USA v. Xavier Alvarez - Ninth Circuit Court of Appeals

UNITED STATES v. ALVAREZ
11855
ous, and the insulting or ‘fighting’ words-those which by their
very utterance inflict injury or tend to incite an immediate
breach of the peace “); New York Times Co. v. Sullivan, 376
U.S. 254, 269 (1964) (listing, in defamation case, other low
value speech categories as including: “insurrection, contempt,
advocacy of unlawful acts, breach of the peace, obscenity,
solicitation of legal business” (footnotes omitted)).
The primary argument advanced by the government, and
our dissenting colleague, is that the speech targeted by the Act
—demonstrably false statements about having received military
honors—fits within those “well-defined” and “narrowly
limited” classes of speech that are historically unprotected by
the First Amendment. The government and the dissent rely on
Gertz v. Robert Welch, Inc. and its progeny for the proposition
that “the erroneous statement of fact is not worthy of constitutional
protection.” 418 U.S. 323, 340 (1974). In Gertz, the
Court classified false statements of fact as “belong[ing] to that
category of utterances” that “ ‘are of such slight social value
as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and
morality.’ ” Id. at 340 (quoting Chaplinsky, 315 U.S. at 572).
Thus, the government and the dissent conclude, regulations of
false factual speech may be proscribed without constitutional
problem—or even any constitutional scrutiny.
We disagree. Gertz does not stand for the absolute proposition
advocated by the government and the dissent. See Nike,
Inc. v. Kasky, 539 U.S. 654, 664 (2003) (Stevens, J., concurring
in dismissal of writ as improvidently granted) (noting
that the Court’s statement in Gertz that false statements of fact
are unprotected speech is “perhaps overbroad[ ]”). Rather,
Gertz’s statement that false factual speech is unprotected,
considered in isolation, omits discussion of essential constitutional
qualifications on that proposition.
[3] It has long been clear that First Amendment protection
does not hinge on the truth of the matter expressed, see Sulli-