United States v. Alvarez

122.28(a)(2). § id. homogenous. See America, STATES of UNITED issued, permit has been general

After a Plaintiff-Appellee, by it is covered that believes entity a “notice of submits general permit gen- discharge pursuant intent” to ALVAREZ, aka Xavier Javier RGK- 122.28(b)(2). gen- § A Id. permit. eral Alvarez, Defendant-Appellant. discharging to can allow permit eral No. 08-50345. of the notice of receipt upon commence or after intent, waiting period, after Appeals, United States Court response sends out a issuer permit Ninth Circuit. covered discharger agreeing that Argued and Submitted Nov. 2009. Id. permit. general 122.28(b)(2)(iv). Aug. Filed now, acted on the as- EPA has Until are not permits that NPDES

sumption discharges pollutants from

required for

ditches, culverts, channels that collect and logging from roads.

stormwater runoff not had occasion to

EPA has therefore process for such permitting

establish confident, given

discharges. But we permitting NPDES closely analogous runoff from other

process for stormwater roads, that EPA will be able to do

kinds effectively relatively expeditiously.

so

Conclusion reasons, foregoing we conclude

For the logging runoff from roads stormwater discharged and then collected ditches, culverts, system

from a discharge point

channels is source permit required.

which an NPDES

We therefore REVERSE the district to dis- grant

court’s of Defendants’ motion

miss, we REMAND to the district consistent proceedings

court for further opinion.

with this D. Libby, Deputy

Jonathan Federal Defender, CA, Angeles, Public Los for the defendant-appellant. Missakian, H.

Craig Assistant At- torney, Cyber and Intellectual Property Section, CA, Angeles, Los the plaintiff- appellee. NELSON,

Before: T.G. JAY S. BYBEE, SMITH, JR., and MILAN D. Judges. Circuit SMITH, Opinion by Judge MILAN D. JR.; by Judge Dissent BYBEE. SMITH, Judge: M. Circuit Defendant-Appellant Xavier Alvarez conditionally pleaded guilty to one count of falsely verbally claiming to have received Honor, in Congressional Medal of vio- (the Act), lation of the Act Stolen Valor 704(b), (c),1 § reserving right U.S.C. his constitutionality. the Act’s appeal Although predecessor meaning have and versions existed of such decorations med- als,” "[[legislative necessary of the Act and that action since current form was year, Congress protect passed permit in 2006. In that found law enforcement officers to ''[fjraudulent meaning military surrounding reputation re- deco- claims ceipt [and of the Medal of Honor other Con- rations and medals.” Stolen Valor Act of medals, 2(1), (3), military gressionally deco- Pub.L. No. authorized rations, (2006). damage reputation Stat. awards] By- drafted, analysis proffered by Judge under the applies to Act, presently bee, imposes penal- a criminal then there would be no constitutional speech; it pure imprisonment, plus year to a one’s ty np criminalizing lying about bar writing fíne, the mere utterance weight, age, or financial status on height, as, is, a false may perceived be what Facebook, falsely repre- Match.com or anything more. fact—without statement mother that one does not senting to one’s smoke, a vir- beverages, drink alcoholic us because Act therefore concerns speed limit gin, or has not exceeded setting precedent a potential for of its freeway. The sad fact driving while on the may proscribe whereby government is, people aspects most lie about some we solely it is a lie. While speech because Perhaps, in knowingly that most their lives from time to time. with the dissent agree unworthy context, of consti- many factual are within the these lies that, accordingly, protection and tutional But the government’s legitimate reach. subject of a made the many lies be decide that some lies government cannot a creating constitu- criminal law without reviewing a may not be told without adopt cannot a rule as problem, tional we undertaking thoughtful analysis a court’s and dissent advo- government as the broad by of the constitutional concerns raised trampling cate without on the fundamental speech. interference with government such right speech. to freedom of See Jonathan Finding appropriate way no to avoid the Varat, Deception D. and the First Amend- poses, Alvarez question First Amendment Central, Complex, A ment: Somewhat speech proscribed we hold that the L.Rev. Relationship, 53 UCLA Curious sufficiently among to fit Act is not confined (“[AJccepting unlimited categories speech pre- the narrow of false deception all government power prohibit viously beyond held to be the First in all circumstances invade our would protective sweep. Amendment’s We then rights expression of free and belief to an Act, apply scrutiny strict review to the degree, including nota- intolerable most it hold unconstitutional because is not counterintuitively—our bly—and however narrowly achieving compelling tailored to rule.”). rights personal political self governmental interest. regulations Rather we hold that of false must, factual like other content- AND FACTUAL PROCEDURAL restrictions, subjected to based be BACKGROUND scrutiny nar- strict unless the statute is Xavier Alvarez won a seat on the Three rowly target type crafted to of false Valley Water District Board of Directors speech previously proscribable held factual July joint in 2007. at a On protected by because it is not the First water district meeting neighboring with Amendment. board, newly-seated Director Alvarez The rule the and dissent himself, “I’m stating arose and introduced the Act urge apply uphold us to order to years. marine I a retired of 25 retired would, adopted, significantly enlarge if 1987,1 year 2001. Back in was award- scope existing categorical exceptions I Congressional ed the Medal of Honor. protection. previous First Amendment All got many guy. times the same wounded circumstances which lies have been I’m around.” still just know- proscribable found involve not Alvarez never been awarded the falsity, ing but additional elements Honor, Congressional Medal of nor has he speech may pun- serve to narrow what Indeed, day a marine or in the spent single if the Act is constitutional ished. was indicted the Central District of of the United other branch service short, with the on of violating forces. California two counts armed States around,” (c)(1). self- 704(b), “I’m still his exception of he Specifically, U.S.C. nothing but a series was “falsely introduction charged representing] was with bizarre lies. verbally that he had awarded the been when, in Congressional Medal of Honor during misrepresentations Alvarez’s knew, truth and as he had re- [he] meeting were water district board Congressional ceived the Medal of Honor.” string of fabrica- long latest in a only the appears person Alvarez to be the first hobby Alvarez makes Apparently, tions. charged present and convicted under the people himself to make lying about version of the Act. from the mental psycho think he is “a The summer with Rambo stories.” ward moved to dismiss Alvarez the indict- district election to the water before his ment, claiming the Act is unconstitu- board, FBI informed the about a woman applied tional both on its face and as to making for false propensity Alvarez’s him. The district court denied the motion. military past. Alvarez claims about his pleaded guilty Alvarez then first the of Honor her that he won the Medal told count, reserving right appeal his rescuing the American Ambassador for question. First Amendment He was sen- crisis, hostage Iranian and that during the a pay special tenced to assessment $100 he re- had been shot the back as he $5,000 fine, years and a to serve three embassy to the to save the Ameri- turned probation, perform and to 416 hours of reportedly told another flag. can Alvarez community service. This case addresses a veteran woman that he was Vietnam timely appeal Alvarez’s of the constitution- helicopter pilot who had been shot down al issue. buddies, then, help with the of his was but sky. into the get chopper able to back AND JURISDICTION STANDARD military In addition to his lies about OF REVIEW service, to have Alvarez has claimed brings as-app Alvarez both facial and hockey Wings, Red played for Detroit validity challenges to the of the Act lied (who officer was police to have worked as under the First Amendment. We review force), using excessive fired question the constitutional de novo. See to a secretly have been married Mexican Perry Dep’t, v. L.A. Police 121 F.3d observed, court starlet. As district (9th Cir.1997). 1367-68 world, in a a make-believe “live[s] Alvarez jurisdiction pursuant have to 28 We just up stories make[s] world where [he] § 1291. U.S.C. credibility in all the time.... no [T]here’s

anything say[s].” [he] DISCUSSION recording FBI obtained a

After the meeting, provides: Alvarez The Act the water district board Because, infra, might able to introduce in the Act ment have been as described further drafted, broadly government was not prove particular is so state- order to that Alvarez’s anything instance, required prove before the district unprotected. For some ments were except that Alvarez made a false state- court suggests might evidence in the record he have Congres- having ment about his received issue, claim at or similar mis- made which Alvarez sional Medal of Honor—to fraudulently ob- representations, in order to very guilty. Accordingly, we know pleaded tain certain benefits. govern- what other evidence the little about Hampshire, 315 himself or v. New falsely represents Whoever (1942). 766, 86 L.Ed. 1031 As herself, writing, or in to have verbally recently by Court any explained decoration or medal been awarded the Armed States v. Stevens: by Congress for United authorized States, any of the Forces of the United present,” “From 1791 to the badges awarded to the service medals or “permitted re- First Amendment forces, ribbon, of such but- members upon the content of strictions ton, any badge, such deco- or rosette of areas,” limited and has never “in- few ration, medal, imita- colorable disregard a freedom to these clude[d] under tion of such item shall be fined traditional limitations.” These “historic title, than imprisoned not more six categories long familiar traditional months, or both. obscenity, def- bar[ ]” [ ] includ[e] amation, fraud, incitement, 704(b). prescribed prison 18 U.S.C. integral to criminal conduct.... year if the

term is enhanced to one decora- —of Congressional tion involved is the Medal —, 1577, 1584, 176 cross, Honor, distinguished-service (2010) (internal omit L.Ed.2d 435 citations cross, cross, Navy an Air Force a silver ted); 572, at Chaplinsky, see also 315 U.S. (d). 704(c), star, Purple or a Heart. Id. (explaining unprotected 62 S.Ct. 766 that obscene, speech includes “the lewd and the I libelous, profane,3 insulting and the proscribes The Act false verbal or by very which their ‘fighting’ words-those representations being about one’s written injury utterance inflict or tend to incite an Congressionally authorized mili awarded peace”); immediate breach of the New tary parties honors and decorations. The Sullivan, 254, York Times Co. v. 376 U.S. dispute do not that the Act “seek[s] (1964) 269, 710, 11 84 S.Ct. L.Ed.2d 686 ” regulate ‘only ... words.’ Broadrick v. case, (listing, in defamation other value low Oklahoma, 601, 612, 413 U.S. 93 S.Ct. categories as speech including: “insurrec 2908, (quoting 37 L.Ed.2d 830 Good tion, acts, advocacy contempt, of unlawful Wilson, 518, 520, ing v. 92 S.Ct. obscenity, the peace, breach of solicitation (1972)). 1103, Moreover, 31 L.Ed.2d 408 (footnotes omitted)). legal of business” targets specific Act about a words primary argument The advanced subject: military honors. The Act government, dissenting colleague, and our plainly regulation of content-based speech targeted by is that the the Act— speech. demonstrably false statements about hav- military ing Content-based restrictions ordi- received honors—fits within narily subjected scrutiny. “narrowly are to strict See those “well-defined” and limit- v. Playboy Group, historically United States Entm’t ed” classes of that are Inc., 1878, 803, 813, unprotected by 120 146 the First Amendment. U.S. S.Ct. (2000). However, rely government L.Ed.2d 865 there is and the dissent on Welch, exception ordinary proge- rule for “certain v. Robert Inc. and its Gertz narrowly ny proposition well-defined and limited classes for the “the erroneous speech, prevention punishment worthy statement of fact is not of constitu- 323, 340, thought of which has never been to raise tional protection.” 418 U.S. (1974). any problem.” Chaplinsky Constitutional 41 L.Ed.2d 789 outdated, Amendment), protected by Chaplinsky's 3. Since list is see Co the First we find California, hen v. the current list in Stevens be the most (1971) (holding profanity pertinent. Gertz, Pharmacy v. Va. Citizens Consumer false statements the Court classified Council, 748, 771, category to that “belonging] of fact as “ the “First Amend- 48 L.Ed.2d slight social ‘are of such utterances” requires protect ment that we some false- any benefit step to truth value as protect speech hood in order to that mat- clearly from them is may be derived ters,” at 94 S.Ct. 2997. in by the social interest order outweighed ” Sullivan, eloquently explained As in morality.’ 94 S.Ct. 2997 Id. point others to his own persuade [t]o Chaplinsky, 315 U.S. (quoting know, view, times, pleader, as we 766). Thus, and the exaggeration, to vilification of resorts to conclude, of false factu- regulations dissent been, are, prominent men have who proscribed without con- al state, in church or and even to even constitu- problem—or stitutional people But the of this nation statement. scrutiny. tional light history, in the have ordained does not stand for disagree. Gertz We that, spite probability excess- advocated proposition the absolute abuses, are, in es and these liberties Nike, the dissent. See government and view, long enlightened opin- essential to Kasky, 539 U.S. Inc. v. right part ion and conduct on the (2003) (Stevens, J., L.Ed.2d 580 democracy. citizens of a improvi- of writ as concurring dismissal statement is inevitable [Erroneous the Court’s dently granted) (noting debate, pro- and ... it must be free that false statements statement Gertz expression tected if freedoms of “perhaps unprotected speech fact are breathing space to have the ]”). Rather, statement Gertz’s overbroad[ need to survive. unprotected, factual is that false (internal 376 U.S. at 84 S.Ct. 710 isolation, discussion of considered in omits omitted) (em- ellipsis marks and quotation on qualifications constitutional essential added). Thus, phases while some false that proposition. speech may proscribable, factual be the clear that First Amend long It has been Supreme Court has shown that not all of it hinge not on the protection ment does next consider how the distinction is is. We expressed, truth the matter see Sulli made. (“Au van, 84 S.Ct. 710 376 U.S. of the II interpretations thoritative consistently have guarantees rejection of begin by noting We our the exception any an for recognize refused to government’s suggestion because ”), hinge truth .... nor does it on test of “[f|alse particularly fact statements of “ideas,” “facts” and the distinction between Falwell, valueless,” Magazine Hustler Nike, 123 S.Ct. 2554 485 U.S. 99 L.Ed.2d J., (Breyer, dissenting from dismissal of “Congress prohibit false (“That improvidently granted) writ as the immunity statements of fact unless containing false statements] [document been carved out or should be carved out against argue factual content does not requires because the First Amendment facts, for protection, First Amendment of some falsehood order to protection alone, sway will our views sometimes facts In protect speech that matters.” other Although public policy.”). words, on issues of that there government the contends falsity by statements characterized both protection no for false statements of fact shown, case, protected particular and factualness have never been unless it can be in a sake,” Bd. that there should be. “for own Va. State [their] view, rejected regulation profani- we can- Court state Contrary to the dissent’s ty principle by because “the contended for government’s approach adopt inherently seems boundless. State false factual rule for general distinguish any How is one to this from customary First Amend- turning without other offensive word?” 403 U.S. analysis on its head. ment (1971). 1780, 29 L.Ed.2d 284 This First, proposed government’s under the How, analogous. case is to that extent effectively become approach, would by principle proposed based on the that his false prove burden to speaker’s government, distinguish would one the rel- from crimi- protected statement should receipt ative value of lies about one’s of a approach That runs con- prosecution. nal from the military decoration relative value precedent. See trary Court any other false statement of fact?4 The Hepps, Inc. v. Philadelphia Newspapers, government argues “protection that the 767, 776-77, 106 S.Ct. military receipt false claims of honors is (1986) (“In the context of L.Ed.2d 783 necessary press, politi- to free to free speech, it has governmental restriction expression, promote cal or otherwise to government long been established nearly But in marketplace of ideas.” ev- speech protected cannot limit the First case, ery demonstrably an isolated bearing the burden of Amendment without statement will be not be considered “nec- justified.”); showing its restriction essary” promoting core First Amend- Sullivan, see also values, contrary ment and will often be (“Authoritative interpretations of the ease, nearly every it. the false state- guarantees consis- First Amendment have outweighed perceived ment will be exception an tently recognize refused to the lie inflicts on the truth-seeking harm especially test of truth ... one function marketplace of ideas. Us- puts proving the burden of truth on ing approach, such speaker.”). always However, would almost succeed. Second, government’s approach approach such an is inconsistent with the give signifi- it license to interfere would maintenance of a and uninhibited robust cantly private public with our and conver- Stevens, marketplace of ideas. See Placing in favor presumption sations. (explaining govern- that the regulation, government “[wjhether of as the and dis- that a suggestion given ment’s does, proposed steadily sent’s rule would enjoys category speech of First Amend- undermine the foundations of the First protection depends upon categori- ment a California, cal balancing speech Amendment. Cohen v. of the value of the question possible exception answer to this is to R.A.V. in which One in for cases analysis outlined in use the mode of R.A.V. possibility "there is no realistic that official Paul, City St. afoot," suppression of ideas is id. at which holds that added), probably S.Ct. 2538 would entirely unprotected even content cannot be Thus, given difficulty identifying apply. targeted view-point. on the basis of Even potential viewpoint afoot discrimination here, given Congres- that one frame the could targeting about in laws false statements sim- intending sional intent behind the Act as to facts, rely ple, pri- we do not demonstrable prevent telling disparage lies that tend to mili- marily permissible on R.A.V.to sort between tary, possible viewpoint concerns about dis- speaking impermissible and restrictions on However, may legitimate. crimination be acknowledge, We false statements fact. targeting fact, includ- laws false statements of however, might help that R.A.V. us avoid one, ing unlikely directly express this are to logical slippery slope. plunging down a viewpoint, meaning relate to an identifiable However, “startling ny. right speak to and write its societal costs” is against chooses—including, whatever one to some “The First Amendment’s dangerous”). worthless, offensive, degree, speech does not extend and demon- guarantee of free in speech cowering that survive strable untruths—without fear only categories to is, view, powerful government relative costs of a in our balancing hoc social ad component an essential language protection Id. The from and benefits.” in to establish afforded the First Amendment. The Chaplinsky, borrowed Gertz confusing factual are “of such dissent accuses us of rules with that false statements truth that slight step exceptions, respect, social value as to but with due we dis- may agree postulate be from them with his benefit derived we must com- clearly outweighed by the social interest analysis mence our constitutional with the morality,” in Chaplinsky, understanding order and all false factual not set “do[es] U.S. at unprotected. The fundamental rule is may applied forth a test found the First Amendment itself: permit matter to the Government general “Congress abridging shall make no law ... Const, any speaker long so as his imprison to the freedom of speech.” U.S. speech is deemed valueless unneces- Any amend. I. rule certain Stevens, 130 S.Ct. at 1586.5 sary[.]” protected by principle this foundational exception, is the which turn be Profanity deliberately false state- subject to other exceptions protect rarely meaningful- ments of fact contribute against such exceptions swallowing the issues, important over ly public debate rule. but right expres- constitutional of free [t]he words, In other presumptively we society in a powerful sion is medicine as protect speech against government all in It populous diverse and as ours. is de- terference, leaving it to the signed govern- and intended remove demonstrate, through either well-crafted pub- mental restraints from the arena of case-specific application, statute or the his discussion, putting lic the decision as to a compelling torical basis for or need to largely what views shall be voiced into (in protection remove some from the hands of each of us.... case, than for some reason other that, sight cannot lose of the fact We lie). Though mere fact that it is a such an might trifling what otherwise seem approach may protection result for a annoying instance of individual dis- lies, which often nothing number abuse of a these fun- privilege, tasteful than more the “distasteful abuse [the truly impli- damental societal values are Cohen, privilege,” First Amendment] 403 cated. 25, 1780, at U.S. 91 S.Ct. it is constitution

Cohen, 24-25, at 91 S.Ct. 1780 ally required general because the freedom added). government from interference speech, with in certainly general engage pub There is no unbridled constitu- and the freedom to right any regulation private tional to lie such that lic and without the conversations subjected injecting into the lying must be to strict scruti- itself discus- Although proposed public record should be 5. the dissent denies the lie on matters of balancing, rule would result in ad hoc his public will obvious” and that “our discourse analysis own shows that it does. See Dissent by chilling not be worse for the loss” caused p. (explaining at that the Act 1233 does autobiographical by public "false claims offi- speech cover that matters because "the harm Alvarez”). cials such as public outright lying pub- from officials to the 1206 truth, A contribute

sion the arbiter as space” the First Amend- “breathing by private involved a libel action a Gertz Gey, See Steven G. ment needs to survive. a for the news- against newspaper citizen Amendment and Dissemina- The First of an accusation paper’s printing reckless Untruths, 36 Socially tion Worthless plaintiff was Communist. (2008). 1, 21-22 “The Fla. St. U.L.Rev. 326-27, at 94 S.Ct. 2997. The Court Amendment, Judge said Learned First ground” with the “common that began Hand, right conclusions ‘presupposes in “there is no constitutional value likely gathered to be out of a are more statements of fact. Neither the intention- any than tongues, through multitude of materially al lie nor the careless error ad- many To selection. kind of authoritative ‘uninhibited, society’s vances interest be, is, always folly; will but we and robust, wide-open’ public debate on is- ” Sullivan, all.’ upon have it our staked (quot- at sues.” Id. (quoting 84 S.Ct. 710 United Sullivan, ing Press, F.Supp. States v. Associated 710). But the Court did end there. (S.D.N.Y.1943)). “The First Amend- Rather, it emphasized “[ajlthough the judgment by reflects a ment itself worthy erroneous statement of fact is not people American benefits of its protection, of constitutional is neverthe- outweigh restrictions on the Government less inevitable free debate.” Id. at any the costs. Our Constitution forecloses Therefore, “[t]he First judgment attempt simply to revise on requires protect Amendment that we some speech the basis that some is not worth it.” protect speech falsehood order to Stevens, at 1585. matters.” Id. 94 S.Ct. 2997. To distinguish

Ill between the falsehood related public pro- to a matter of concern that is speech targeted by If the the Act tois unprotected, tected and that which is among be declared those classes of that there Gertz held must be element prohibited which can be without con- fault. Id. at 94 S.Ct. 2997. In- (the problem exceptions stitutional deed, consistently the Court has held that Amendment), must fit a speaker publishes when a false state- within those cat- “historical traditional public ment of fact about a matter of con- egories long familiar to the bar.” Id. cern, (internal omitted). punished such a statement can be quotation marks (as only authority upon showing some of malice holding We find no that false opposed negligence),7 factual to mere speech, general category as unto because the itself, among requirement potential them.6 malice avoids the course, Nike, scrutiny. 6. Of in the area of commercial See (dismiss- speech, analysis might that follows Here, very suggestion ing—with highly different. there is no fractured Court—certiorari targets speech, that the Act commercial improvidently granted involving case therefore we do not address commercial question of whether false with speech given unique way which it is in public aspects both commercial and interest treated under the Amendment. First Howev- degree is entitled to a of First Amendment er, additionally persuaded up- we are protection). holding require the Act would a novel exten- that, by punished sion of the fact even in the 7. A false statement of fact can be Gertz speech, knowingly upon showing negligence context commercial false a of mere in the of speech public private purely factual about a matter of con- context of defamation. Dun & Bradstreet, Builders, Inc., potentially heightened entitled to cern is Inc. v. Greenmoss

1207 livan, 271, 710. U.S. at 84 S.Ct. simply make 376 speakers who punishing for Sullivan, always speech is whether the for- question 376 at See innocent errors. a protection feits its First Amendment as 283, 710. The First Amendment 84 S.Ct. falsity by alleged of its “and its punishment result preventing with is concerned plaintiff].” (empha- Id. prospect [the mistakes because of innocent defamation of added). words, In other in a defama- “runs the sis speech for such punishment case, question a is whether and restrictive tion threshold inducing a cautious risk of defamatory, at issue constitutionally guaranteed the false is of the exercise Gertz, meaning that the defamer’s false state- press.” freedoms of Thus, 340, proximate irrepa- ment cause of an many 2997. at 94 S.Ct. reputation. shielded rable8 harm to another’s See factual statements are (hold- Gertz, 327, Gertz, 94 S.Ct. 2997 First Amendment even under may long they impose that “so as do not ing how valueless be. regardless of fault, ... liability in v. Louisi- without the States emphasized This is Garrison ana, liability publisher [impose] clarified “the for broad- which Court defamatory injurious falsehood false statement caster of knowingly do[es] individual”). private enjoy protection.” constitutional 379 U.S. 209, 64, 75, 85 S.Ct. fit Since the Stevens Court saw to name Sullivan, added); also (emphasis specifically, defamation rather than false 283,

U.S. at 84 S.Ct. generally, statements of fact as the histori- Moreover, category clarification is not cal excluded from constitutional Garrison’s protection, refinement. In defama- we believe the historical cate- only relevant question gory unprotected speech has never identified jurisprudence, tion defamation, and related law is not all simply whether the “forfeits Gertz been protection by speech. the falsi- false factual The dissent errone- Amendment] [First on ty ously some of its factual statements.” Sul- relies Gertz its statement necessarily required 86 L.Ed.2d that harm is element 472 U.S. 105 S.Ct. (1985). (al unprotected speech regulations Because we take the statements for all concern, public at issue here to be though interesting present we find it that it is of the Act calls for the rather, because violation them); only many we here note penalty imposition of a criminal on the viola- required defamation. that it is a element of speaking public tor for about a matter of Defamation, every "unprotected” catego like concern, (at an element malice least reck- ry, thoughtful unique definitional involves disregard falsity less for the truth or of the obscenity analysis, see n. 9. Even doc infra statement) constitutionality, necessary to its trine, argues which the dissent includes no gov- assuming jurisprudence even defamation element, requires still the statute to harm erns this case. "obscenity" conformity define with the See, e.g., constitutional rule. Paris Adult The importance irreparability, see in- 8. On the Slaton, atre I v. pp. argues 1216-17. The dissent fra (1973) (reaffirming L.Ed.2d 446 that obsceni length conjured up that we have this harm ty unprotected, holding the an anti- but cloth, p. element out of whole see Dissent obscenity carefully drafted or statute must be directly but it comes from several construed to meet First Amendment stan See, e.g., "unprotected” speech. cases about Thus, dards). supplies if law defamation Chaplinsky, U.S. at 62 S.Ct. 766 case, applied in this we cannot rule to fighting (identifying words "those which ignore in that the definition of defamation very injury utterance inflict or tend to their Gertz, See, e.g., injury reputation. cludes peace”) breach of the incite immediate 2997; Sullivan, added); U.S. at Bradstreet, 710; & "injuri- U.S. at Dun (describing S.Ct. 2997 defamation as 762, however, ous”). suggest, 472 U.S. at 105 S.Ct. 2939. We not mean to do 1208 unpro- language and resolves the speech is valueless and Gertz

false factual tected, government’s in without actually what Gertz case favor ignoring while held, engaging any analysis in First Amendment the Court Gertz framed and how analyzed dissenting colleague, the First at all.9 Unlike our carefully the issues and eager are not to extend a raised the case. we statement questions Amendment (often not, quoted, qualified) often made in dissenting colleague does because but Our cannot, juris- any complicated citation to relevant area of defamation provide he authority suggested ap- prudence that follows his into new context order justify unprecedented excep- and vast in which the Court characterizes proach, speech guarantees.10 false factual under tion to First Amendment targeting law as correct, Judge Bybee opinion speech). why If is in this to commercial That is also re- a few "unprotected” speech case would need to be no more titan strictions on are at paragraphs length. pp. See, Cohen, See Dissent at e.g., times invalidated. 403 U.S. Starting premise 1231-32. with the that false 15, 1780, (rejecting, 91 S.Ct. 29 L.Ed.2d 284 unprotected, he it statements are believes grounds, on First Amendment restrictions of follows that the First Amendment therefore 518, profanity); Gooding, 405 U.S. 92 S.Ct. presumptively apply. does not He takes one 1103, (striking fighting L.Ed.2d 31 408 down briefly step whether back to consider there is Hustler, 46, statute); words 485 U.S. protect particular need to false state- 876, (prohibiting L.Ed.2d 41 recov- targeted by Act ments in order to ensure action); ery for emotional distress in libel none, political speech, seeing robust con- Union, Reno v. Am. Civil Liberties 521 U.S. cludes no First Amendment there is issue. 844, 2329, (1997) 117 S.Ct. 138 L.Ed.2d 874 opinion would end there. (finding portions Decency of Communications course, requires Of the First Amendment Amendment). Act invalid under the First why "unprotected” more. even in That is Thus, agrees even if one with the dissent that cases, analysis the First Amendment is progeny requires and its the historical Gertz Sullivan, rigorous. nonetheless See 376 U.S. category unprotected at issue here 268, ("Like insurrection, 84 S.Ct. 710 con knowingly be defined as false factual acts, tempt, advocacy of unlawful breach of se, per simply enough that is to make the peace, obscenity, legal solicitation of busi analysis. Act immune from First Amendment ness, and the various other formulae for the Judge Bybee’s approach excepting "some fal- repression expression that have been chal necessary protecting sehood” when Court, lenged in this libel can claim no talis speech that matters reintroduces some First immunity manic from limita constitutional it, scrutiny Amendment into but we believe tions. It must be measured standards that sufficiently approach speech-pro- is not (footnotes Amendment.’’) satisfy the First explained supra pp. tective for the reasons omitted) added); see also Branden correct, then, Judge Bybee 1205-06. If we Ohio, 444, 447, burg v. 395 U.S. 89 S.Ct. entirely will need an new constitutional rule 1827, (1969) (articulating 23 L.Ed.2d 430 speech regulations. for false Rather than incitement); test for Good guess adopt what rule the Court would 522, ing, (requiring 92 S.Ct. 1103 newly-broadened category unprotected fighting "carefully words restrictions to be speech, previously we confine our review to drawn”); Madigan Telemarketing Ill. ex rel. v. unprotected categories. defined Assocs., Inc., 538 U.S. 123 S.Ct. (2003) (requiring L.Ed.2d persuaded 10. We are v. tailored); properly fraud Hoffman statute to be Miller Inc., Cities/ABC, (9th Capital 255 F.3d 1180 15, 23-24, California, Cir.2001), anything more than a variation (1973) (articulating 37 L.Ed.2d 419 jurisprudence. ap on defamation "carefully obscenity regula limited” test for Hoffman plied Black, the actual malice standard from tions); Gertz Virginia v. involving maga (2003) Garrison-Sullivan in a case (engaging 155 L.Ed.2d 535 alleged impression zine’s creation of analysis in First Amendment to determine test posed photograph. that a for a regulations); famous actor for true threat Va. State Bd. of Time, 1187; Hill, Pharmacy, Id. at Inc. v. also cf. (applying scrutiny L.Ed.2d 346 intermediate 115, 1691, (1990). Indeed, us instructs not to do so: Stevens [followingChaplinsky can- “Our decisions If a requirement ] scienter would save the a establishing freewheeling not as statute, be taken obliged we would to read it in if be authority to declare new categories possible. v. Gray Winthrop See speech scope outside the the First (9th Cir.1993). Corp., 989 F.2d at Amendment.” 130 S.Ct. 1586. might Such an be approach reasonable since most the truth people know about background this constitutional With themselves, thereby permitting us to con- mind, we next consider whether the Act strue the a require knowing Act to viola- category. fits into the defamation We as Indeed, government charged tion. Al- military receipt sume that decorations is with knowingly making varez the false concern, a public primarily matter of statement. Congressional military recog and involves Act, however, The public nition of service. But that is enough. not Court has violation, require does a malicious nor person never held that a can be liable for requirement does other it contain defamation merely spreading knowing- for (collectively, element of scienter a scienter ly false statements. The must also requirement). require Without scienter “injurious private to a individual.” application, ment limit the Act’s the Gertz, raises serious constitutional con statute course, beyond Of if the text we look jurisprudence cerns under defamation be Act, presumptive there is a harm iden- clearly prohib cause the First Amendment by Congress might tified be analo- negligent criminally punishing its gized to the presumption reputational public about matters of concern. See Specifi- harm made in cases. defamation Gertz, 418 U.S. S.Ct. 2997. cally, Congress “Findings” made result, government To avoid such receipt “fraudulent claims” of mili- about at oral preemptively suggested argument honors tary “damage reputation and requirement that a scienter can be read meaning of such and decorations medals.” Adopting government’s into the Act. No. Stolen Valor Act of Pub.L. 109- (even suggestion though the presently Act 437, 2(1), 3266; 120 Stat. at see also 151 element) express scienter includes no S12684-01, Rec. Cong. S12688-99 to construe require

would us the Act to (statement Conrad). We do Sen. requirement government include “Findings” believe the make this defama- prove spoke that the defendant mal- with tion statute. States, ice. Staples v. United See First, 600, 604-06, identify “Findings” while the 128 L.Ed.2d Ohio, (1994); injury the Act do not targets, actually Osborne (holding imposing morality” a state law the "social constitutional interest in order liability outweighs precluding govern- civil for malicious statements the value of private right pri- that invade a individual's ment interference with is absent. 766; vacy). Although injury Chaplinsky, the asserted Hoff- ("The reputation, but to a U.S. at 94 S.Ct. 2997 man is not instead self-censorship by publicity rights, the form of interests at stake need avoid news only sufficiently media is value similar defamation that the ... not the societal were, If it Court would have em- framework can con- issue. Gertz-Garrison-Sullivan long publishers apply significant ago ceptually without a exten- braced the view only enjoy doctrine. When the asserted broadcasters an unconditional in- sion of the immunity liability injury reputation of a defeasible from for defama- is to the institution, added)). finding tion.” the historical basis Sullivan, symbols. of the Act. There is tutions or See 376 U.S. application limit the (“ govern- in the Act that the requirement no 84 S.Ct. 710 court of last ‘[N]o prove that the the burden ment bear held, country in resort this has ever or speech writing proximately or defendant’s suggested, prosecutions even for libel damage reputation and caused government any place on have in the ” military meaning of decorations and med- system jurisprudence.’ American Although sug- common law traditions als. Co., (quoting City Chicago v. Tribune presume can dam- gest that we sometimes (1923)) (em 307 Ill. 139 N.E. cases, in age defamation added)). phasis Preserving the value of there is no military unquestionably decorations is an for readily apparent assuming, reason appropriate worthy governmental and ob specific proof, reputation without jective that Congress may achieve meaning military decorations is through, example, publicizing for every time someone lies about harmed legitimate recipients names of or false having contrary, received one. To the claimants,11creating programs, educational people most obvious reason lie about re- prohibiting posing the act of as a veteran ceiving military honors is because benefits, to obtain certain or otherwise being perceived that their recip- believe carefully circumscribing more what is re acclaim, brings ients of such honors them quired to violate the Act. But the First suggesting generally integrity not permit govern Amendment does reputation of such honors remain unim- pursue objective ment to sort of notably, And even in paired. defamation pure speech regulation means of a like the cases, “publication” required, ensuring a one contained the Act. See Texas v. liability only attaches to those false- Johnson, 397, 418-20, spoken hoods under circumstances (“To (1989) say 105 L.Ed.2d 342 case, which the harm could result. In this interest in encour however, ignore we cannot the fact that aging proper flag, treatment of the howev nothing requires showing the Act (2) er, say may criminally is not to it publicity either victims. Alvarez punish made his statement in a a person burning flag water district as a meeting; board it would have made no political protest.”); means of see also difference under the Act if he had he made States, Schacht v. United privacy the statement of his home at (1970) (“An family dinner. actor, everyone country, like else in our enjoys right a constitutional to freedom of importantly, More even if it were speech, including right openly criti justifiable presume that harm to the cize the during Government a dramatic meaning reputation military decora performance. The last of [10 clause tions occurs whenever a false claim con 772(f) U.S.C. denies this constitutional ] cerning receipt possession their right wearing to an actor who is a military made, government may not restrict by making uniform a crime for him to self-preservation. as means of say things bring military that tend to right against belongs defamation natural persons, governmental disrepute.”). not to insti- into discredit and Indeed, 31, 2010); Congress organizations Congressional and other cessed Mar. Medal Foundation, already publicly http://www. make such lists available. Honor (last Congressional Society, cmohfoundation.org See Medal of Honor accessed Mar. (last Recipients, http://www.cmohs.org ac- 2010). B assuming prevents Act Finally, even preventable by means legitimately a harm defamation, Moving there beyond restriction, writing say to of a or categories other of the historical form Act in its current fits within the and, false speech—fraud involve factual to require would us to doctrine defamation extent, speech integral a certain that is to against of the harm ignore the nature obvious, however, criminal It conduct. law is to which the defamation intended that these also include categories limiting right recovery to for protect. A victim’s speech may pro- to what be characteristics the First trumps defamation defamer’s beyond falsity, just as scribed mere defa- because, Amendment interests when mation law does. falsehoods, “the defamatory to comes precisely Fraud statutes must be crafted with a rarely up truth catches lie” so the target false only specific statements “opportunity for rebuttal seldom suffices likely that are a bona fide to cause harm. Gertz, 418 U.S. n. to undo harm.” at 344 a properly tailored action [I]n fraud the Hustler, 2997; see also proof. State full bears the burden 52, 108 (explaining S.Ct. 876 that defam subject False statement alone does not damage atory “cause to an indi falsehoods [speaker] liability____ to fraud [T]o easily that cannot reputation vidual’s fraud, prove a liable for defendant the repaired by counterspeech, per however complainant must show that the defen- effective”). or The harm caused suasive representation dant made a false of a thought to be irreparable defamation is represen- material knowing fact brought light. even when the truth is further, false; complain- tation was contrast, Here, falsely when someone ant must demonstrate defen- Congres been awarded a claims to have dant made with representation medal, and sionally-authorized his or her listener, intent to mislead suc- exposed self-aggrandiz false claims are as ceeded in doing so. results, lies, ing scandal and counter- Telemarketing Ill. ex rel. v. Madigan As way the truth in a can vindicate socs, Inc., 600, 620, 123 presumes defamatory law rebuttal false (2003). 1829, 155 L.Ed.2d Indeed, per Alvarez was hoods cannot. Even laws or perjury about fraudulent phony as a even before the FBI ceived purest filings—arguably administrative him, and began investigating he has since regulations false statements of fact— community in his publicly been humiliated misrepre at a require minimum that the (one and in online article de press material, willful, sentation be and uttered “idiot,” and post scribed him as an another misrep under in which the circumstances “jerk”). him a described as When value designed injury, resentation is to cause proscribable less even speech, speech, false functioning govern to the proper either speech, can be checked with more best (when ment is under an affirmative one law criminalizing the inconsistent obligation honesty) govern underlying

with the First principles or a economic private person’s ment’s in pp. Amendment. See 1216-17. infra See, v. e.g., terests. States Dunni United Thus, sufficiently gan, the Act is not analo- (1993) (“A bring testifying law it L.Ed.2d 445 witness

gous to an antidefamation per [the under oath or affirmation violates scope within the historical statute, § if jury gives she exception punishing 1621] laws 18 U.S.C. concerning a testimony defamation. false material liability.” provide subject [speaker] intent does not matter with to fraud willful testimony, than rather result of ex Madigan, l. rel. Il confusion, mistake, faulty memory.” Rather, 123 S.Ct. 1829. there must be added)); (emphases (pro 18 U.S.C. (1) proof the false knowing statement was hibiting knowing willful, material (2) mislead, material, and intended to made to false statements obtain health Act, did mislead. Id. The even were added)). benefits, (emphasis care Into this it, we to read a “knowingly” element into place Clip area of the law we would also supra p. still lacks the critical Rocky per Exxpress Mountain Motor defraud, materiality, injury intent to Inc., Bureau, 1240, 690 F.2d 1262 Tariff Indeed, pleaded guilty elements. Alvarez (9th Cir.1982) (holding that the First simply making to a knowingly false state protect Amendment does not deliberately government ment. The was not required misrepresenting facts to an administrative material, allege to that the statement was body anticompetitive for purposes).12 mislead, intended to critically, or most did Thus, falsity enough. alone is not Rather, mislead the listener. the record context must be well-defined. shows, anything, here if Alvarez has no addition, impersonation statutes are credibility whatsoever and that no one det narrowly apply per- drafted to to conduct rimentally relied on his false statement. obtain, formed order to at a cost to Although we believe that Congress could another, a benefit to which one is not revisit the Act modify properly it into a (“Whoever § entitled. See 18 U.S.C. 912 statute, tailored fraud permit we are not falsely pretends assumes or to be an offi- suggest done, ted to how it could be since employee acting cer or authority under the “ such would be a ‘serious invasion of the any department, the United States or ” Stevens, legislative domain.’ 130 S.Ct. at thereof, such, agency or officer and acts as (quoting United States v. Nat’l Trea pretended or in such character demands Union, sury Employees document, or money, paper, obtains n. value, thing or shall be fined under this (1995)). Accordingly, we cannot construe imprisoned title or not more than three falling the Act as within the historical added)). years, or (emphases both.” exception for anti-fraud Since Congress apparently intended the laws. fraud, Act to be used to stop comparing relatedly, Somewhat the Act criminal conduct is strikingly to fraud laws illustrates “merely Act’s infirmities. In a not immunized “properly tai- because the con- “[fjalse lored fraud action” initiated, statement alone in part evidenced, duct was or Clipper Exxpress supports cautionary constitutional value in false statements of 12. case, holding today. assertions, we reach In that we Contrary fact.” to defendants’ explained: simply there is no basis to hold that deliber- ately misrepresenting facts to an adminis- The first amendment has not been inter- body anticompetitive purposes trative for preted preclude liability for false state- enjoys protection. blanket first amendment example, defamatory ments. For state- 690 F.2d at Clipper 1261-62. We read Exx can be liability. ments made the for basis herein, press explain, as we have done imposes penal- 18 U.S.C. criminal although protected false factual is not knowingly wilfully concealing ties for for its own sake such that the misrepresenting or First Amend material facts before precludes any department prosecution, prohibit ment agency its laws or of the United ing uniformly punish target States. Courts it must perjury. nonetheless well-defined [Gertz, As the Court stated in subsets of like defamation or fraud or 2997], U.S. at clearly-defined "there is no other criminal conduct. language, Precedent makes clear that know by out means of either carried written, ing error is “to remove printed.” Giboney or factual insufficient spoken, Co., shield Storage & the constitutional from criticism of Ice Empire (1949). Sullivan, L.Ed. 834 official conduct.” Thus, historical laws focused on criminal conduct— Hence the rejection validity of Alien and or tax administrative fraud perjury like or Act, crime, “made pun no con- Sedition which it a impersonating or officer—raise $5,000 fine though years ishable and five concerns even can stitutional write, prison, any person print, ‘if shall speech. be violated means Unlike any false, ... laws, publish utter or scandalous uncontroversial criminal howev- such writing against or writings malicious er, criminal the speech the Act makes States, United any defining context regardless itself ..., Congress either house of the or the legitimate- targets us the law that assures intent President ... with to defame ly again, conduct.13 Here Alvarez criminal them, them, bring or either into prosecuted impersonating was contempt or disrepute; against or to excite officer, oath, or under military lying or them, them, any or either the hatred in order to making false statements unlaw- ” good people of the of the United States.’ was fully obtain benefits. There not even Id. at (quoting 84 S.Ct. 710 Sedi prove requirement government he 596). Thus, tion Act Stat. even prosecuted He was intended mislead. though knowing some false statements saying something that simply for was not may proscribed, proscription be can requiring element true. Without not be universal. conduct, to be related to criminal speech from the exception historical First Moreover, there can be no doubt that apply does Amendment not Act as affirmative there is constitutional value drafted. knowingly at least some false statements fact. entertainment such as Satirical

C Onion, Daily Show, The and The Col- sum, pertinent Report our review of making case law bert thrives on deliberate convinces us that historical and fact. tradi- false statements of Such media out- categories unprotected play significant inviting fac- lets role in citi- tional false speech only tual have thus far included zens alienated mainstream news media statements, factual into eco- meaningful public certain subsets false debate over nomic, carefully target military, political defined to behavior that is and social issues. fraudulent, However, if properly writings most characterized as even such satirical conduct, injurious not dangerous, not as shows did invite attention to and pure no speech. impor- We are aware of authori- comment about issues of “public tance,” ty holding may, anyone with a rudimen- would even law, Amendment through prohibit tary knowledge a criminal of First law seriously satirical, it simply knowingly factually argue because false frequently false. statements contained in such ("CT]he may unlikely anything protects it 13. While seem but First Amendment Government; egregious against of the Act it us the most violations would does not leave prosecuted, mercy oblige. we be do not determine the con- at the of noblesse We would uphold merely stitutionality assump- our Act based on an unconstitutional statute will, prosecutors promised it of how in their because the Government to use tions tion, discre- Stevens, responsibly.”). it. enforce See S.Ct. at are writing programming categorically IV protection? outside First Amendment See Before performing customary Sullivan, at 279 n. 376 U.S. analysis, however, we consid- (“Even a false statement be alternatively may perhaps er what deemed to make a valuable contribution to authority better for the view that the ma- debate, brings it ‘the public since about liciously stated factual speech false is his- perception impression clearer and livelier torically unprotected—not Gertz and the truth, its produced collision with unique universe of jurispru- defamation ” Mill, (quoting error.’ John Stuart On Lib dence, fraud, or the law of but Schenck v. (Oxford: 1947))). erty 15 Blackwell Fur States, suggested by United as Alvarez ther, it getting whether be method actors There, appeal. his Justice Holmes fa- character, being into satirists ironic or sar mously stringent noted most “[t]he castic, poets using hyperbole, or authors protection of free would pro- crafting story, persons creative often tect a man in falsely shouting fire in a make factual statements or assertions theater and causing panic.” which, aware, fully entirely are are 47, 52, (1919). 63 L.Ed. 470 knowingly untrue. Such creative uses of Although Schenck was concerned with se- highly protected. Mil speech, ditious particularly Cf instruc- California, ler v. here, given tive pres- the “clear and (requiring ob danger” ent emerged test from the “fire scenity apply statutes to only to works in a hypothetical, theater” which quin- whole, that “taken as a do not have serious tessentially about a false statement of artistic, literary, political, or scientific val fact. ue”). Generalizing from the “fire in a theater” Thus, speech false factual general as a hypothetical, Justice went on Holmes to not, category be, proscribed is and cannot hold that question every “[t]he case is under threat of prosecution. criminal Al- whether the words used are used such though certain subsets of false factual circumstances and are of a such nature as speech have been unprotected, declared to present create a clear and danger that speech such classes of developed were bring will about the substantive evils thoughtful the result of constitutional anal- Congress right has a prevent. to It is ysis of what other characteristics the question a of proximity degree.” and Id. speech added). must have before it can pro- be To the extent we are scribed without clashing with First even free to beyond look defamation and protections. The Act does general fraud for a more concerning rule fit neatly any into of those “well-de- prohibition of speech, false factual we “narrowly fined” and limited” of agree classes with Alvarez that the rule from speech previously unprotected, considered might Schenck supply helpful guideline a and we required apply thus are to the for defining the relevant of subset false highest scrutiny level of in our analysis. speech historically unprotected.14 present 14. The danger” “clear and upheld prosecution rule has the Court discourag- a long enlistment, being been insufficiently ing military criticized as accompanied by was protective However, strong of First Amendment purpose freedoms a dissent. our here when it only comes to seditious and requirements some other to articulate minimum Emerson, speech. forms of See Thomas I. that must be met before a false statement of Theory Toward a General the First Amend- fact can be removed from First Amendment of ment, (1963). protection Yale L.J. 910-12 existing precedents. In- under Some deed, itself, holding the of Schenck in which false statements of fact made with scienter rule, the as Alvarez Indeed, any appropriate more requirements Schenck’s do, be under circum- him speech urges agree uttered we with restricted us the likely proximate to be cause of stances Act for the reasons fails the test same the scope harm within of an imminent analogous Act is not to anti-defamation legitimate highly reach rele- Congress’ laws. factual speech classes

vant to the of Schenck, power As explained identified—defamation, already we have punish in- such fraud, to criminal con- speech integral and volves of “proximity careful consideration other histori- duct—and classes harm. degree” For the reasons unworthy of constitutional cally held to be substantially already supra in described See, protection. e.g., Brandenburg v. III.A, Part speech targeted Act Ohio, any pose irrepara- does not immediate and (1969) (“[T]he constitutional L.Ed.2d harm; ble harm cause can does free guarantees press of free Further, speech. more remedied forbid or permit pro- do not State to harm identifies—damage the Act force advocacy of the use of or of scribe reputation meaning military hon- advocacy except where such law violation ors—is not the sort harm we are con- inciting producing immi- directed Congress right vinced legitimate likely to action and is incite nent laioless prevent by restricting speech. means of (emphases such add- produce action.” Black, ed)); Virginia V 155 L.Ed.2d concluded that the Act does Having (permitting prohibition burnings of “cross categories fit within traditional intimidate” because done with the intent to from speech excluded First Amendment constitutionally pro- “[i]ntimidation it to protection, subject we must strict a type word is scribable sense scrutiny Indeed, review. threat, speaker true where directs narrowly limited [e]ven as to classes person [the ... with the threat to a intent of in bodily speech Chaplinsky noted ] victim harm be- placing the in fear added)); (emphases Chaplinsky, speech cause the line between uncondi- death” (“It a at S.Ct. 766 is tionally guaranteed speech and which narrowly and limited to statute drawn de- may legitimately regulated, sup- be punish specific lying and conduct with- fine pressed, punished finely drawn ... is power, the in a the domain state use power regulate the be so exer- to must likely to public place of cause a words not, in attaining permissible cised a as added)). peace.” (emphasis the breach end, protected unduly infringe to the words, In other the statute freedom!.] Schenck, then, might Following we artic- carefully must drawn or be authorita- be speech the class of false factual un- ulate tively punish only unpro- to construed protected by the First Amendment to be susceptible and not be tected factual which a that false creates application protected expression. to Be- of a harm present danger and Con- clear cause First Amendment freedoms need gress right Assuming prevent. survive, government danger” breathing space “clear and test is present case, might In such additional First likely to cause real harm none- 1213-14. protection, obviously theless deserve constitutional such scrutiny would re- speech targeted of malicious false sort quired. Act, pp. by the Alien Sedition infra only may regulate tary. Especially area with narrow at a time in which our specificity. nation engaged longest inwar its history, Congress interest, certainly has an Gooding, 405 U.S. 92 S.Ct. 1103 interest, (internal compelling even a in preserving quotation marks and citations omitted) added); integrity system of its honoring our (emphases see also Reno Union, 844, military men v. Am. Civil and women for Liberties their service (1997) and, times, their sacrifice. (explaining that the First Amendment re- However, government prov- has not quires targeting that statutes the content en here that the speech restriction is a of speech “preci- must be drafted with narrowly tailored means of achieving that sion”). always carefully The Court has noble interest. In Brown v. Hartlage, regulations considered the contours of pur- Supreme explained, Court porting target “unprotected” speech; Although the state in protecting interest here, being unconvinced the Act even tar- political process from distortions gets “unprotected” such speech, we are caused untrue and inaccurate even more obligation mindful of our [or, case, in this the state interest ensure the narrowly statute is drawn. protecting the integrity of our national scrutiny The strict standard of review is military system] decoration is somewhat familiar: must show that different from the pro- state interest narrowly the law is tailored to achieve a tecting individuals from defamatory fal- compelling governmental interest. Citi sehoods, the principles underlying the — Comm’n, zens United v. Fed. Election First Amendment paramount. remain — U.S.-, L.Ed.2d compatible Whenever with the underly- - (2010). A law is not narrowly tai stake, ing interests at under the regime lored speech-restrictive when less means of that depend Amendment “we for ... Reno, exist to achieve the interest. See correction not on the conscience of (holding judges juries but on the competition that although adult content unprotected of other ideas.” In political campaign, children, as to it is protected adults, as to a candidate’s factual blunder unlikely so a imposing law a “burden on adult of, to escape the notice and correction speech is unacceptable if less restrictive by, erring political candidate’s oppo- alternatives would be at least as effective nent. preferred First Amendment in achieving legitimate purpose that remedy of speech, “more not enforced serve”). the statute was enacted to Even silence,” thus special force. the dissent agrees that the Act fails strict scrutiny. Dissent at n. 10. 45, 61, 456 U.S. 71 L.Ed.2d (quoting 339- governmental

The asserted interest at and Whitney v. issue in the Act prevent is to “fraudulent Califor nia, claims” receipt honors, about of military (1927) (Brandéis, J., L.Ed. 1095 concur such causing claims “damage reputa- the ring)) (ellipses in original). Here, tion Alva meaning and of such decorations and lie, rez’s deliberate despicable medals.” Stolen and as it Valor Act of Pub.L. 109-437, 2(1), may been, No. have 3266; escape did not Stat. at notice and also 151 Cong. S12684-01, Rec. correction the marketplace. pre The S12688-99 (2005) (statement Conrad). of Sen. ferred remedy First Amendment of “more government argues that the speech” referenced in- thus repair any was available to important terest is motivating to our mili- Johnson, harm. See also (“ and is flowing from our servicemen women motivated danger ‘[N]o 109 S.Ct. 2533 by any way ... considerations whether present, and can be deemed dear may simply be awarded defies medal evil appre- unless the incidence is “unintentional- comprehension” and imminent that befall hended so profound to the sacrifices of ly insulting full opportunity for discus- before there is Act military personnel the Stolen Valor through expose If be time to sion. there purports to honor.” United States v. fallacies, to and discussion the falsehood 09-cr-00497-REB, No. Strandlof, by the edu- processes avert evil 2010). (D.Colo. Jul.16, Even WL 2802691 cation, remedy applied to more ” if we were to make the unfounded as- (quoting speech, not enforced silence.’ sumption troops perform that our their 377, 47 Whitney, S.Ct. 641 hope receiving riskiest missions J., (Brandéis, concurring))). Honor, there is the Medal of no evi- speculative it is to On this record best basis for as- dence—nor reasonable lies criminally-punishing conclude suming—that some false people’s claims to Congressionally having received about have received medal has demotivat- only way is the best and awarded medals ing on our men and women in impact integrity such medals— to ensure the uniform. all, just likely after it seems sum, honoring motivating and our meaning and of such medals is reputation troops important govern- are doubtless lie wholly by unaffected those who about interests, mental but fail to see we how having greatest them. The dam received necessary achieving to Act either aim. age reputations done to be seems we that the Act Accordingly, hold- is not pp. supra the liars See 1210- themselves. tailored to achieve a narrowly compelling Hinkson, 11; see also United States governmental presently interest. As (9th Cir.2010) (W. 1098, 1114 Fletch F.3d drafted, facially Act is invalid under er, J., dissenting from denial of en banc Amendment, the First and was unconstitu- rehearing) (arguing witness’ panel tionally to make a criminal out of a applied credibility impeached would have been had proven man to be nothing who was more having Purple lie his about received liar, than without more.15 Further, jury). exposed Heart been society no doubt that would be We have assuming general that there is harm even stop spreading if better off Alvarez would meaning military honors caused worthless, ridiculous, un- and offensive means imposters, numerous other exist But, given skepti- truths. our historical stopping to achieve the interest of such po- permitting cism of fraud, speech, or using such as more falsity, lice the line between truth actual redrafting target imper the Act drivel, we between valuable pp. See 1211-12. supra sonation or fraud. including protect speech, all presumptively statements, Further, clearly agree reasoning pro- we with the order may in the sug- tected flower shelter the District Court Colorado government The heroism of the First Amendment. gesting “that the battlefield of, Strandlof, v. emphasizes States Judge Bybee to tion we know United our failure 2802691, 09-cr-00497-REB, identify any applica- other unconstitutional WL 2010 No. course, identify we cannot favor, tions of the Act. Of with the dis- ended in the defendant's applications because Alvarez's other invalid holding trict the Act unconstitutional court prosecution brought is the first case under we substantially the do. same reasons prosecu- Act in current form. The second its 1218 categories—which to these the Court la- presumption

has not here rebutted sufficiently Act beled and traditional categories because the is not analo- “historic familiar permissible long restrictions to gous to traditional the bar”—“the First on speech. permitted false Amendment has restrictions upon Id. speech.” the content of at 1584

CONCLUSION omitted). (quotation marks Congress’s In praise- order to advance decades, than For six more Court worthy stop to fraudulent claims efforts recognized that “false statements of Congressionally about received au- having belong category fact ... to th[e] utter honors, military thorized part any ances which ‘are no essential would extend inapposite have us case law ideas, exposition slight and are such unprecedented exception to create an truth step any social value as a guarantees. First We decline benefit that be derived from them is course, hold follow such clearly outweighed by the social interest ” Act would lacks the elements that make it order v. morality.’ Gertz Robert analogous the other on restrictions false Welch, Inc., 323, 340, 418 U.S. 94 S.Ct. speech previously proscribable held to be (1974) 2997, 41 (quoting L.Ed.2d 789 Chap problem. without constitutional Accord- 568, linsky v. Hampshire, New 315 U.S. ingly, is not narrowly we hold the Act 572, (1942)). 766, 62 S.Ct. 86 L.Ed. 1031 governmen- drawn a compelling to achieve plain The Court has stated as as words interest, tal and is unconstitutional. permit that “the erroneous statement of REVERSED. case is REMANDED worthy protection.” fact is not of constitutional proceedings to the district court for consis- .; Id see also BE K& Constr. Co. v. opinion. tent with this N.L.R.B., 531, 516, 122 S.Ct. (2002) (“[FJalse L.Ed.2d 153 499 BYBEE, Judge, dissenting: Circuit unprotected for statements their own [are] Alvarez, public Xavier a California offi- sake.”); Falwell, Hustler v. Magazine 485 cial, a public meeting stood in and an- 46, 52, U.S. 99 L.Ed.2d 41 Marine, he nounced that was a retired (1988) (“False of fact par statements veteran, recipient wounded and the valueless; ticularly they interfere with the Congressional Medal of Honor. Alvarez truth-seeking marketplace function of the pleaded was all lying guilty on counts. He ”); of ideas .... Maga Keeton v. Hustler to violating the Stolen Act of Valor 2005 zine, Inc., 770, 776, (“Act”), punishes person which who (false (1984) state “falsely herself, represents himself or ver- ments of fact have “no constitutional val bally writing, or in been to have awarded ue” subject because “harm both decoration medal authorized of the falsehood and the readers of the Congress for the Armed Forces of the omitted)); (quotation statement” marks 704(b). United States.” 18 U.S.C. He Rests., N.L.R.B., Bill Inc. Johnson’s v. now his conviction on challenges L.Ed.2d Amendment grounds. (“[F]alse statements are not by the First Amendment right immunized its recent decision in United States v. — Stevens, Lando, U.S.-, speech.”); to freedom of Herbert L.Ed.2d 435 Court (1979) (“Spreading L.Ed.2d 115 “categories

reminded us there are infor fully protection ... outside mation in and of itself carries no the First credentials.”). the First Amendment.” at 1586. Amendment False Id. As state-

1219 the First I would hold that Act is constitution- unprotected the ments the applied limited con- al as to Alvarez and that Act is except in a set of Amendment unconstitutionally protection necessary such not overbroad. Because texts where matters,” majority the has rewritten protect speech that established “to 2997, law, respectfully 94 as First Amendment I dis- at S.Ct. such 418 U.S. official conduct “expression critical of the sent. officials,” v. New York Times Co. public I

Sullivan, 254, 268, U.S. S.Ct. to (1964). turning as-applied Before Alvarez’s And even in these 11 L.Ed.2d 686 challenges majority’s facial and the contexts, and false special knowingly “the with to respect particular errors the ele- the made and false statement statement case, truth, going begin I am to disregard not ments do with reckless protection.” by discussing the First Amendment enjoy Garrison constitutional Louisiana, 64, 75, the Supreme 379 U.S. framework under which v. S.Ct. added). (1964) analyzes fact, (emphasis false statements of 13 L.Ed.2d Court general which involves a rule and series clarity consistency of Despite the and exceptions. why I then explain I think insistence that false Court’s and, majority has misread the cases (or statements”) of fact “false statements process, exceptions in the turned the into fall outside First Amendment generally rule exception. the rule and the into an manages majority somehow protection, holding that false authority to “find no A speech, general category as a unto factual states, First Amendment relevant itself, historically unprotect among [the part: “Congress shall make no law ... Maj. Op. speech],” at ed classes ” abridging freedom of speech.... U.S. added), concludes that “we and Const, matter, I. a general amend. “As protect ... state presumptively First Amendment means ments,” majority at 1217. The then id. power expression has no to restrict be faulty principle moves from this to an even ideas, message, subject of its its cause its repeating more remarkable one: after “ matter, or content.” v. its United States ‘the statement Court’s Garrison — Stevens, -, ... knoivingly false statement do[es] ” (alteration 1584, 176 L.Ed.2d protection,’ Maj. enjoy Op. constitutional omitted) quotation (quoting and marks (alteration ellipsis original) at 1207 ACLU, 564, 573, v. 535 U.S. Ashcroft Garrison, (quoting (2002)). A 152 L.Ed.2d 771 209), majority that Alvarez’s holds restriction constitutional content-based knoivingly false statement of fact is enti ly protected speech only “can stand if it protection, to tled constitutional full scrutiny,” v. satisfies strict United States to “required therefore that the court is Inc., Playboy Group, Ent. apply highest scrutiny level of [its] 813, 120 Act, 37; analysis” of the id. see also id. necessary meaning it “is (“[R]egulations at 3 of false factual interest compelling serve state subjected scruti must strict end,” narrowly it is drawn achieve that ny....”). Standing startling these on Perry Perry Edu Educ. Ass’n Local final premises, delivers its Ass’n, cators’ scrutiny fails and is blow: the Act strict (1983). 948, 74 L.Ed.2d 794 only as applied thus unconstitutional not Alvarez, applications. in all its id. But all is entitled to but See Rather, protection. “[t]here 45-46.

1220 2390, (2002) (“[F]alse narrowly and lim- are certain well-defined 153 499 L.Ed.2d prevention classes the speech, unprotected ited of and statements for their own [are] sake.”); Falwell, has never punishment Magazine of which been v. 485 Hustler 46, 52, 876, Constitutional thought any prob- to raise U.S. S.Ct. 108 99 L.Ed.2d 41 (1988) (“False because “such utterances are no es- par lem” statements of fact are ideas, valueless; part any exposition ticularly they and sential interfere with the slight of such value as a step truth-seeking are social marketplace function of the may ”); benefit be derived of ideas.... Maga truth Keeton v. Hustler zine, Inc., clearly outweighed by 770, 776, them is from 465 U.S. 104 S.Ct. 1473, (1984) (false morality.” interest order and 79 social L.Ed.2d 790 state Chaplinsky Hampshire, v. New 315 U.S. ments of fact have “no val constitutional 568, 571-72, 766, subject 62 S.Ct. 86 L.Ed. ue” 1031 because “harm both the (1942). among Included these “classes of falsehood and the readers of the defamation, speech” “obscenity, fraud, omitted)); are (quotation statement” marks incitement, Rest., speech integral N.L.R.B., to criminal Bill Johnson’s Inc. v. 461 Stevens, (cita- 731, 743, 2161, conduct.” 130 S.Ct. at 1584 U.S. 103 76 L.Ed.2d (1983) omitted); (“[F]alse Chaplinsky, tions see also 277 315 statements are 572, 766. U.S. 62 S.Ct. by right immunized First Amendment Lando, speech.”); freedom of Herbert v. a class of speech “Defamation” as falls 153, 171, 60 unprotected category within (1979) L.Ed.2d (“Spreading infor false that the Court has referred to as “false mation in and of itself carries no First of fact.” statements Gertz v. Robert credentials.”); see also Cox Welch, Inc., 323, 340, 94 S.Ct. Cohn, Corp. Broad. 499 n. U.S. (1974). 41 L.Ed.2d 789 95 S.Ct. explained Court the difference between (Powell, J., (“[T]he concurring) First false fact and statements of false ideas: pro Amendment affords no constitutional “Under the First Amendment there is no fact.”). tection for false statements of Be thing such as false idea. But there cause enjoy false statements of fact do not is no constitutional value false state- protection Amendment, ments of fact.” Id. may such ordinarily statements regulat It then held “the erroneous ed government. Congress, for ex worthy statement of fact is not of constitu- ample, provided penalties criminal protection.” tional Id. at any number of false statements of fact 2997. The Court has regularly variety See, uttered e.g., contexts. repeated, both inside and outside of the (“Fraud I, pt. passim 18 U.S.C. ch. context, defamation that false statements statements”). fact generally valueless and protection Thus, within the of the First general Amend- rule is that false state- See, ment. BE & K e.g., Constr. protected Co. v. ments of fact are not by the N.L.R.B., however, is, 122 S.Ct. First There Amendment.1 majority disagrees my 1. The gress with abridging character- shall make no law ... ” principle “general Maj. ization s as a speech.' Op. (ellip rule” freedom of Gertz Sullivan, and of New original) York Times Co. v. (quoting sis in U.S. CONST. amend. I). Thus, continues, 11 L.Ed.2d “[a]ny rule progeny “exceptions.’’ protected its certain is not majority argues principle exception, “[t]he fundamental rule foundational is the which subject is found in the exceptions First Amendment itself: ‘Con- in turn be to other

1221 (ellipsis 279, 710 271-72, 84 S.Ct. IcL at principle: to this exception important omitted). against such protect In order to is nec- false statement protecting where “a adopted the Court “self-censorship,” that speech protect to “in order essary official public prohibits that rule federal 341, 94 Gertz, at S.Ct. 418 U.S. matters.” defamatory damages for recovering from 531, K, at 536 2997; BE & also conduct official relating to his falsehood (“[W]hile false statements 2390 122 S.Ct. was the statement that proves he unless sake, own for their unprotected may be is, with malice’—that ‘actual made with that requires we Amendment First ‘[t]he reck or with it was false knowledge that protect to in order falsehood protect some ” it was false disregard whether of less omitted) (emphasis matters.’ that 279-80, 710. The 84 S.Ct. Id. at not.” (quoting original) (second alteration York Times the New extended has Court 2997)). 341, Gertz, at 94 S.Ct. “public figures” rule to malice” “actual Sullivan, 376 U.S. v. Times Co. New York officials,” Cur “public if are not even (1964), 686 710, 11 L.Ed.2d 254, S.Ct. 84 Butts, 388 U.S. v. Publ’g Co. tis area, the Court in this case the seminal 1094 but 1975, L.Ed.2d 18 87 protec- Amendment limited First extended Neto York the to extend “refus[ed] has “critical statements tion to libelous private of to defamation privilege Times Id. public of officials.” conduct official to matters individuals,” respect with even “erroneous 710. Because 268, 84 S.Ct. Gertz, concern, public of debate, free is inevitable statement 2997.2 of if the freedoms protected ... must be forth in set ‘breathing principle the with have the Consistent are to expression ” held, survive,’ Times, the the Court Garri to New York they ‘need space’ that Louisiana, offi- public son permitting Court feared (1964), that “the their crit- L.Ed.2d against tort claims bring to cials false and the statement knowingly of fact statement on a false ics based ” of disregard reckless made with ’self-censorship,’ statement de- “lead[ ] would pro truth, enjoy constitutional do voicing their “from critics terring such (emphasis Id. to be tection.” though is believed even ] criticism! (“Calculated false- added); id. see also fact is in true.” though it even true and usage.... The ordinary 'speech’ in swallowing as scribed exceptions against such protect understood never been has Amendment Id. the rule.” communication.” protect all oral the con- majority misunderstood Thus, added)). afforded protection lack of true, speech. It is unprotected cept of of an no more of fact is false statements states, presumptively "we than to the First Amendment "exception” government inter- against protect all protection afforded lack does not First Amendment Id. The ference.” trigger. of these gun Neither pulling of a "the freedom "speech” but rather protect all part "the freedom is considered activities those cate- not include speech,” which does be characterized should speech,” so neither traditionally considered out- gories of the First Amendment. exception to as an protection. See First Amendment side of Stevens, Speech, The Freedom John Paul "allow[ed] Although the Court 2. Gertz ("I empha- L.J. 102 YALE publisher or liability impose on States term 'the 'the' as used in word size the defamatory a less on falsehood broadcaster the definite article speech’ because freedom required showing than that demanding to im- intended suggests that draftsmen Times," dam- held that the Court York New category or sub- previously munize identified "compensation for actual ages are limited category not have could speech. That set of injury.” category of oral with been coextensive commonly de- communications (9th Cir.2005) (stating hood falls class of utterances F.3d into part any exposi- of First protects which ‘are no essential Amendment “[t]he state- that (quoting Chaplinsky, reasonably tion of ments cannot ideas inter- [be] 766)). Gertz, 572, In 62 as preted stating 315 at S.Ct. actual facts U.S. about an knowing reality that lies are “the Court confirmed individual” because of that ex- aggeration commentary excluded limited First Amend- and nonliteral from York protection integral part ment Neiu Times estab- have become an of social omitted) (sec- (quotation of “[T]he lished for false statements fact: discourse” marks sense, materially [does intentional ond alteration in In original)). not] lie a ‘uninhibited, society’s interest ] Court established “lies” made advance! robust, on wide-open’ public debate in the context imaginative of satire and Gertz, 340, 418 at 94 expression really issues.” U.S. S.Ct. are not lies at all and Times, 2997 New York 376 (quoting perhaps really U.S. even of statements 710). 270, “fact,” at Although Garrison because no reasonable listener defamation, actually stating and Gertz both involved them could believe to be Supreme and our court have extend- Court actual facts. beyond ed Garrison’s rule the defamation sum, In Court’s jurispru

context, be in Part as will discussed I.B.2. on dence false statements fact involves however, is, an important general There caveat rule exceptions with certain that knowingly state- principle false In exceptions-to-exceptions. general, ments of fact are not entitled constitu- is “there no constitutional value in false Maj. tional protection. Op. fact,” See at 1213-14. statements of and so “the erroneous recognized The Court has worthy some state- statement of fact is not of constitu that, read, literally ments technically protection.” 340, tional “knowingly However, than false” “no more 94 2997. general S.Ct. prin hyperbole,” subject rhetorical Coop. ciple Greenbelt to certain limited excep Bresler, 6, 14, Publ’g Ass’n v. 398 90 protection U.S. tions where First Amendment 1537, (1970), “lusty necessary S.Ct. or protect speech “to that mat ters,” and imaginative expression,” 2997, Ass’n Nat’l id. at Carriers, Austin, Letter v. AFL-CIO 418 ensure that of expression “freedoms U.S. S.Ct. ‘breathing 94 41 L.Ed.2d ... have the space’ they ” (1974), survive,’ 745 as Times, such satire or fiction. ‘need York New 376 Hustler, (alteration the Supreme Court at held U.S. 84 710 S.Ct. omitted). protects defamatory Accordingly, defamatory false public statements figure about “that statement of about public fig fact made reasonably could interpret- have protected been ure constitutionally if it is ed stating public as actual facts “knowledge about the without made it was false figure 485 at involved.” U.S. or disregard with reckless whether 876. And in Milkovich Journal Lorain was false not.” Id. at 84 S.Ct. 710. Co., 497 110 hand, S.Ct. knowingly On the other “the false L.Ed.2d the Court clarified that statement and the false statement made protection such “provides truth, assurance that with disregard reckless do not public debate not suffer lack of enjoy will protection.” constitutional Garri son, imaginative expression only the rhetorical at 85 S.Ct. 209. The hyperbole traditionally which has added qualifier this rule is that statements much to the discourse of our Id. technically “knowingly Nation.” that are false” re (quotation marks ceive constitutional protection when omitted); ESPN, see also Knievel v. reasonably interpret- have been “c[an]not Hustler, fac- categories unprotected tional actual facts.” stating ed only have thus far included 50, 108 tual certain subsets of false factual statements B ”); (finding only .... “cer- id. pronounce- Court’s Notwithstanding tain of false factual have subsets of false unprotected status and that unprotected,” ments on been declared fact, no into neatly “fínd[s] Act does not fit statements “[t]he classes”). speech, words, factual authority holding that false In other those ... itself, among unto general category majority general as a limits the rule to its ex- view, classes of historically unprotected my majority ceptions. In [the concludes Maj. Op. at and speech],” wrong for a number of reasons. protect presumptively

that “we statements,” majority at The id. 1217. that, Supreme matter, when the Court majority’s prin- believes general As of fact” are has said that “false statements I ciple reasoning rests on a line of Amendment, by the First unprotected jurisprudence that our cannot endorse: actually meant was that what the Court Supreme on what we think the should rest by the First unprotected actually than what it Court “means” rather defamation (“[W]e be- thus, id. at 1208 Amendment. See says, Supreme because the Court category unprotect- of lieve the historical says means “defamation” when “false and related fact,” ed identified Gertz only repre- the former statements defamation, speech.”). not all factual category speech. law is an unprotected sents refusing and after premise, majority From this The even considers it “errone- unprotected category “rel[y] on for “extend” for me to Gertz its ous[ ]” (defamation) to false statements statement that false factual is val- majority at sug- unprotected.” ueless and Id. generally, id. of fact are

gests that false statements I respect, all due believe reli- With constitutional generally entitled (and full ance on statement the Court’s Gertz’s they knowingly if are protection, even numerous other statements to the same false, they defamatory, are fraudu- unless effect) only far from “erroneous[ ]” is not conduct, lent, integral to criminal see do not have the au- obligatory. but We id. 1211-13. thority court to limit the Court’s lower they effectively to what we believe mean The overruled statements they actually say. than what Gertz and inverted the whole scheme. rather Gertz have used the terms “defamation” or Supreme The has told us consistent- could Court that false state- “libel” rather than “false statements ly general rule is unprotected category fact” to unprotected, fact are and has describe ments of what these exceptions speech—it presumably knew carved out certain limited The ma- terms mean—but it did not. Because this certain contexts. principle unambiguously has told us sug- this framework around and Court jority flips generally fact” are fact are “false statements of gests gen- that false statements of Amendment, the First this erally unprotected only unprotected contexts like fraud, starting point be the principle and that outside should defamation and majori- analysis, point not the for the they fully protected. are our these contexts (“[T]he principle.3 ty’s departure tradi- from the at 1213 historical and See id. (2003), L.Ed.2d 580 majority’s Stevens’s

3. The reliance on Justice 1202-03, Nike, gives away in- Maj. Op. at its true Kasky, 539 U.S. opinion in Inc. v. clearly in question the statement had been malice, uttered with actual the statement authority limit the if had the Even we unprotected irrespective would be to what we statements Supreme Court’s applied. whether New York Times they rather than what think mean (and Time, Hill, Inc. v. actually say, Supreme Court did does) of fact” for exam mean that “false statements (non- ple, and that the Court held that an award of dam generally unprotected non-theatrical) knowingly ages “right privacy” New under York’s satirical always unpro- “allegations fact are law based on that[defendant] false statements of falsely reported play portrayed Ninth that a new Supreme precedent, tected. Court precedent, logic compel experience [plaintiff],” suffered id. Circuit could not sus conclusion. “proof tained without the defendant Court has used the same published report knowledge the with of its analyzing for false statements framework falsity in disregard reckless involving of fact in cases neither defama- truth,” 388, at id. 87 S.Ct. 534. After tion nor as it did in New York fraud analysis, “through careful rather than Times, Garrison, Gertz; these cases Times,” application blind of New York id. that demonstrate the Court’s statements 390, 534, at 87 S.Ct. the Court concluded regarding general unprotected the nature against that “sanctions either innocent or of “false statements of fact” and its even negligent present misstatement would regarding more conclusive statements grave discouraging press hazard of the knowingly of fact apply false statements exercising guarantees,” from constitutional cases outside the context. defamation/fraud 389, time, at id. 87 S.Ct. 534. At the same In involving these cases neither defama- stress, the Court was careful relying on fraud, began tion nor the Court with the “ Garrison, use of calculated ‘[t]he premise that false statements of fact are ... put falsehood would a different cast on unprotected, analysis entire and its was ” question.’ 390, the constitutional Id. at deciding ap- directed toward whether the added) (emphasis (quoting S.Ct. 534 Garri plication of New York Times’s “actual mal- son, 209). 75, 85 S.Ct. necessary ice” standard was in that case to Court declared that “the constitutional protect speech Although that matters. the guarantees can against tolerate sanctions Court at times decided that the non-defa- significant calculated falsehood without im mation case before it was such case pairment of their essential function.” Id. where New York Times’s “actual stan- 389, 209; 390, at 85 S.Ct. see also id. at necessary, dard” was it was careful (“What S.Ct. 209 we in said Garrison Garrison, emphasize, consistent with equally applicable (emphasis [here].” false statements made with actual malice added)). fall protec- outside of First Amendment words, Education, tion. only Pickering other reason that And in v. Board of there was even need for discussion was 88 S.Ct. L.Ed.2d 811 question because the statement in was ar- applied the Court the New York malice”; guably made “actual if without Times framework to a case involving a case, overbroad[]).” "(perhaps tentions. In that Justice Stevens con- Id. at grant stopped curred in the Court’s dismissal S.Ct. 2554. Justice Stevens far short and, overruled, parenthetical, suggested suggesting certiorari in a should Gertz implication statement that there is no consti- but that is takes Gertz's away. tutional in value false statements of fact was speech. tected See 315 U.S. at that his First Amend- claimed teacher who among unprotect- (including he was S.Ct. 766 violated when rights ment were speech” “classes of “the lewd and ob- sending newspa- to a local ed for terminated libelous, scene, profane, the and the containing false statements per a letter insulting ‘fighting’ words” superintendent. of the district fact critical added)). Then, the Court used 1731. As id. at See Time, from the broader term “false statements of fact” Pickering started the Court category. of fact this 418 U.S. that false statements describe premise K, 2997; see also BE only question was 94 S.Ct. & unprotected, and the Hustler, 2390; dealing the context it was with whether Because most of the enough to defamation to merit 108 S.Ct. 876. was similar historically opinions unpro- “actu- Court’s application of New York Times’s have dealt with defama- category id. at tected al malice” rule. See tion, po- and because the Court has used both The Court concluded the terms “defamation” and “false state- self-censorship was sufficient to tential for of fact” to s “actual malice” ments describe within warrant New York Times’ unprotected category, nothing that the ex- there is but made clear requirement, interesting about use of the term protection was limit- Stevens’s tent of constitutional this, truly If proof “defamation.” Stevens stands a case such as absent “[I]n ed: recklessly proposition only defamatory state- knowingly or of false statements him, not false statements of fact a teacher’s exercise of his ments—and by made impor- generally—constitute unprotected cat- speak public on issues of right egory, for his then Stevens overruled sub silentio may not furnish the basis tance every Supreme using gen-' Court case public employment.” from Id. dismissal omitted).4 added) (footnote term “false statements of fact” and eral (emphasis every applying case the New York Times- in in the recent decision Nothing Court’s framework outside of the Gertz-Garrison contrary. The is to the Stevens I find this hard to defamation context. that, the Stevens Court “[s]ince believes believe. specifically, name defamation saw fit to why demonstrate gener- of fact Similar considerations rather than false statements relying upon in majority misguided is category historical excluded ally, as the “ decisions ‘[o]ur the his- Stevens’s statement protection, constitutional from be taken as [following Chaplinsky cannot category unprotected ] of torical freewheeling authority establishing law is defa- in and related identified Gertz mation, categories new of outside speech.” Maj. Op. all factual declare ” Maj. scope of the First Amendment.’ But use of the word at 1223. Stevens’s (second original) in Op. As far back at 1209 alteration nothing new. “defamation” Stevens, 1586); 130 S.Ct. at frequently (quoting Chaplinsky, Court (“Unlike dissenting our and “libel” to also id. 1207-08 the words “defamation” used eager to extend a unpro- colleague, we are not categories one of the of describe Gertz, ...(citing 418 U.S. at 94 S.Ct. Although Bill did not BE & K and Johnsons Johnson's, 2997)); per but rath- Bill involve the freedom of se (“Just are not right petition, S.Ct. 2161 as false statements Amendment er the First right by Amendment examples immunized the First are further these decisions speech, litigation baseless is not principle outside freedom reliance on s Court's Gertz K, by right to the First Amendment BE & 536 immunized the defamation context. See (citations omitted) ("[F]alse (citing petition.'’ state- U.S. at 2997)). unprotected own sake for their [are] ments (often quali- adopt often that a court should stan- quoted, statement but stricter fied) complicated proof,” in area of defa- dard of but we made determined unprotected into a new con- defendants’ statements were jurisprudence mation ...”). potential regardless proof of the correct text. Stevens involved the standard of truly category falsity of a “new” of un- “defendants creation because knew the protected speech: “depictions of animal (emphases their statements.” Id. added). case, cruelty.” words, at 1584. This In other the defendants’ contrast, preexisting category involves knowledge falsity of the of their state- unprotected speech: false statements of placed ments the defendants’ statements Thus, “expansion” fact. no of First clearly outside the First Amendment. jurisprudence necessary to Thus, Pickering, unlike in Time and there hold that Alvarez’s false statements are was no need for further discussion of protected. whether the New York “actual Times mal- requirement ice” applied. See id. own are in

Our cases accord with the (not fact principle that false statements of recently, More Capital Hoffman just defamatory or fraudulent false state- Cities/ABC, Inc., (9th 255 F.3d 1180 Cir. ments) generally unprotected 2001), we applied the New York Times Amendment, although we have rec- framework plaintiff to a case which the ognized that protection “constitutional claimed that his common right pub law afforded some false statements.” Johnson licity had been violated the defendant’s (9th County, v. Multnomah 48 F.3d 420 publication photograph of an altered of the Cir.1995) added). We have of- likeness, plaintiffs name and see id. at applied ten the New York Times-Garri- 1183,which impression “create[d] son-Gertz framework outside defa- public the minds of the were mation and fraud context. seeing plaintiffs] body,” [the id. at 1186 omitted). (quotation marks Clipper Exxpress Rocky Regarding the Mountain Bureau, Inc., defense, defendant’s First Motor 690 F.2d Amendment we Tariff (9th Cir.1982), question determined that example, for we held that the was whether “[tjhere protection correctly is no first amendment the district court held that the furnishing predatory protect with intent false First Amendment did not the de adjudi- information to an administrative or publication fendant’s because the defen catory body,” “published and thus the First Amend- dant that image knowing it was ment did not the shield defendants from false and that intending the readers be 1261; liability. antitrust Id. at see also id. lieve the falsehood.” Id. add (“The ed). first amendment has not been inter- Although eventually we concluded preted preclude liability for false state- that the finding district court erred in that existed, ments .... ‘[T]here is no constitutional val- “actual malice” id. at ” ue in false statements (quoting important point of fact.’ that finding is a of knowl Gertz, 2997)). edge falsity as to We would have meant that “recogniz[ed] that under certain circum- publication the defendant’s was not pro allowing imposition Amendment, stances liability tected the First irrespec debate, hamper for statements can purported tive of the fact that the false Times,” New York which “may suggest defamatory hood was not or fraudulent.5 majority persuaded 5. The arguably is "not ments in were more like Hoff- Hoffman anything man ... is more than variation on defamation than false statements in Alva- jurisprudence." Maj. Op. defamation case, rez’s and similar cases never- Hoffman although 1208-09 n. 10. But the false state- majority might view, premise, Based on this Supreme majority’s Under the New Pickering, applied the Court in Time assert decisions Court’s Exxpress framework in Clipper our decisions York Times-Garrisonr-Gertz if not over- disapproved, Time, are all Hoffman, Pickering, Clipper Exxpress, and prece- these putting aside But even ruled. the false statements because Hoffman majority’s dents, I do not believe likely cogniza- to cause a those cases were that the Court logical. principle is Given harm, pun- but the false statements ble as one recognized defamation clearly has fully by the Valor Act are ished Stolen protect- where exceptional situations these statements do not protected because necessary to false statements is ing certain what the con- generally produce matters,” “protect speech id. at to be a “bona fide harm.” See siders 2997, I cannot see respectfully disagree. 1212 n. 12.1 “defamation” could have meant how Gertz of fact” that “false statements

when said true, If that were there unprotected. harm” The likelihood of a “bona fide has statement nothing left of Gertz’s would be nothing category to do with whether fall outside of of fact that false statements speech protection. loses First Amendment In other protection. First Amendment rejected the notion that the First Stevens words, majority interprets Gertz protection afforded a class of Amendment unprotected is following way: defamation depends on a consideration of the speech Amendment, it is neces- the First but speech. of the class of “societal costs” in order to defamation sary protect Rather, category whether a S.Ct. at 1585. that matters. Under the protect constitutionally protected internally incon- majority’s logic, Gertz on wheth- question depends historical sistent, exception has swallowed and the traditionally been er a class of rule. up the of low thought to be Supreme As the Court reiterated value. in Stevens-. it is clear that Although I believe present, the First From 1791 to regarding statements Court’s restrictions permitted Amendment has fact extend outside of false statements of speech in a few upon the content of context, I fraud never- the defamation and areas, include[d] and has never limited necessary respond to the find it theless disregard these traditional freedom fide harm” majority’s misguided “bona and tradi- These historic limitations. majority asserts that the Su- theory. The long familiar to the bar categories tional the New York Court has extended preme narrowly limit- well-defined and only to framework Times-Gamson-Gertz speech, prevention of ed classes “likely to cause a bona statements false which has never been punishment of harm,” that constitute such as those fide any prob- thought to raise Constitutional words, Maj. at 1211. other Op. fraud. lem. state- majority suggests that added) (emphases (quotation Id. at 1584 protection First Amendment ment loses omitted) (alteration in marks and citations likely cognizable—(cid:127) to cause a only if it is that (noting at 1586 original); 1207. see also id. indeed, Id. at “irreparable”'—-harm. historically unprotected cate- represents that statements of demonstrate “false theless fact," statements gory speech, fact” means the latter. “false “defamation,” the former simply and that ably interpreted stating First Amendment cases re- have been actu- the Court’s Hustler, facts,” outside First Amendment garding speech al at U.S. analysis “grounded[their] have

protection Supreme The fact that the Court has recognized, long-estab- previously in a protection extended limited constitutional unprotected speech” category lished to some false statements of fact in defama- added)); Chaplinsky, (emphasis tion and defamation-like cases and that (describing unprotect- 62 S.Ct. 766 generally cognizable these cases involve a speech as “utterances [that] ed classes harm a particular party does not dem- any part exposition are no essential a cognizable pre- onstrate that harm is a ideas, slight are of such social value requisite before a false statement of fact step as a to truth benefit protection. loses its First Amendment clearly may be derived from them out- Rather, spheres protection carved weighed by the social interest in order Times, Hustler, out in New York and like added)). morality” (emphases Once represent exceptions cases limited to the again, decades of Court case law general rule false statements of fact clear that false statements of fact make Amendment, protected by are not the First are one of those classes of that are irrespective of a cognizable spe- harm to a generally considered to be of low First Keeton, person. cific See Amendment value and therefore have tra- (false statements of fact ditionally fallen outside First Amendment have “no constitutional value” because protection. subject “harm both the of the falsehood agree I with the (first and the readers of the statement” regard Court’s statements cannot added) emphasis (quotation marks omit- interpreted proposition^],” be as “absolute ted)). If a false fact statement of does not Maj. Op. at because the Court exceptions, fall within one of these it falls that, although has established “false state within general historically unprotected unprotected ments for their own category speech, and the absence of sake,” K, BE & 536 U.S. at “harm” is irrelevant. “requires the Constitution that we protect protect some falsehood order to b matters,” obscenity jurisprudence The Court’s added). 94 S.Ct. 2997 But majority’s an embarrassment newly- protection the Court has afforded “harm” requirement. minted The Court “some falsehood” has been limited to nar held that long obscene is not historically unpro row subsets within the protected by Amendment, the First category—certain tected false statements Chaplinsky, 315 U.S. at public figures of fact critical of if made “utterly redeeming because without “knowledge that[they without are] false or States, importance,” social Roth v. United disregard [they with reckless of whether 476, 1304, 484, 354 U.S. 77 1 S.Ct. L.Ed.2d not,” Times, false or are] New York 376 (1957), and 1498 not because the states 280, 710; at 84 U.S. certain false “proof have some of harm” satisfied re- statements of fact in contexts similar to quirement. California, In Miller v. 413 defamation, public such as intrusions on a 15, 2607, U.S. 93 S.Ct. Time, figure’s privacy, see at 376- (1973), Court defined works 87 S.Ct. and criticisms of that are and therefore fall “obscene” out- superior, Pickering, one’s see 391 572-74, 1731; protection side the of the First Amend- and certain false ment, notably statements of fact that reason- and “bona fide harm” is “cfannot] scenity generally targeted laws are under its defini- requirement aas absent harm, cognizable they explic- do not some The Court stated: tion. that even itly require scope permissible confine the now [W]e prove, cognizable a identify, much less which [obscenity] regulation to works Indeed, it every harm in case. was of no That sexual conduct. depict or describe to the that “there no [wa]s concern Court defined specifically must be conduct a law, proof conclusive connection between written or state applicable material,” and obscene A of- antisocial behavior state authoritatively construed. “[n]othing pro- in the Constitution to works also be limited because fense must whole, reaching from such a conclu- which, appeal hibits State taken as sex, portray acting legislatively simply which and on it interest sion prurient offensive evidence patently conduct in a there no conclusive [wa]s sexual because whole, which, do not taken as data.” Paris Adult Theatre I way, empirical and artistic, Slaton, 49, 60-61, 63, literary, political, have serious v. (1973). Thus,

or scientific value. 37 L.Ed.2d obscenity jurisprudence Court’s demon- (foot- Miller, 24, 93 S.Ct. 2607 requirement simply that a “harm” strates omitted). note protection in terms of the does not exist course, obscenity say, of that might We category speech. afforded a harmful, obscenity has or that generally thought to be harmful traditionally been c obscenity represent given regulations that majority places great weight The on the that legislative determination obscene decision in Court’s Schenck United degrade our morals or generally materials States, 63 L.Ed. public safety. majority But the endanger famously which the Court holds the Stolen Act unconstitutional Valor question every that case is “[t]he held require proof that because does whether the words used are used such causes harm. While particular statement and are of such a nature as circumstances acknowledging Congress’s finding present danger to create a clear and “damage the false claims like Alvarez’s bring will about the substantive evils reputation meaning [military] deco- right prevent.” has a Id. Congress medals,” Act Valor rations and Stolen 247. The even 109-437, 2(1), Pub.L. No. Stat. dan- suggests present that the “clear and (2005) (the Maj. Op. at “Findings”); ger” defining rule is the test “for the rele- majority emphasizes that the of false that is histori- vant subset actually applica- limit the Findings “do 1214; cally unprotected.” Maj. Op. at Act” is no tion of the because “[t]here Schenck, (“Following at 1215 also id. govern- in the Act that requirement factu- might we articulate the class false prove ment bear the burden unprotected by al the First Amend- speech writing proximately defendant’s factual which ment to be reputation damage caused present danger of a creates a clear meaning military decorations and med- (second Congress right prevent.”). harm has a als,” Maj. emphasis Op. at added).6 majority wrong. The The Court has present danger” “clear and true of never used the problem is that this is ob- well; category whether a of although ob- test to determine scenity regulations point Part II.C. 6. I return to this in

1230 question depends speech first instance. on whether the protected speech is historically has been considered of low contrary, spe Court Much Rather, First Amendment value. cifically that the existence of “clear held question in those cases was whether the danger” of harm is irrelevant present and government’s preventing interest law- categories of unprotected in the context of is, in preventing less action—that Illinois, In Beauharnais v. 343 speech. by harm potentially produced protected (1952), 72 96 L.Ed. 919 S.Ct. speech—was sufficient to overcome the stated: Court particular First Amendment interests in a being Libelous utterances not within the Sup. context, Kagan, see 1992 Ct. Rev. at 39 constitutionally protected area of (“In deciding involving case seditious [a speech, unnecessary, it is either for us advocacy,] ... ... the Court will ask courts, or for the State to consider the government whether the has a sufficient phrase issues behind the “clear and speech actually reason to restrict af- present danger.” Certainly no one fected.”), depended which on whether the speech, would contend that obscene speech at issue a clear pres- “create[d] example, punished only upon Schenck, danger,” ent 249 Libel, showing of such circumstances. seen, as we have in the same class. Id. at 72 S.Ct. 725. d Schenck dealt with a content-based re Finally, majority’s reliance on stat of a category striction of would criminalizing utes fraud similar clearly now be considered entitled to First crimes, Maj. see Op. at is both protection—indeed, Amendment are there puzzling. Although flawed and fraud stat categories few of valuable in more generally require utes that the fraudulent principles terms of First Amendment than injury, statement cause an although opinions critical of the on mat Court has held fraudu security, military ters of national such as lent statements are not entitled to First Schenck, conscription. See see, protection, e.g., Ill. ex rel. 247; Brandenburg also v. Assocs., Inc., Madigan Telemarketing Ohio, 444, 448-49, (1969); Kagan, Elena The logic L.Ed.2d 793 it stretches Changing Faces First Amendment holdings conclude from these that a cogni Paul, Neutrality: R.A.V. v. St. Rust v. injury necessary zable for a category of Sullivan, and the Problem Content- speech to fall outside First Amendment Sup. Underinclusion, Based Rev. Ct. is, protection. just That because fraud (providing “seditious advoca harm, may require proof statutes some cy” example “constitutionally pro as an and such statutes have been held constitu added)). speech” tected tional, does not mean that in order for a Schenck and cases like it did not consider statute such as the Stolen Valor Act to be category constitutional, whether a protected require proof it too must Amendment—again, the First harm.7 To so a formal hold is error question "any relating 7. Numerous statutes are called into false statement to the sale of bank”); majority’s opinion. following any mortgage, any Federal land 1015(a) just punish (punishing "any § some of the statutes U.S.C. false state- oath, case, appear require proof proceeding, statements and do not ment under naturalization, (including relating of harm that the false statement be matter to ... citizen- "material”): aliens”); (punishing ship, registry § 18 U.S.C. 18 U.S.C. false, un- ment was and that he made the regulation The notion that logic. individualized speech requires knowledge with full of the state- protected statement harm is inconsistent cognizable of a proof falsity. attempt He does not ment’s First Amend- Supreme with the Court’s hyperbole imagi- defend his actions as jurisprudence. ment expression, native nor does he claim that in

he was misunderstood context. Alvarez knew when he also uttered statement sum, interpretation of the the better claim to have that his been Marine was cases and those of our Supreme Court’s false, in any that he had not served branch statements of fact—as court is false twenty-five years, of the armed forces for outside of First general category—fall him except in certain and that no one had shot and wounded protection protection country. such is neces- in contexts where while-he was the service of his If sary protect speech that matters.” “to considered, things All Alvarez’s self-in not fall within one a false statement does slip tongue troduction was neither a general ap- rule exceptions, of these performance; nor a theatrical it was sim exceptional in the con- plies. And even ply a lie. Under the rules announced in texts, a statement is neither false its progeny, Garrison and Alvarez’s know unprotected if it satirical nor theatrical is ingly false statement is excluded8 from the knowledge or reckless disre- is made with protection limited carved out spheres falsity. gard of for Supreme Court false statements of necessary fact protect speech that mat II ters, is therefore not entitled to mind, I now principles With these Garrison, protection. constitutional See challenge. as-applied turn to Alvarez’s (“[T]he 85 S.Ct. 209 know enjoy ... ingly false statement do[es] A protection.”); constitutional public meeting, In a Alvarez stated: (“[T]he inten U.S. at 94 S.Ct. 2997 I years. “I’m marine of 25 re- a retired materially ... ad [does not] tional he I year in the 2001. Back tired ‘uninhibited, society’s interest vance[] Congressional awarded the Medal was robust, wide-open’ public debate on many by the got Honor. I wounded times Times, (quoting New York issues.” Alvarez guy. same I’m still around.” 710)); Time, that he deny does not that his statement (“[T]he constitutional 87 S.Ct. 534 Medal of Hon- Congressional received the fact, against can tolerate guarantees that this state- sanctions or was statement pur- progeny require[] category "any the historical (punishing false statement for influencing any way unprotected at issue here be de- pose [to] the action of se, speech per Agriculture knowingly factual Secretary of in connection fined as false indebtedness”); simply enough 18 U.S.C. make the [Stolen with ... farm that is "any (punishing false statement” from First Amendment Valor] Act immune required analysis,” "guess made "in document and that we would need to [ERISA]”). adopt [know- the Court would what rule Op. ingly Maj. at 1208 n. statements].” suggest seems to Supreme 9. The emphasize I the fact yet decided what de- knowingly Court has not affhmatively Court has excluded gree protection will be af- pro- of constitutional First Amendment false statements from knowingly of fact. simply forded false statements tection rather than to include failed above, that, explained have I majority argues "even if one For the reasons I them. The contrary. quite to the agrees and its think the matter is with the dissent Gertz imposed by im the restraints the common law significant without calculated falsehood function.”).9 added)). of their essential pairment (emphasis par- of defamation” Thus, apply is no need to strict there ticular, the New York Times Court found scrutiny.10 that the “actual malice” standard was nec- essary prevent being defamation from B by public used officials as a civil substitute clear Supreme The Court’s rules may for criminal sedition: “What State as-applied Alvarez’s sufficient to doom by constitutionally bring about means apart even from these challenge,11 but beyond of a criminal statute is likewise rules, concerns that animated none of the reach of its civil law of libel” because New York Times progeny its should markedly ... “damage awards New York shield Alvarez’s statement. inhibiting prosecu- more than the fear of Times require- an “actual malice” imposed (foot- tion.” 376 at S.Ct. by brought pub- ment on defamation suits omitted). note The Court was determined criticism of suppress figures trying lic public suppress not to let or chill officials public figures. See them as at criticism of their official actions threat (“We today 84 S.Ct. 710 hold of a lawsuit. And the Court was confident power delimits a State’s Constitution officials, public public because of their damages award for libel in actions brought position, a ... oppor- would “have realistic critics their against officials public tunity to counteract false statements” due conduct." added)); official Gertz, (dis- “significant[ to their ... access to the ] at 418 U.S. channels effective communication.” privilege “a constitutional cussing intended Gertz, public to free criticism from at 94 S.Ct. 2997. officials majority satisfy Maj. 9. The ... the Act “concern[ed] because of would not this test. See potential setting precedent [the Act’s] Op. simply agree at 1215-17. I do not whereby government may proscribe subjected scrutiny. the Act should be to strict solely Maj. Op. it is a lie.” because that, majority my 1200. The fears under in- that, majority points 11.The out if I am cor terpretation, could “criminal- rect, opinion "the in this case would need be lying height, weight, age, iz[e] about one’s or paragraphs length,” no more than few facebook, financial status on match.com or that "the First asserts Amendment re falsely representing to one’s mother that one Maj. quires Op. at more.” 1208 n. 9. The smoke, beverages, does drink alcoholic that, majority Supreme is correct in the virgin, speed not exceeded the limit involving Court’s cases false statements of driving freeway.” Maj. Op. while on the fact, analysis "the First Amendment [wa]s provides parade 1200. Alvarez a similar id., rigorous,” spite general unpro horribles, arguing Congress pro- could tected nature of false statements of fact. But lying hibit to one's children about the exis- above, "rigor” tence of discussed was neces Santa Claus. sary only might to determine whether the Court was majori- But the fact that we find the ty’s hypothetical troubling unique and Alvarez’s laws faced with one of the situations where policy perspective from a is irrelevant to the New York Times's "actual malice” standard Garrison, question. First Amendment necessary protect speech was in order to and Time could not have been clearer: know- See, e.g., Pickering, matters. ing unprotected by lies are the First Amend- 1731; Time, ment. Until the erwise, Court tells us oth- 534; Times, New York 376 U.S. at 271- proper target majority’s for the Here, there is no need 84 S.Ct. 710. legislature, concerns is the not this court. consider whether New YorkTimes's standard indisputably applies Alvarez did act because agree I with the the Stolen if subjected scrutiny, Valor Act were to strict with "actual malice.” of fact made about can Times do statements in New York principles oneself only do if self-promotion. punished Nor be are made with to false not extend (a self-pro- principle to false is not principles extend “actual malice” these is, offi- true), officials—that to by public clearly requirement this is irrelevant motion in a but themselves portray who as-applied challenge cials to Alvarez’s because requires Public discourse light. positive dispute there is no that Alvarez did make equally praise free to that citizens are “actual his false statement with malice”— and its offi- their to condemn is, knowingly.12 anything, If the lack false, cials, in self- I can see no value but only requirement of a malice is relevant by public ser- statements aggrandizing I challenge, Alvarez’s facial which will dis- Indeed, public harm from offi- the vants. III.13 cuss Part mat- lying public to the on outright cials Second, majority the holds that the Act If record should be obvious. public ters of it is unconstitutional because does not re- Act “chills” false autobio- the Valor Stolen proximately that the false statement quire by public officials such as graphical claims ” “irreparable Maj. cause an harm. atOp. Alvarez, discourse will not be public our above, 1207. As discussed the First for the loss. the worse requirement, Amendment contains no such I.B.3, supra, see Part and thus the Act’s C harm require failure to is irrelevant to the rea- majority provides two main of whether it is unconstitu- determination why the Act is unconstitutional sons for tional. First, majority the to Alvarez. applied But even if the First Amendment de- Act is unconstitutional reasons that the harm, majority proof manded some the a malicious require it “does not because supplied question no reason Con- violation, any other re- nor does contain gress’s “[fraudulent determination scienter.... quirement or element of surrounding receipt claims the of ... [mili- to limit requirement a scienter Without tary] decorations and medals awarded the statute raises application, the Act’s or the Armed Forces of the the President ... concerns be- serious constitutional damage reputation the United States clearly pro- the First Amendment cause and medals.” criminally negligent meaning of such decorations punishing hibits public concern.” Act of No. 109— speech about matters Stolen Valor Pub.L. Gertz, (2006). Maj. (citing 2(1), Op. at 1209 120 Stat. 3266 When 2997). 340, 347, 94 S.Ct. Washington Badge created the George Merit, Pur- Military predecessor the thing, does not stand for For one Gertz Heart, to honor those who ple he wished Gertz, proposition; action” performed “singularly meritorious York to extend New Court “refus[ed] figure purple with “the of a heart cloth.” private to defamation of privilege Times gallant- “unusual Those who demonstrated individuals,” subject mat- though even extraordinary fidelity, and essential ry, public a matter of concern. ter was way, meet with a [would] service added). time, At same he or- false due reward.” accepting But even overbroad, what government, propose it is unclear relevance 12. I do not Unlike requirement read into the that a scienter requirement has even Act's lack of a scienter Act. majority's holding respect to Alva- with challenge. rez's facial Indeed, does not hold because unconstitutionally the Stolen Valor Act is that, society.” enti- 93 S.Ct. 2628. any who are not dered “[s]hould Instead, honors, legislatures the Court said that have insolence tled to the them, they rely unprovable assump- shall be on “various badges could assume tions,” “assumptions severely punished.” General the same kinds Orders Newburgh George Washington regula- underlie much lawful state [that] Issued (Ed- affairs,” at 34-35 tion of commercial and business Hudson, on the 1883) 1909) ed., Boynton, (reprint laws, ward C. antitrust such as federal securities 1782). (Order August laws, laws, Such and a “host” of environmental only dishonor the de- representations Even others. Id. 93 S.Ct. 2628. themselves, di- and medals but Amendment, corations by in areas touched the First of those who have group lute the select congressional fact that a directive “[t]he val- gratitude the nation’s for their earned unprovable assumptions reflects about heroes, to honor Every or. nation needs im- good people, including what is for the for selflessness and to to thank them their ponderable assumptions, is not a aesthetic example worthy an hold them out as that sufficient reason And statute uncon- flowing harm from those emulation. The stitutional.” Id. at 93 S.Ct. 2628. Giv- unworthily have crowned themselves who impossibility proving en the the kind of surely self-evident. “reputational harm” demanded the ma- jority, it is no wonder that neither Con- majority Congress’s purpose The finds gress requires nor the Constitution it. Act inadequate express- because the is not harm, that ly limited to statements cause say would Alvarez have had to What (“[WJhile Maj. Op. at 1209-10 the satisfy majority’s the newfound harm stan- identify injury Act tar- ‘Findings’ the the majority dard? The itself concedes actually applica- limit the gets, do not Alvarez’s statement was a “deliberate and “[tjhere Act.”), of the and because tion [lie],” Maj. Op. at it despicable govern- in Act that requirement no the “worthless, ridiculous, was a and offensive prove the burden to ment bear ],” proven and that Alvarez “was untruth[ writing proximately liar,” nothing to be more than a id. at 1217. defendant’s damage reputation caused and He was indeed “more” than that. The meaning military decorations and med- hubris of Alvarez’s claim to have received added). als,” (emphases id. Because the in Congressional Medal of Honor readily apparent finds “no reason may apparent ordinary not be Ameri- assuming, specific proof, for without cans, and it not have been obvious at reputation meaning military and districts, joint meeting of the water but every decorations is harmed time someone have men would not been lost on the one,” major- having lies about received serving who are or have in women served ity the Act holds unconstitutional. Id. statement, By our armed forces. his Alva- added). group: rez status in a select claimed most lived to American servicemen who receive

But the does not have to Congressional Medal of Honor. No basis, prove, case-by-case on a living Congres- soldier has received the single damaged statement of a defendant sional Medal of Honor since the Vietnam military of a award. The reputation Whitlock, Craig Pen- Greg War. Jaffe obscenity again cases are instructive. I, tagon Recommends Medal Honor rejected Paris Adult Theatre Court Soldier, Washington Post, July Living ... cry for “scientific data demons- http://www. available trating] exposure to obscene material adversely washingtonpost.com/wp-dyn/content/ affects men and women or their Alvarez, my regarding conclusion the facial article/2010/06/30/AR2010063005346.html 2010). constitutionality Act (last Indeed, necessarily no Con- July visited rests on a discussion of Alvarez’s over- Medal of Honor was awarded to gressional challenge. breadth I would hold that be- War, any participating the Gulf soldier any cause overbreadth of the Act can be decade, past conflicts over the and for our is, eliminated construction and awarded for actions So- only two were event, “substantial,” far from Broadrick v. malia, Iraq, actions in and two for four for Oklahoma, posthumously. in Afghanistan—all actions 2908, 37 L.Ed.2d 830 the Act is every Id. Alvarez’s statements dishonor facially constitutional. winner, Congressional Medal of Honor ev- is, ery literally, member who has been decorat- The overbreadth doctrine service doctrine, extraordinary repre- because it any away, every American now ed exception sents an to the usual [may] ... rules of serving. “insolence Such standing. Ordinarily, III person Article “a punished.”14 may constitutionally to whom a statute be ;Jc ;{; if; sf; # sfc applied will not be to challenge heard knowing Alvarez’s lie is not entitled to ground may statute on the that it conceiv- Thus, there is protection. constitutional ably applied unconstitutionally be to oth- subject Act to no need to the Stolen Valor ers, in other situations not before the scrutiny. I would hold that the Sto- strict Broadrick, 610, Court.” 413 U.S. at applied Act is constitutional as len Valor However, S.Ct. 2908. the Court him. I turn now to Alvarez’s facial chal- an exception has carved out to this stand- lenge. ing doctrine the First Amendment area because “the First Amendment needs Ill breathing space” overly and an broad stat- majority holds that the Act is “fa- ute can result in intolerable self-censor- cially invalid under the First Amendment.” 611, Thus, ship. Id. 93 S.Ct. 2908. the majority’s Maj. Op. at 1217. Some of the “permitted [litigants] Court to chal- analysis sounds the overbreadth doc- lenge a statute not because their own trine, majority but because the does not violated, rights expression of free but doctrine, actually apply this its facial hold- judicial prediction assump- because of ing presumably reasoning based on very tion that the statute’s existence “that no set of circumstances exists under cause others not before the court to re- which the Act would be valid.” United constitutionally protected frain from Salerno, 739, 746, States v. 612, expression.” Id. at 93 S.Ct. (1987). This is challenge 2908. “If such an overbreadth surprising given not that the be- succeeds, prosecution regardless fails that the Act is unconstitutional as lieves of the nature of the own con- defendant’s Alvarez, applied perhaps who is duct,” Risley, 719 F.2d Wurtz (9th Cir.1983), for a constitutional prototypical candidate because a successful over- I application challenge of the Act. Because believe breadth renders a statute uncon- and, therefore, applied Act to stitutional “invalid in all its is constitutional as government might sup- protection only if 14. The well be able to outside of First Amendment they produce cognizable ply caused harm. Given the further evidence of the harm holding, military govern- novelty majority's it is not false claims of awards. The surprising Alvarez did not antici- ment did not brief this matter because argued pate never that false statements of fact fall it. (em- tionally.” 108 S.Ct. 2225 Id. Trs. State Univ. Bd. applications,” added). And in States v. phasis United Fox, 109 S.Ct. N.Y. v. Williams, 1830, 170 (1989). Thus, 128 S.Ct. L.Ed.2d 388 suggested L.Ed.2d 650 the Court only “sparingly employed doctrine actually rule involves two Broadrick, that Broadrick’s as a last resort.” namely that requirements, statute’s (1) must be substantial “in overbreadth Broadrick, announced what In the Court to the absolute sense” and “relative rule in the the fundamental has become Id. at plainly legitimate sweep.” statute’s analysis: Amendment overbreadth (“[W]e vigorously have unconstitu to be held order for statute requirement that a statute’s enforced the overbroad, overbreadth of tionally “the substantial, only in an be overbreadth real, only but must statute [the] sense, but also relative to absolute well, judged in relation to substantial sweep.”). plainly legitimate statute’s sweep.” plainly legitimate the statute’s sum, asserting the over- party adde Id. challenge breadth has a difficult burden d).15 fact that one can con mere “[T]he satisfy: he must demonstrate applications of impermissible of some ceive substantially statute is overbroad both not sufficient to render a statute is legiti- an absolute sense and relative an overbreadth chal susceptible id., statute, and must sweep mate of the a realistic dan lenge .... must be [T]here showing make such a based both on significantly itself will ger that the statute fact, N.Y. text of the statute and on actual compromise recognized First Club, 14, 487 U.S. at 108 S.Ct. 2225. State facially chal for it to be protections grounds.” Mem lenged on overbreadth Athough majority opinion does not Angeles v. City Council Los formally analysis bers to the apply overbreadth of Vincent, 789, Act, 800- Taxpayers provide 466 U.S. it a number Stolen Valor does (1984) 2118, 01, 772 80 L.Ed.2d examples speech potentially reached added). elaborated (emphasis The Court in Ava- present the Act that are not Thus, over- meaning on the of “substantial” I particular rez’s case. will conduct Associa analysis breadth New York State Club my using overbreadth these exam- York, 1, 108 City tion v. New 487 U.S. ples provided by and those Avarez. 2225, (1988), 1 held 101 L.Ed.2d and majority’s Based on the and Avarez’s ex- party challenging the law must amples, argu- Valor Act could Stolen just text of the ably unconstitutionally demonstrate not from the held overbroad (1) actual that a main the Act does not statute but also for two reasons: “from fact requirement might, number of instances exist contain a scienter substantial therefore, reach inadvertent violations of applied which the cannot be constitu- [l]aw activities, 15. Broadrick dealt with a picketing participation regulation activi such as campaigns, previously component election which have ties that had a First Amendment categorized involving plus "pure speech.” U.S. at conduct but that were not been Ferber, 615, speech”); Spokane v. Ar In New see also Brockett 93 S.Ct. 2908. York cades, Inc., 503 n. 73 L.Ed.2d (1985) ("The L.Ed.2d 394 Court of the Court extended Broadrick’s Appeals holding erred in that the Broadrick requirement of substantial overbreadth to requirement is involving "pure speech.” id. at ... substantial overbreadth in cases See applicable pure speech rather than (reasoning where 102 S.Ct. 3348 that Broadrick's specifically held "appears equally applicable [Ferber] conduct is at issue. rationale contrary.”). publication it of books and films as Second, Act; if applied the Act could be ments. even the Act could be imaginative expression. interpreted I ad- to reach to satire or these kinds of mistak- statements, potential applications dress each of these en false even if such state- Act in turn. ments were entitled to pro- constitutional (which clear), potential tection is not A sweep of the Act does not even come close that the Act proclaims to “substantial” overbreadth. unconstitutional because it “does not re- violation, nor does it

quire malicious requirement contain other or element step analy The first in the overbreadth require- of scienter.... Without a scienter sis is to determine whether the Stolen application, ment to limit the Act’s actually Act Valor covers statements that raises serious constitutional con- statute mistakenly interpreted can be to be false ... because the First Amendment cerns Williams, military claims of awards. See clearly prohibits criminally punishing neg- (“The 128 S.Ct. 1830 first ligent speech public about matters of con- step analysis in overbreadth is to construe Maj. Op. (citing cern.” at 1209 statute; challenged impossible 2997). It is not determine whether a statute reaches too majority’s opinion exactly clear from the far without knowing first what the statute by “negligent” what it means false claim covers.”). Crucially, Court honor, military only plausible but the “[fjacial has established that overbreadth negligence that I can con- instance such has not been invoked when a limiting con ambiguous ceive of is an statement that is struction placed has been or could be on incorrectly understood to have claimed re- Broadrick, challenged statute.” award, ceipt military of a when in fact the 93 S.Ct. 2908 add person actually any did not make such ed); Hooper California, see also example, imagine claim.16 For one could a 648, 657, 15 S.Ct. 39 L.Ed. 297 “I person saying have a Medal of Honor” (1895) (“[Ejvery reasonable construction mistakenly interpreting and someone him must be resorted to in order save a to mean that he has been awarded the unconstitutionality.”). statute from In oth Honor, Congressional Medal of even words, if possibly er even the Act could be though speaker only means he interpreted constitutionally to reach some it, merely possesses perhaps family as a protected speech, the Act will not be held heirloom. unconstitutionally overbroad if it is also “ ” However, ‘readily susceptible’ such mistaken false state- to a construction present ments do not a constitutional such prob- eliminates overbreadth. Ste vens, First, Act. (quoting lem for the the Act is amenable 130 S.Ct. at 1592 Reno v. ACLU, precludes to a reasonable construction that 521 U.S. 117 S.Ct. (1997)).17 application its to these kinds of state- "negligent” Although limiting 16. Another conceivable or "mis- a reasonable construc- 17. speaker taken” claim is one in which the being facially tion saves a statute from held mistakenly military believesthat he has won a overbroad, government's promise of rea- award, but I do not consider it that a realistic prosecutorial sonable discretion does not. (let person peo- alone a substantial number of Stevens, ("We See 130 S.Ct. at 1591 would not ple) mistakenly would believe that he has uphold merely an unconstitutional statute be- been awarded a “decoration or medal author- promised to use it res- cause Government by Congress ized the Armed Forces of ponsibly.”). 704(b). § United 18 U.S.C. States.” Hon- Congressional Medal of received the punishes person Act Valor The Stolen or, himself or herself’ as defined the U.S. Code. “falsely represents who military award author- to have received sum, correctly the Act is long as as 704(b) (em- 18 U.S.C. by Congress. ized interpre- according to a reasonable applied added). first definition Webster’s phasis it will not “represents,” tation of the word bring “represent” “[t]o of the word ambiguous that can sweep statements to be mind: cause clearly [to] before the interpreted merely mistakenly be esp. by descrip- present ... :[to] known authorized eongressionally claim of a IN- THIRD NEW tion.” WEBSTER’S Thus, a reason- military award. because DICTIONARY TERNATIONAL construction”—indeed, “limiting able (2002). definition, ambigu- an Under construction—can be most reasonable conceivably that could be statement ous “represent” pre- on the word placed mili- receipt of a misinterpreted to claim statements, application cludes its to such punished not be under tary award could regard. in this the Act is not overbroad would such a statement the Act because Broadrick, 2908; clearly before the mind” “bring Hooper, 155 U.S. at see also speaker has described listener 207. award, particu- having himself as won (as always will almost

larly when case) makes it context of the statement making is not speaker obvious that if were Even mistaken false statements representation. such a subject theoretically punishment under Act, tells the Stolen Valor common sense no example, Congress has made For will be extraordi- punishment us that such phrase the use of the attempt preempt honor,” nonexistent, “in narily number of uni- if not both “medal of rare some kind high versities and schools award sense” and “relative to the stat- absolute recipients Williams, of a “medal of honor.” The plainly legitimate sweep.” ute’s “medal truthfully represent themselves as In an winners, fear of honor” but no one should (and sense, Alvarez cannot absolute Act. prosecution under the Stolen Valor to) “from attempted not even demonstrate ” Congress quite was careful to define “de- dan- actual that there is “realistic fact as those “author- coration[s] medal[s]” of in- ger” or that “a substantial number Armed Forces of by Congress ized for the in state- stances exist which” mistaken 704(b). § States.” 18 U.S.C. United the Act. N.Y. charged ments will be under of the Medal of special And case Club, 11, 14, State Honor, it as “a Con- Congress described added); (emphasis Taxpayers 2225 for Honor”—presumably gressional Medal of Vincent, at 104 2118. distinguish it from other medals of hon- majority, failed Both Alvarez and the have “a of honor or—and defined as medal in which the identify single a instance 3741, 6241, §§ awarded under U.S.C. [10 in a other applied Act has been context § or 14 18 U.S.C. 491].” U.S.C. simple a lie about receiv- than Alvarez’s: added). 704(c)(2)(A) (emphasis § No one ing military a honor. reading any question the Act should have Act also far Any overbreadth of the that he or she continue to use statute’s from substantial “relative to the term “medal of honor” to denote those Williams, sweep,” 553 plainly legitimate medals of honor awarded our nation’s 1830, because, “[i]n at The Stolen Valor educational institutions. majority applications, [the of its only those who claim to have the vast Act reaches

1239 a problems scribing] significant speech” raises no constitutional universe of Act] whatsoever,” id. at 128 S.Ct. 1830. fell within the unprotected neither valor military claims of have been False category of obscenity under Miller nor the increasing: investigated “The FBI 200 sto- unprotected category of child pornography year typically valor cases last re- len 239-40, under Ferber. Id. month, tips triple a ceives about The Court held that the statute was September number came before “substantially and in overbroad violation of Christian terrorist attacks.” Daven- the First Amendment.” Id. at Helps port, One Man’s Database Uncover In holding, S.Ct. 1389. so the Court rea- Valor, Washington Cases of Falsified that “teenage activity soned sexual 10, 2010, May http:// available Post, the sexual abuse of in- children[] have www.washingtonpost.com/wp-dyn/contenV works,” countless spired literary both an- article/2010/05/09/AR2010050903363.html? contemporary, cient and which “explore (last 6, 2010); hpid=topnews July visited sweep themes within the wide of the stat- Prosecuting also Keith Rogers, see Fraud prohibitions.” ute’s Id. Military Targeted, Imposters Cases: Las added). S.Ct. 1389 25, 2010, Vegas June Review-Journal, Stevens, More recently, the Court http://www.lvrj.com/ available at ne ws/ establishing addressed statute a criminal military-impostors-targeted-97141054. penalty anyone for knowingly who “cre- (last 2010) (“The July prob- html visited ate[d], s[old], possesse[d] depiction [military is fast imposters] reaching lem cruelty,” “depiction animal where a of ani- (quotation epidemic proportions.” marks cruelty” mal was as one “in defined which omitted)). again, And neither the living intentionally maimed, animal is pointed nor Alvarez has to even one case mutilated, tortured, wounded, or killed.” involving person mistakenly who was 1582; (c)(1). 48(a), § S.Ct. at 18 U.S.C. interpreted military to have claimed a holding that the statute was unconstitu- Thus, award. to me “the para- seems tionally overbroad, the Court “read 48 to digmatic case of a ... whose legiti- statute create a criminal prohibition of alarming arguably mate reach impermis- dwarfs its breadth,” emphasizing language Ferber, applications.” York sible New v. the statute sweep would in the “enormous hunting-related national market de- (1982); L.Ed.2d 1113 also Magill pictions living which a animal is (1st inten- Cir.1977) Lynch, 560 F.2d killed,” tionally (“Some and that seeking “[t]hose needed; sensitivity reality comply with the law face a application [would] invalid that is far-fetched does bewildering maze of weight regulations not deserve from at as much as one that is Stevens, separate jurisdictions.” least 56 probable.”). added). (emphases 130 S.Ct. at 1588-89 This case falls far short level of hunting depictions “The demand for ex- overbreadth that the Court has the ceeded] estimated demand” for de- found to be In “substantial.” Ashcroft pictions Congress that could legitimately Coalition, Speech 234, Free 122 1589; also, proscribe. Id. at e.g., see Bd. 1389, 152 S.Ct. L.Ed.2d 403 for Jesus, Inc., Airport Comm’rs v. Jews example, the Court faced with a was fed- of for 569, 574-75, U.S. eral statute that “extended] the federal (invalidating L.Ed.2d an ordi- prohibition against pornography child to that, “by sexually prohibiting protected nance all explicit appeared] that images to depict produced expression Angeles [at minors but Los International were without children,” using any real “pro- Airport], purported] thus create a to virtual character, iron- getting being at air- into satirists Free Zone’ [the ‘First Amendment sarcastic, every using hyperbole, ic covering “virtually poets potentially port],” airport]”). crafting story, persons authors a creative enter[ed] [the individual who make factual statements or asser- often have to be that we held The statutes which, aware, as they fully tions are are signifi- have also been facially overbroad majori- untrue.” entirely Id. at 1214. The Act. than the Stolen Valor cantly broader ty enter- presents examples “[s]atirical Wurtz, example, the for we addressed Onion, Daily tainment such as The The constitutionality of Montana’s “intimidation Show, Id. at Report.” Colbert statute,” punished both constitution- which 1213. protect- threats and those ally proscribable Although the Court has never 719 F.2d at ed First Amendment. the held, quite so I am held the was confident satirical statute 1441. We receipt or theatrical claiming it statements unconstitutionally overbroad because military a protected award are under the relatively sweep “many harmless would Amendment. Provocative state- common ex- including such expressions,” sit-ins, generally ments satirists marches pressions “[t]hreats as thought unpro- to come within class street, mass other picketing in the “false of fact” tected statements because (emphasis Id. at 1442 such activities.” reasonably these statements “could not added). concluded that statute We interpreted stating facts.” as actual [be] broadly “applie[d] to threats of minor so Hustler, 876; at infractions, likely reasonably to threats not Milkovich, also they will be carried to a belief that induce out, any in- and to threats unrelated action, that great

duced or threatened But claims military about decorations protected speech brought deal of [wa]s and medals made in an artistic context are added). within the statute.” Id. subject prosecution the most under Act. reasonable construction Once signif- These illustrate the kind of cases again, overbreadth has not been “[f]acial icant satisfies overbreadth limiting when a invoked construction has requirement Broadrick standard. If the placed challenged been or could be on the is to have substantial overbreadth Broadrick, statute.” that, meaning, compels the conclusion 2908. Since the first definition of virtually potential because there is no for “represent” clearly bring word be- “[t]o punishment military claims of mistaken mind,” fore WEBSTER’S awards, unconstitutionally the Act is not plausibly interpreted pre- Act can be regard. overbroad in this application its to statements clude B “reasonably interpreted cannot [be] facts,” Hustler, actual stating Second, majority argues that the Act because statements that might other applied be satire or kinds of reasonably interpreted cannot to be imaginative expression—such as a person “bring clearly true would not before the military who claims he has received de- speaker mind” of listener sarcastically, coration playing or while stating actual facts about himself. role in thus play or movie—and criminal- If, izes even plainly example, Stephen those statements that are Colbert mocked worthy president’s incredible and not of actual belief. statement he had “won” Maj. Op. ongoing by proclaiming, See The an war sarcasti- 1213-14. “[Wjhether “Right—and Congression- states: actors I won cally, it be method Honor,” anyone I al I doubt would conclude that the Act Medal is reason- “represent- ably think that had susceptible limiting would Colbert to a construction himself as a Medal of Honor winner. ed” any that eliminates potential overbreadth Or, example, and, to take a second actor Tom even if the Act did have some degree “received” of Honor in Hanks the Medal overbreadth, this overbreadth is not fact, Gump. movie Forrest Lieuten- I hold “substantial.” would that the Act is Dan could made it ant not have clearer facially overbroad and therefore consti- the movie Forrest had received the tutional.

Congressional Medal of Honor: They gave you Congres-

Lt. Dan: IV Medal of Honor. sional Now Lieutenant Dan. Forrest: that’s majority’s provocative, The opinion Lieutenant Dan! say the effectively least. It overrules They Dan: gave you Congres- Lt. progeny Gertz its and holds that false Medal of sional Honor! generally statements of fact receive First sir, Yes did. Forrest: sure protection. It effectively imbecile, They gave you[,] Dan: by holding Lt. a overrules Garrison that even goes moron who knowingly on television makes false of fact pro- statements fool out of in front of himself the whole tected. It holds that a statement of country, Congressional produce “irreparable damn Medal fact must harm” in of Honor. to lose protection, order First Amendment wholly concept thus confusing of un- Forrest: Yes sir. protected calling question into Gzvmp http:// Forrest available at obscenity Court’s jurispru- www.generationterrorists.com/quotes/.html dence. And it strikes down an act of (last 2010); July visited see also The Congress despite on its face im- most (1984) Karate Kid that Mr. (representing portant consideration per- case: no Morita, played Pat Miyagi, by actor had has ever subjected son been to an uncon- Congressional received the Medal of Hon- prosecution under stitutional the Stolen II); or for his heroism in War World and, Act Valor under reasonable inter- Karate (showing Next Kid Mr. Mi- Act, pretation extremely it is unlike- wearing the yagi Congressional Medal of anyone ly ever will be. Honor). But we all the con- understood Tom qua Gump text: Hanks Forrest re- I respectfully dissent. ceived Medal of Honor. Forrest Gump charged violating cannot be with and, aware,

Act so far as I am Tom Hanks “represented Tom

qua Hanks has never as a recipient.

himself’ Medal of Honor I anyone

do not believe it realistic think

would to accuse Colbert Hanks

violating the Stolen Act in Valor these must, Assuming,

contexts. as I

Act will be with modicum applied some sense, it reach

common does not satire or

imaginative expression.

Case Details

Case Name: United States v. Alvarez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 17, 2010

Citation: 617 F.3d 1198

Docket Number: 08-50345

Court Abbreviation: 9th Cir.