ALVAREZ prom
Page 63 and 64: 11910 UNITED STATES v. ALVAREZ tude
Page 65 and 66: 11912 UNITED STATES v. ALVAREZ * *
Page 67 and 68: 11914 UNITED STATES v. ALVAREZ faci
Page 69 and 70: 11916 UNITED STATES v. ALVAREZ 1 Th
Page 71 and 72: 11918 UNITED STATES v. ALVAREZ 2 Ev
Page 73 and 74: 11920 UNITED STATES v. ALVAREZ the
Page 75 and 76: 11922 UNITED STATES v. ALVAREZ sarc

USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?