USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
Amendment, irrespective of the fact that the purported falsehood
was not defamatory or fraudulent. 5
Under the majority’s view, the Supreme Court’s decisions
in Time and Pickering, and our decisions in Clipper Exxpress
and Hoffman, are all disapproved, if not overruled. But even
putting aside these precedents, I do not believe that the majority’s
principle is logical. Given that the Court has clearly recognized
defamation as one of the exceptional situations where
protecting certain false statements is necessary to “protect
speech that matters,” Gertz, 418 U.S. at 340, I cannot see how
Gertz could have meant “defamation” when it said that “false
statements of fact” are unprotected. If that were true, there
would be nothing left of Gertz’s statement that false statements
of fact fall outside of First Amendment protection. In
other words, the majority interprets Gertz the following way:
defamation is unprotected by the First Amendment, but it is
necessary to protect defamation in order to protect speech that
matters. Under the majority’s logic, Gertz is internally inconsistent,
and the exception has swallowed up the rule.
3
11897
Although I believe that it is clear that the Supreme Court’s
statements regarding false statements of fact extend outside of
the defamation and fraud context, I nevertheless find it necessary
to respond to the majority’s misguided “bona fide harm”
theory. The majority asserts that the Supreme Court has
extended the New York Times-Garrison-Gertz framework
only to false statements “likely to cause a bona fide harm,”
such as those that constitute fraud. Maj. Op. at 11870. In other
5 The majority is “not persuaded that Hoffman . . . is anything more than
a variation on defamation jurisprudence.” Maj. Op. at 11865 n.10. But
although the false statements in Hoffman were arguably more like defamation
than the false statements in Alvarez’s case, Hoffman and similar cases
nevertheless demonstrate that “false statements of fact” means “false
statements of fact,” not simply “defamation,” and that the former represents
the historically unprotected category of speech, not the latter.