Lead Opinion
Opinion by Judge MILAN D. SMITH, JR.; Dissent by Judge BYBEE.
Defendant-Appellant Xavier Alvarez conditionally pleaded guilty to one count of falsely verbally claiming to have received the Congressional Medal of Honor, in violation of the Stolen Valor Act (the Act), 18 U.S.C. § 704(b), (c),
The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. While we agree with the dissent that most knowingly false factual speech is unworthy of constitutional protection and that, accordingly, many lies may be made the subject of a criminal law without creating a constitutional problem, we cannot adopt a rule as broad as the government and dissent advocate without trampling on the fundamental right to freedom of speech. See Jonathan D. Varat, Deception and the First Amendment: A Central, Complex, and Somewhat Curious Relationship, 53 UCLA L.Rev. 1107, 1109 (2006) (“[AJccepting unlimited government power to prohibit all deception in all circumstances would invade our rights of free expression and belief to an intolerable degree, including most notably—and however counterintuitively—our rights to personal and political self rule.”). Rather we hold that regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment.
The rule the government and dissent urge us to apply in order to uphold the Act would, if adopted, significantly enlarge the scope of existing categorical exceptions to First Amendment protection. All previous circumstances in which lies have been found proscribable involve not just knowing falsity, but additional elements that serve to narrow what speech may be punished. Indeed, if the Act is constitutional under the analysis proffered by Judge By-bee, then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.
Finding no appropriate way to avoid the First Amendment question Alvarez poses, we hold that the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First Amendment’s protective sweep. We then apply strict scrutiny review to the Act, and hold it unconstitutional because it is not narrowly tailored to achieving a compelling governmental interest.
FACTUAL AND PROCEDURAL BACKGROUND
Xavier Alvarez won a seat on the Three Valley Water District Board of Directors in 2007. On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987,1 was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”
Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the
Alvarez’s misrepresentations during the 2007 water district board meeting were only the latest in a long string of fabrications. Apparently, Alvarez makes a hobby of lying about himself to make people think he is “a psycho from the mental ward with Rambo stories.” The summer before his election to the water district board, a woman informed the FBI about Alvarez’s propensity for making false claims about his military past. Alvarez told her that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his buddies, was able to get the chopper back into the sky.
In addition to his lies about military service, Alvarez has claimed to have played hockey for the Detroit Red Wings, to have worked as a police officer (who was fired for using excessive force), and to have been secretly married to a Mexican starlet. As the district court observed, Alvarez “live[s] in a world, a make-believe world where [he] just make[s] up stories all the time.... [T]here’s no credibility in anything [he] say[s].”
After the FBI obtained a recording of the water district board meeting, Alvarez was indicted in the Central District of California on two counts of violating 18 U.S.C. § 704(b), (c)(1). Specifically, he was charged with “falsely representing] verbally that he had been awarded the Congressional Medal of Honor when, in truth and as [he] knew, he had not received the Congressional Medal of Honor.” Alvarez appears to be the first person charged and convicted under the present version of the Act.
Alvarez moved to dismiss the indictment, claiming that the Act is unconstitutional both on its face and as applied to him. The district court denied the motion. Alvarez then pleaded guilty to the first count, reserving his right to appeal the First Amendment question. He was sentenced to pay a $100 special assessment and a $5,000 fine, to serve three years of probation, and to perform 416 hours of community service. This case addresses Alvarez’s timely appeal of the constitutional issue.
JURISDICTION AND STANDARD OF REVIEW
Alvarez brings both facial and as-applied
We have jurisdiction pursuant to 28 U.S.C. § 1291.
DISCUSSION
The Act provides:
*1202 Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.
18 U.S.C. § 704(b). The prescribed prison term is enhanced to one year if the decoration involved is the Congressional Medal of Honor, a distinguished-service cross, a Navy cross, an Air Force cross, a silver star, or a Purple Heart. Id. § 704(c), (d).
I
The Act proscribes false verbal or written representations about one’s being awarded Congressionally authorized military honors and decorations. The parties do not dispute that the Act “seek[s] to regulate ‘only ... words.’ ” Broadrick v. Oklahoma,
Content-based speech restrictions ordinarily are subjected to strict scrutiny. See United States v. Playboy Entm’t Group, Inc.,
“From 1791 to the present,” ... the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” These “historic and traditional categories long familiar to the bar[ ]” [ ] includ[e] obscenity, defamation, fraud, incitement, and speech integral to criminal conduct....
— U.S. —,
The primary argument advanced by the government, and our dissenting colleague, is that the speech targeted by the Act— demonstrably false statements about having received military honors—fits within those “well-defined” and “narrowly limited” classes of speech that are historically unprotected by the First Amendment. The government and the dissent rely on Gertz v. Robert Welch, Inc. and its progeny for the proposition that “the erroneous statement of fact is not worthy of constitutional protection.”
We disagree. Gertz does not stand for the absolute proposition advocated by the government and the dissent. See Nike, Inc. v. Kasky,
It has long been clear that First Amendment protection does not hinge on the truth of the matter expressed, see Sullivan,
[t]o persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.
... [Erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the breathing space that they need to survive.
II
We begin by noting our rejection of the government’s suggestion that because “[f|alse statements of fact are particularly valueless,” Hustler Magazine v. Falwell,
First, under the government’s proposed approach, it would effectively become the speaker’s burden to prove that his false statement should be protected from criminal prosecution. That approach runs contrary to Supreme Court precedent. See Philadelphia Newspapers, Inc. v. Hepps,
Second, the government’s approach would give it license to interfere significantly with our private and public conversations. Placing the presumption in favor of regulation, as the government and dissent’s proposed rule does, would steadily undermine the foundations of the First Amendment. In Cohen v. California, the Court rejected state regulation of profanity because “the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word?”
Profanity and deliberately false statements of fact rarely contribute meaningfully to public debate over important issues, but
[t]he constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us....
... We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.
Cohen,
There is certainly no unbridled constitutional right to lie such that any regulation of lying must be subjected to strict scrutiny. However, the right to speak and write whatever one chooses—including, to some degree, worthless, offensive, and demonstrable untruths—without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment. The dissent accuses us of confusing rules with exceptions, but with due respect, we disagree with his postulate that we must commence our constitutional analysis with the understanding that all false factual speech is unprotected. The fundamental rule is found in the First Amendment itself: “Congress shall make no law ... abridging the freedom of speech.” U.S. Const, amend. I. Any rule that certain speech is not protected by this foundational principle is the exception, which may in turn be subject to other exceptions to protect against such exceptions swallowing the rule.
In other words, we presumptively protect all speech against government interference, leaving it to the government to demonstrate, either through a well-crafted statute or case-specific application, the historical basis for or a compelling need to remove some speech from protection (in this case, for some reason other than the mere fact that it is a lie). Though such an approach may result in protection for a number of lies, which are often nothing more than the “distasteful abuse of [the First Amendment] privilege,” Cohen,
Ill
If the speech targeted by the Act is to be declared among those classes of speech which can be prohibited without any constitutional problem (the exceptions to the First Amendment), the speech must fit within those “historical and traditional categories long familiar to the bar.” Id. at 1584 (internal quotation marks omitted). We find no authority holding that false factual speech, as a general category unto itself, is among them.
A
Gertz involved a libel action by a private citizen against a newspaper for the newspaper’s reckless printing of an accusation that the plaintiff was a Communist.
Moreover, Garrison’s clarification is not the only relevant refinement. In defamation jurisprudence, the question has never been simply whether the speech “forfeits [First Amendment] protection by the falsity of some of its factual statements.” Sullivan,
Since the Stevens Court saw fit to name defamation specifically, rather than false statements of fact generally, as the historical category excluded from constitutional protection, we believe the historical category of unprotected speech identified in Gertz and related law is defamation, not all false factual speech. The dissent erroneously relies on Gertz for its statement that
With this constitutional background in mind, we next consider whether the Act fits into the defamation category. We assume that receipt of military decorations is a matter of public concern, as it primarily involves Congressional and military recognition of public service. The Act, however, does not require a malicious violation, nor does it contain any other requirement or element of scienter (collectively, a scienter requirement). Without a scienter requirement to limit the Act’s application, the statute raises serious constitutional concerns under defamation jurisprudence because the First Amendment clearly prohibits criminally punishing negligent speech about matters of public concern. See Gertz,
To avoid such a result, the government preemptively suggested at oral argument that a scienter requirement can be read into the Act. Adopting the government’s suggestion (even though the Act presently includes no express scienter element) would require us to construe the Act to include a requirement that the government prove that the defendant spoke with malice. See Staples v. United States,
But that is not enough. The Court has never held that a person can be liable for defamation merely for spreading knowingly false statements. The speech must also be “injurious to a private individual.” Gertz,
Of course, if we look beyond the text of the Act, there is a presumptive harm identified by Congress that might be analogized to the presumption of reputational harm made in defamation cases. Specifically, Congress made “Findings” that “fraudulent claims” about receipt of military honors “damage the reputation and meaning of such decorations and medals.” Stolen Valor Act of 2005, Pub.L. No. 109-437, § 2(1),
First, while the “Findings” identify the injury the Act targets, they do not actually
More importantly, even if it were justifiable to presume that harm to the meaning and reputation of military decorations occurs whenever a false claim concerning their receipt or possession is made, the government may not restrict speech as a means of self-preservation. The right against defamation belongs to natural persons, not to governmental institutions or symbols. See Sullivan,
Thus, the Act is not sufficiently analogous to an antidefamation law to bring it within the scope of the historical First Amendment exception for laws punishing defamation.
B
Moving beyond defamation, there are other of the historical categories that may involve false factual speech—fraud and, to a certain extent, speech that is integral to criminal conduct. It is obvious, however, that these categories also include limiting characteristics to what speech may be proscribed beyond mere falsity, just as defamation law does.
Fraud statutes must be precisely crafted to target only specific false statements that are likely to cause a bona fide harm.
[I]n a properly tailored fraud action the State bears the full burden of proof. False statement alone does not subject a [speaker] to fraud liability____ [T]o prove a defendant liable for fraud, the complainant must show that the defendant made a false representation of a material fact knowing that the representation was false; further, the complainant must demonstrate that the defendant made the representation with the intent to mislead the listener, and succeeded in doing so.
Ill. ex rel. Madigan v. Telemarketing Assocs, Inc., 538 U.S. 600, 620,
Even laws about perjury or fraudulent administrative filings—arguably the purest regulations of false statements of fact— require at a minimum that the misrepresentation be willful, material, and uttered under circumstances in which the misrepresentation is designed to cause an injury, either to the proper functioning of government (when one is under an affirmative obligation of honesty) or to the government’s or a private person’s economic interests. See, e.g., United States v. Dunnigan,
In addition, impersonation statutes are drafted to apply narrowly to conduct performed in order to obtain, at a cost to another, a benefit to which one is not entitled. See 18 U.S.C. § 912 (“Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.” (emphases added)).
Since Congress apparently intended the Act to be used to stop fraud, comparing the Act to fraud laws strikingly illustrates the Act’s infirmities. In a “properly tailored fraud action” “[fjalse statement alone does not subject a [speaker] to fraud liability.” Ill. ex rel. Madigan,
Somewhat relatedly, criminal conduct is not immunized “merely because the conduct was in part initiated, evidenced, or
C
In sum, our review of pertinent case law convinces us that the historical and traditional categories of unprotected false factual speech have thus far included only certain subsets of false factual statements, carefully defined to target behavior that is most properly characterized as fraudulent, dangerous, or injurious conduct, and not as pure speech. We are aware of no authority holding that the government may, through a criminal law, prohibit speech simply because it is knowingly factually false.
Precedent makes clear that knowing factual error is insufficient “to remove the constitutional shield from criticism of official conduct.” Sullivan,
Moreover, there can be no doubt that there is affirmative constitutional value in at least some knowingly false statements of fact. Satirical entertainment such as The Onion, The Daily Show, and The Colbert Report thrives on making deliberate false statements of fact. Such media outlets play a significant role in inviting citizens alienated by mainstream news media into meaningful public debate over economic, military, political and social issues. However, even if such satirical writings and shows did not invite attention to and comment about issues of “public importance,” would anyone with even a rudimentary knowledge of First Amendment law seriously argue that the satirical, false statements frequently contained in such
Thus, false factual speech as a general category is not, and cannot be, proscribed under threat of criminal prosecution. Although certain subsets of false factual speech have been declared unprotected, such classes of speech were developed as the result of thoughtful constitutional analysis of what other characteristics the speech must have before it can be proscribed without clashing with First Amendment protections. The Act does not fit neatly into any of those “well-defined” and “narrowly limited” classes of speech previously considered unprotected, and we thus are required to apply the highest level of scrutiny in our analysis.
IV
Before performing the customary First Amendment analysis, however, we consider alternatively what may perhaps be better authority for the view that the maliciously stated false factual speech is historically unprotected—not Gertz and the unique universe of defamation jurisprudence, or the law of fraud, but Schenck v. United States, as suggested by Alvarez in his appeal. There, Justice Holmes famously noted that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
Generalizing from the “fire in a theater” hypothetical, Justice Holmes went on to hold that “[t]he question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Id. (emphasis added). To the extent we are even free to look beyond defamation and fraud for a more general rule concerning prohibition of false factual speech, we agree with Alvarez that the rule from Schenck might supply a helpful guideline for defining the relevant subset of false speech that is historically unprotected.
Following Schenck, then, we might articulate the class of false factual speech unprotected by the First Amendment to be that false factual speech which creates a clear and present danger of a harm Congress has a right to prevent. Assuming that the “clear and present danger” test is the more appropriate rule, as Alvarez urges us to do, we agree with him that the Act fails the test for the same reasons the Act is not analogous to anti-defamation laws.
As explained in Schenck, the power of the government to punish such speech involves careful consideration of “proximity and degree” of the harm. For the reasons already substantially described supra in Part III.A, the speech targeted by the Act does not pose any immediate and irreparable harm; any harm it does cause can be remedied by more speech. Further, the harm the Act identifies—damage to the reputation and meaning of military honors—is not the sort of harm we are convinced Congress has a legitimate right to prevent by means of restricting speech.
V
Having concluded that the Act does not fit within the traditional categories of speech excluded from First Amendment protection, we must subject it to strict scrutiny review. Indeed,
[e]ven as to [the narrowly limited classes of speech noted in Chaplinsky ] ... because the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn ... the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom!.] In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. Because First Amendment freedoms need breathing space to survive, government*1216 may regulate the area only with narrow specificity.
Gooding,
The strict scrutiny standard of review is familiar: the government must show that the law is narrowly tailored to achieve a compelling governmental interest. Citizens United v. Fed. Election Comm’n, — U.S.-,
The asserted governmental interest at issue in the Act is to prevent “fraudulent claims” about receipt of military honors, such claims causing “damage the reputation and meaning of such decorations and medals.” Stolen Valor Act of 2005, Pub.L. No. 109-437, § 2(1),
However, the government has not proven here that the speech restriction is a narrowly tailored means of achieving that noble interest. In Brown v. Hartlage, the Supreme Court explained,
Although the state interest in protecting the political process from distortions caused by untrue and inaccurate speech [or, in this case, the state interest in protecting the integrity of our national military decoration system] is somewhat different from the state interest in protecting individuals from defamatory falsehoods, the principles underlying the First Amendment remain paramount. Whenever compatible with the underlying interests at stake, under the regime of that Amendment “we depend for ... correction not on the conscience of judges and juries but on the competition of other ideas.” In a political campaign, a candidate’s factual blunder is unlikely to escape the notice of, and correction by, the erring candidate’s political opponent. The preferred First Amendment remedy of “more speech, not enforced silence,” thus has special force.
On this record it is speculative at best to conclude that criminally-punishing lies about having received Congressionallyawarded medals is the best and only way to ensure the integrity of such medals— after all, it seems just as likely that the reputation and meaning of such medals is wholly unaffected by those who lie about having received them. The greatest damage done seems to be to the reputations of the liars themselves. See supra pp. 1210-11; see also United States v. Hinkson,
Further, we agree with the reasoning of the District Court of Colorado that suggesting “that the battlefield heroism of our servicemen and women is motivated in any way ... by considerations of whether a medal may be awarded simply defies ... comprehension” and is “unintentionally insulting to the profound sacrifices of military personnel the Stolen Valor Act purports to honor.” United States v. Strandlof, No. 09-cr-00497-REB,
In sum, honoring and motivating our troops are doubtless important governmental interests, but we fail to see how the Act is necessary to achieving either aim. Accordingly, we hold- that the Act is not narrowly tailored to achieve a compelling governmental interest. As presently drafted, the Act is facially invalid under the First Amendment, and was unconstitutionally applied to make a criminal out of a man who was proven to be nothing more than a liar, without more.
We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment. The government
CONCLUSION
In order to advance Congress’s praiseworthy efforts to stop fraudulent claims about having received Congressionally authorized military honors, the government would have us extend inapposite case law to create an unprecedented exception to First Amendment guarantees. We decline to follow such a course, and hold that the Act lacks the elements that would make it analogous to the other restrictions on false speech previously held to be proscribable without constitutional problem. Accordingly, we hold that the Act is not narrowly drawn to achieve a compelling governmental interest, and is unconstitutional.
REVERSED. The case is REMANDED to the district court for proceedings consistent with this opinion.
Notes
. Although predecessor versions have existed since 1948, the current form of the Act was passed in 2006. In that year, Congress found that ''[fjraudulent claims surrounding the receipt of the Medal of Honor [and other Congressionally authorized military medals, decorations, and awards] damage the reputation and meaning of such decorations and medals,” and that "[[legislative action is necessary to permit law enforcement officers to protect the reputation and meaning of military decorations and medals.” Stolen Valor Act of 2005, Pub.L. No. 109-437, § 2(1), (3), 120 Stat. 3266, 3266 (2006).
. Because, as described further infra, the Act is so broadly drafted, the government was not required to prove anything before the district court except that Alvarez made a false statement about his having received the Congressional Medal of Honor—to which Alvarez pleaded guilty. Accordingly, we know very little about what other evidence the government might have been able to introduce in order to prove that Alvarez’s particular statements were unprotected. For instance, some evidence in the record suggests he might have made the false claim at issue, or similar misrepresentations, in order to fraudulently obtain certain benefits.
. Since Chaplinsky's list is outdated, see Cohen v. California,
. One possible answer to this question is to use the mode of analysis outlined in R.A.V. v. City of St. Paul,
. Although the dissent denies the proposed rule would result in ad hoc balancing, his own analysis shows that it does. See Dissent at p. 1233 (explaining that the Act does not cover speech that matters because "the harm from public officials outright lying to the pub-lie on matters of public record should be obvious” and that “our public discourse will not be worse for the loss” caused by chilling "false autobiographical claims by public officials such as Alvarez”).
. Of course, in the area of commercial speech, the analysis that follows might be very different. Here, there is no suggestion that the Act targets commercial speech, and therefore we do not address commercial speech given the unique way in which it is treated under the First Amendment. However, we are additionally persuaded that upholding the Act would require a novel extension of Gertz by the fact that, even in the context of commercial speech, knowingly false factual speech about a matter of public concern is potentially entitled to heightened First Amendment scrutiny. See Nike,
. A false statement of fact can be punished upon a showing of mere negligence in the context of purely private defamation. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
. On the importance of irreparability, see infra pp. 1207-11, 1216-17. The dissent argues at length that we have conjured up this harm element out of whole cloth, see Dissent at p. 1234, but it comes directly from several of the cases about "unprotected” speech. See, e.g., Chaplinsky,
. If Judge Bybee is correct, the opinion in this case would need to be no more titan a few paragraphs in length. See Dissent at pp. 1231-32. Starting with the premise that false statements are unprotected, he believes it therefore follows that the First Amendment presumptively does not apply. He takes one step back to consider briefly whether there is any need to protect the particular false statements targeted by the Act in order to ensure robust political speech, and seeing none, concludes there is no First Amendment issue. The opinion would end there.
Of course, the First Amendment requires more. That is why even in "unprotected” speech cases, the First Amendment analysis is nonetheless rigorous. See Sullivan,
. We are not persuaded that Hoffman v. Capital Cities/ABC, Inc.,
. Indeed, Congress and other organizations already make such lists publicly available. See Congressional Medal of Honor Society, Recipients, http://www.cmohs.org (last accessed Mar. 31, 2010); Congressional Medal of Honor Foundation, http://www. cmohfoundation.org (last accessed Mar. 31, 2010).
. Clipper Exxpress supports the cautionary holding we reach today. In that case, we explained:
The first amendment has not been interpreted to preclude liability for false statements. For example, defamatory statements can be made the basis for liability. 18 U.S.C. § 1001 imposes criminal penalties for knowingly and wilfully concealing or misrepresenting material facts before any department or agency of the United States. Courts uniformly punish perjury. As the Supreme Court stated in [Gertz,418 U.S. at 340 ,94 S.Ct. 2997 ], "there is no constitutional value in false statements of fact.” Contrary to defendants’ assertions, there is simply no basis to hold that deliberately misrepresenting facts to an administrative body for anticompetitive purposes enjoys blanket first amendment protection.
. While it may seem unlikely anything but the most egregious violations of the Act would be prosecuted, we do not determine the constitutionality of the Act based on our assumptions of how prosecutors will, in their discretion, enforce it. See Stevens,
. The “clear and present danger” rule has long been criticized as being insufficiently protective of First Amendment freedoms when it comes to seditious and some other forms of speech. See Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 910-12 (1963). Indeed, the holding of Schenck itself, in which the Court upheld a prosecution for discouraging military enlistment, was accompanied by a strong dissent. However, our purpose here is only to articulate minimum requirements that must be met before a false statement of fact can be removed from First Amendment protection under existing precedents. Some false statements of fact made with scienter
. Judge Bybee emphasizes our failure to identify any other unconstitutional applications of the Act. Of course, we cannot identify other invalid applications because Alvarez's prosecution is the first case brought under the Act in its current form. The second prosecution we know of, United States v. Strandlof, No. 09-cr-00497-REB,
Dissenting Opinion
dissenting:
Xavier Alvarez, a California public official, stood in a public meeting and announced that he was a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. Alvarez was lying on all counts. He pleaded guilty to violating the Stolen Valor Act of 2005 (“Act”), which punishes a person who “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U.S.C. § 704(b). He now challenges his conviction on First Amendment grounds.
In its recent decision in United States v. Stevens, — U.S.-,
For more than six decades, the Court has recognized that “false statements of fact ... belong to th[e] category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ” Gertz v. Robert Welch, Inc.,
Despite the clarity and consistency of the Supreme Court’s insistence that false statements of fact (or “false statements”) generally fall outside First Amendment protection, the majority somehow manages to “find no authority holding that false factual speech, as a general category unto itself, is among [the historically unprotected classes of speech],” Maj. Op. at 1206 (emphasis added), and concludes that “we presumptively protect ... false statements,” id. at 1217. The majority then moves from this faulty principle to an even more remarkable one: after repeating the Court’s statement in Garrison that “ ‘the knoivingly false statement ... do[es] not enjoy constitutional protection,’ ” Maj. Op. at 1207 (alteration and ellipsis in original) (quoting Garrison,
I would hold that the Act is constitutional as applied to Alvarez and that the Act is not unconstitutionally overbroad. Because the majority has rewritten established First Amendment law, I respectfully dissent.
I
Before turning to Alvarez’s as-applied and facial challenges and the majority’s errors with respect to the particular elements of this case, I am going to begin by discussing the First Amendment framework under which the Supreme Court analyzes false statements of fact, which involves a general rule and a series of exceptions. I then explain why I think the majority has misread the cases and, in the process, turned the exceptions into the rule and the rule into an exception.
A
The First Amendment states, in relevant part: “Congress shall make no law ... abridging the freedom of speech.... ” U.S. Const, amend. I. “As a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, — U.S. -,
But not all speech is entitled to First Amendment protection. Rather, “[t]here
“Defamation” as a class of speech falls within the unprotected category of speech that the Court has referred to as “false statements of fact.” Gertz v. Robert Welch, Inc.,
Thus, the general rule is that false statements of fact are not protected by the First Amendment.
Consistent with the principle set forth in New York Times, the Court held, in Garrison v. Louisiana,
There is, however, an important caveat to the principle that knowingly false statements of fact are not entitled to constitutional protection. See Maj. Op. at 1213-14. The Court has recognized that some statements that, literally read, are technically “knowingly false” may be “no more than rhetorical hyperbole,” Greenbelt Coop. Publ’g Ass’n v. Bresler,
In sum, the Supreme Court’s jurisprudence on false statements of fact involves a general rule with certain exceptions and exceptions-to-exceptions. In general, “there is no constitutional value in false statements of fact,” and so “the erroneous statement of fact is not worthy of constitutional protection.” Gertz,
B
Notwithstanding the Court’s pronouncements on the unprotected status of false statements of fact, the majority “fínd[s] no authority holding that false factual speech, as a general category unto itself, is among [the historically unprotected classes of speech],” Maj. Op. at 1206, and concludes that “we presumptively protect ... false statements,” id. at 1217. The majority believes that, when the Supreme Court has said that “false statements of fact” are unprotected by the First Amendment, what the Court actually meant was that defamation is unprotected by the First Amendment. See id. at 1208 (“[W]e believe the historical category of unprotected speech identified in Gertz and related law is defamation, not all factual speech.”). From this premise, and after refusing to “extend” the unprotected category of speech (defamation) to false statements generally, id. at 1208, the majority suggests that false statements of fact are generally entitled to full constitutional protection, even if they are knowingly false, unless they are defamatory, fraudulent, or integral to criminal conduct, see id. at 1211-13.
The majority has effectively overruled Gertz and inverted the whole scheme. The Supreme Court has told us consistently that the general rule is that false statements of fact are unprotected, and has carved out certain limited exceptions to this principle in certain contexts. The majority flips this framework around and suggests that false statements of fact are generally unprotected only in contexts like defamation and fraud, and that outside these contexts they are fully protected. See id. at 1213 (“[T]he historical and traditional categories of unprotected false factual speech have thus far included only certain subsets of false factual statements .... ”); id. at 1213 (finding that only “certain subsets of false factual speech have been declared unprotected,” and that “[t]he Act does not fit neatly into any of those ... classes”). In other words, the majority limits the general rule to its exceptions. In my view, the majority is wrong for a number of reasons.
1
As a general matter, the majority’s principle rests on a line of reasoning that I cannot endorse: that our jurisprudence should rest on what we think the Supreme Court “means” rather than what it actually says, and thus, because the Supreme Court means “defamation” when it says “false statements of fact,” only the former represents an unprotected category of speech. The majority even considers it “erroneous[ ]” for me to “rel[y] on Gertz for its statement that false factual speech is valueless and unprotected.” Id. at 1203.
With all due respect, I believe that reliance on Gertz’s statement (and the Court’s numerous other statements to the same effect) is not only far from “erroneous[ ]” but obligatory. We do not have the authority as a lower court to limit the Court’s statements to what we believe they mean rather than what they actually say. Gertz could have used the terms “defamation” or “libel” rather than “false statements of fact” to describe the unprotected category of speech—it presumably knew what these terms mean—but it did not. Because the Court has told us unambiguously that “false statements of fact” are generally unprotected by the First Amendment, this principle should be the starting point for our analysis, not the point for the majority’s departure from the principle.
Even if we had the authority to limit the Supreme Court’s statements to what we think they mean rather than what they actually say, the Supreme Court did (and does) mean that “false statements of fact” are generally unprotected and that (non-satirical and non-theatrical) knowingly false statements of fact are always unprotected. Supreme Court precedent, Ninth Circuit precedent, and logic compel this conclusion.
The Supreme Court has used the same framework for analyzing false statements of fact in cases involving neither defamation nor fraud as it did in New York Times, Garrison, and Gertz; these cases demonstrate that the Court’s statements regarding the general unprotected nature of “false statements of fact” and its even more conclusive statements regarding knowingly false statements of fact apply to cases outside the defamation/fraud context. In these cases involving neither defamation nor fraud, the Court began with the premise that false statements of fact are unprotected, and its entire analysis was directed toward deciding whether the application of New York Times’s “actual malice” standard was necessary in that case to protect speech that matters. Although the Court at times decided that the non-defamation case before it was such a case where New York Times’s “actual standard” was necessary, it was careful to emphasize, consistent with Garrison, that false statements made with actual malice fall outside of First Amendment protection. In other words, the only reason that there was even a need for discussion was because the statement in question was arguably made without “actual malice”; if the statement in question had been clearly uttered with actual malice, the statement would be unprotected irrespective of whether New York Times applied.
In Time, Inc. v. Hill,
And in Pickering v. Board of Education,
Nothing in the Court’s recent decision in Stevens is to the contrary. The majority believes that, “[s]ince the Stevens Court saw fit to name defamation specifically, rather than false statements of fact generally, as the historical category excluded from constitutional protection, ... the historical category of unprotected speech identified in Gertz and related law is defamation, not all factual speech.” Maj. Op. at 1223. But Stevens’s use of the word “defamation” is nothing new. As far back as Chaplinsky, the Court has frequently used the words “defamation” and “libel” to describe one of the categories of unprotected speech. See
Similar considerations demonstrate why the majority is misguided in relying upon Stevens’s statement that “ ‘[o]ur decisions [following Chaplinsky ] cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.’ ” Maj. Op. at 1209 (second alteration in original) (quoting Stevens,
Our own cases are in accord with the principle that false statements of fact (not just defamatory or fraudulent false statements) are generally unprotected by the First Amendment, although we have recognized that “constitutional protection is afforded some false statements.” Johnson v. Multnomah County,
In Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc.,
More recently, in Hoffman v. Capital Cities/ABC, Inc.,
3
Although I believe that it is clear that the Supreme Court’s statements regarding false statements of fact extend outside of the defamation and fraud context, I nevertheless find it necessary to respond to the majority’s misguided “bona fide harm” theory. The majority asserts that the Supreme Court has extended the New York Times-Gamson-Gertz framework only to false statements “likely to cause a bona fide harm,” such as those that constitute fraud. Maj. Op. at 1211. In other words, the majority suggests that a false statement loses First Amendment protection only if it is likely to cause a cognizable—• indeed, “irreparable”'—-harm. Id. at 1207. Based on this premise, the majority might assert that the Court applied the New York Times-Garrisonr-Gertz framework in Time, Pickering, Clipper Exxpress, and Hoffman because the false statements in those cases were likely to cause a cognizable harm, but the false statements punished by the Stolen Valor Act are fully protected because these statements do not generally produce what the majority considers to be a “bona fide harm.” See id. at 1212 n. 12.1 respectfully disagree.
a
The likelihood of a “bona fide harm” has nothing to do with whether a category of speech loses First Amendment protection. Stevens rejected the notion that the First Amendment protection afforded a class of speech depends on a consideration of the “societal costs” of the class of speech.
From 1791 to the present, ... the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never include[d] a freedom to disregard these traditional limitations. These historic and traditional categories long familiar to the bar ... are well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.
Id. at 1584 (emphases added) (quotation marks and citations omitted) (alteration in original); see also id. at 1586 (noting that
I agree with the majority that the Court’s statements in this regard cannot be interpreted as “absolute proposition^],” Maj. Op. at 1202-03, because the Court has established that, although “false statements may be unprotected for their own sake,” BE & K,
b
The Court’s obscenity jurisprudence is an embarrassment to the majority’s newly-minted “harm” requirement. The Court has long held that obscene speech is not protected by the First Amendment, see Chaplinsky,
[W]e now confine the permissible scope of [obscenity] regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.
Miller,
We might say, of course, that obscenity is generally harmful, or that obscenity has traditionally been thought to be harmful given that obscenity regulations represent a legislative determination that obscene materials generally degrade our morals or endanger public safety. But the majority holds the Stolen Valor Act unconstitutional because it does not require proof that any particular statement causes harm. While acknowledging Congress’s finding that false claims like Alvarez’s “damage the reputation and meaning of [military] decorations and medals,” Stolen Valor Act of 2005, Pub.L. No. 109-437, § 2(1), 120 Stat. 3266 (2005) (the “Findings”); Maj. Op. at 1209-10, the majority emphasizes that the Findings “do not actually limit the application of the Act” because “[t]here is no requirement in the Act that the government bear the burden to prove that the defendant’s speech or writing proximately caused damage to the reputation and meaning of military decorations and medals,” Maj. Op. at 1210 (second emphasis added).
The problem is that this is true of obscenity regulations as well; although obscenity laws are generally targeted at some cognizable harm, they do not explicitly require that the government even identify, much less prove, a cognizable harm in every case. Indeed, it was of no concern to the Court that “there [wa]s no conclusive proof of a connection between antisocial behavior and obscene material,” because “[n]othing in the Constitution prohibits a State from reaching such a conclusion and acting on it legislatively simply because there [wa]s no conclusive evidence or empirical data.” Paris Adult Theatre I v. Slaton,
c
The majority places great weight on the Court’s decision in Schenck v. United States,
The majority is wrong. The Court has never used the “clear and present danger” test to determine whether a category of
Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase “clear and present danger.” Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.
Id. at 266,
Schenck dealt with a content-based restriction of a category of speech that would now be considered clearly entitled to First Amendment protection—indeed, there are few categories of speech more valuable in terms of First Amendment principles than opinions critical of the government on matters of national security, such as military conscription. See Schenck,
d
Finally, the majority’s reliance on statutes criminalizing fraud and similar crimes, see Maj. Op. at 1211-13, is both flawed and puzzling. Although fraud statutes generally require that the fraudulent statement cause an injury, and although the Supreme Court has held that fraudulent statements are not entitled to First Amendment protection, see, e.g., Ill. ex rel. Madigan v. Telemarketing Assocs., Inc.,
In sum, the better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact—as a general category—fall outside of First Amendment protection except in certain contexts where such protection is necessary “to protect speech that matters.” If a false statement does not fall within one of these exceptions, the general rule applies. And even in the exceptional contexts, a false statement that is neither satirical nor theatrical is unprotected if it is made with knowledge or reckless disregard of falsity.
II
With these principles in mind, I now turn to Alvarez’s as-applied challenge.
A
In a public meeting, Alvarez stated: “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.” Alvarez does not deny that his statement that he received the Congressional Medal of Hon- or was a statement of fact, that this statement was false, and that he made the statement with full knowledge of the statement’s falsity. He does not attempt to defend his actions as hyperbole or imaginative expression, nor does he claim that he was misunderstood in context. Alvarez also knew when he uttered the statement that his claim to have been a Marine was false, that he had not served in any branch of the armed forces for twenty-five years, and that no one had shot and wounded him while-he was in the service of his country.
All things considered, Alvarez’s self-introduction was neither a slip of the tongue nor a theatrical performance; it was simply a lie. Under the rules announced in Garrison and its progeny, Alvarez’s knowingly false statement is excluded
B
The Supreme Court’s clear rules are sufficient to doom Alvarez’s as-applied challenge,
C
The majority provides two main reasons for why the Act is unconstitutional as applied to Alvarez. First, the majority reasons that the Act is unconstitutional because it “does not require a malicious violation, nor does it contain any other requirement or element of scienter.... Without a scienter requirement to limit the Act’s application, the statute raises serious constitutional concerns ... because the First Amendment clearly prohibits criminally punishing negligent speech about matters of public concern.” Maj. Op. at 1209 (citing Gertz,
For one thing, Gertz does not stand for this proposition; in Gertz, the Supreme Court “refus[ed] to extend the New York Times privilege to defamation of private individuals,” even though the subject matter was a matter of public concern. Gertz,
Second, the majority holds that the Act is unconstitutional because it does not require that the false statement proximately cause an “irreparable ” harm. Maj. Op. at 1207. As discussed above, the First Amendment contains no such requirement, see Part I.B.3, supra, and thus the Act’s failure to require harm is irrelevant to the determination of whether it is unconstitutional.
But even if the First Amendment demanded some proof of harm, the majority has supplied no reason to question Congress’s determination that “[fraudulent claims surrounding the receipt of ... [military] decorations and medals awarded by the President or the Armed Forces of the United States damage the reputation and meaning of such decorations and medals.” Stolen Valor Act of 2005, Pub.L. No. 109— 437, § 2(1), 120 Stat. 3266 (2006). When George Washington created the Badge of Military Merit, the predecessor to the Purple Heart, he wished to honor those who performed “singularly meritorious action” with “the figure of a heart in purple cloth.” Those who demonstrated “unusual gallantry, ... extraordinary fidelity, and essential service in any way, [would] meet with a due reward.” At the same time, he or
The majority finds Congress’s purpose inadequate because the Act is not expressly limited to statements that cause harm, see Maj. Op. at 1209-10 (“[WJhile the ‘Findings’ identify the injury the Act targets, they do not actually limit the application of the Act.”), and because “[tjhere is no requirement in the Act that the government bear the burden to prove that the defendant’s speech or writing proximately caused damage to the reputation and meaning of military decorations and medals,” id. (emphases added). Because the majority finds “no readily apparent reason for assuming, without specific proof, that the reputation and meaning of military decorations is harmed every time someone lies about having received one,” the majority holds the Act unconstitutional. Id. (emphasis added).
But the government does not have to prove, on a case-by-case basis, that the statement of a single defendant damaged the reputation of a military award. The obscenity cases are again instructive. In Paris Adult Theatre I, the Court rejected the cry for “scientific data ... demonstrating] that exposure to obscene material adversely affects men and women or their society.”
What would Alvarez have had to say to satisfy the majority’s newfound harm standard? The majority itself concedes that Alvarez’s statement was a “deliberate and despicable [lie],” Maj. Op. at 1216, that it was a “worthless, ridiculous, and offensive untruth[ ],” and that Alvarez “was proven to be nothing more than a liar,” id. at 1217. He was indeed “more” than that. The hubris of Alvarez’s claim to have received the Congressional Medal of Honor in 1987 may not be apparent to ordinary Americans, and it may not have been obvious at the joint meeting of the water districts, but it would not have been lost on the men and women who are serving or have served in our armed forces. By his statement, Alvarez claimed status in a most select group: American servicemen who lived to receive the Congressional Medal of Honor. No living soldier has received the Congressional Medal of Honor since the Vietnam War. Greg Jaffe and Craig Whitlock, Pentagon Recommends Medal of Honor for a Living Soldier, The Washington Post, July 1, 2010, available at http://www. washingtonpost.com/wp-dyn/content/
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Alvarez’s knowing lie is not entitled to constitutional protection. Thus, there is no need to subject the Stolen Valor Act to strict scrutiny. I would hold that the Stolen Valor Act is constitutional as applied to him. I turn now to Alvarez’s facial challenge.
Ill
The majority holds that the Act is “facially invalid under the First Amendment.” Maj. Op. at 1217. Some of the majority’s analysis sounds in the overbreadth doctrine, but because the majority does not actually apply this doctrine, its facial holding is presumably based on the reasoning “that no set of circumstances exists under which the Act would be valid.” United States v. Salerno,
The overbreadth doctrine is, literally, an extraordinary doctrine, because it represents an exception to the usual rules of Article III standing. Ordinarily, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick,
In Broadrick, the Court announced what has become the fundamental rule in the First Amendment overbreadth analysis: in order for a statute to be held unconstitutionally overbroad, “the overbreadth of [the] statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615,
In sum, the party asserting the over-breadth challenge has a difficult burden to satisfy: he must demonstrate that the statute is substantially overbroad both in an absolute sense and relative to the legitimate sweep of the statute, id., and must make such a showing based both on the text of the statute and on actual fact, N.Y. State Club,
Athough the majority opinion does not formally apply overbreadth analysis to the Stolen Valor Act, it does provide a number of examples of speech potentially reached by the Act that are not present in Avarez’s particular case. Thus, I will conduct my overbreadth analysis using these examples and those provided by Avarez. Based on the majority’s and Avarez’s examples, the Stolen Valor Act could arguably be held unconstitutionally overbroad for two main reasons: (1) the Act does not contain a scienter requirement and might, therefore, reach inadvertent violations of
A
The majority proclaims that the Act is unconstitutional because it “does not require a malicious violation, nor does it contain any other requirement or element of scienter.... Without a scienter requirement to limit the Act’s application, the statute raises serious constitutional concerns ... because the First Amendment clearly prohibits criminally punishing negligent speech about matters of public concern.” Maj. Op. at 1209 (citing Gertz,
However, such mistaken false statements do not present a constitutional problem for the Act. First, the Act is amenable to a reasonable construction that precludes its application to these kinds of statements. Second, even if the Act could be interpreted to reach these kinds of mistaken false statements, and even if such statements were entitled to constitutional protection (which is not clear), this potential sweep of the Act does not even come close to “substantial” overbreadth.
1
The first step in the overbreadth analysis is to determine whether the Stolen Valor Act actually covers statements that can be mistakenly interpreted to be false claims of military awards. See Williams,
For example, Congress has made no attempt to preempt the use of the phrase “medal of honor,” and any number of universities and high schools award some kind of a “medal of honor.” The recipients may truthfully represent themselves as “medal of honor” winners, but no one should fear prosecution under the Stolen Valor Act. Congress was quite careful to define “decoration[s] or medal[s]” as those “authorized by Congress for the Armed Forces of the United States.” 18 U.S.C. § 704(b). And in the special case of the Medal of Honor, Congress described it as “a Congressional Medal of Honor”—presumably to distinguish it from other medals of hon- or—and defined it as “a medal of honor awarded under [10 U.S.C. §§ 3741, 6241, or 8741, or 14 U.S.C. § 491].” 18 U.S.C. § 704(c)(2)(A) (emphasis added). No one reading the Act should have any question that he or she may continue to use the term “medal of honor” to denote those medals of honor awarded by our nation’s educational institutions. The Stolen Valor Act reaches only those who claim to have received the Congressional Medal of Hon- or, as defined in the U.S. Code.
In sum, as long as the Act is correctly applied according to a reasonable interpretation of the word “represents,” it will not sweep in ambiguous statements that can merely be mistakenly interpreted as a false claim of a eongressionally authorized military award. Thus, because a reasonable “limiting construction”—indeed, the most reasonable construction—can be placed on the word “represent” that precludes its application to such statements, the Act is not overbroad in this regard. Broadrick,
2
Even if mistaken false statements were theoretically subject to punishment under the Stolen Valor Act, common sense tells us that such punishment will be extraordinarily rare if not nonexistent, both “in an absolute sense” and “relative to the statute’s plainly legitimate sweep.” Williams,
Any overbreadth of the Act is also far from substantial “relative to the statute’s plainly legitimate sweep,” Williams,
This case falls far short of the level of overbreadth that the Supreme Court has found to be “substantial.” In Ashcroft v. Free Speech Coalition,
More recently, in Stevens, the Court addressed a statute establishing a criminal penalty for anyone who knowingly “create[d], s[old], or possesse[d] a depiction of animal cruelty,” where a “depiction of animal cruelty” was defined as one “in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.”
The statutes that we have held to be facially overbroad have also been significantly broader than the Stolen Valor Act. In Wurtz, for example, we addressed the constitutionality of Montana’s “intimidation statute,” which punished both constitutionally proscribable threats and those protected by the First Amendment.
These cases illustrate the kind of significant overbreadth that satisfies the Broadrick standard. If the requirement of substantial overbreadth is to have any meaning, it compels the conclusion that, because there is virtually no potential for punishment of mistaken claims of military awards, the Act is not unconstitutionally overbroad in this regard.
B
Second, the majority argues that the Act might be applied to satire or other kinds of imaginative expression—such as a person who claims he has received a military decoration sarcastically, or while playing a role in a play or movie—and thus criminalizes even those statements that are plainly incredible and not worthy of actual belief. See Maj. Op. at 1213-14. The majority states: “[Wjhether it be method actors getting into character, satirists being ironic or sarcastic, poets using hyperbole, or authors crafting a story, creative persons often make factual statements or assertions which, as they are fully aware, are entirely untrue.” Id. at 1214. The majority presents examples of “[s]atirical entertainment such as The Onion, The Daily Show, and The Colbert Report.” Id. at 1213.
Although the Supreme Court has never so held, I am quite confident that satirical or theatrical statements claiming receipt of a military award are protected under the First Amendment. Provocative statements by satirists are not generally thought to come within the class of unprotected “false statements of fact” because these statements “could not reasonably [be] interpreted as stating actual facts.” Hustler,
But claims about military decorations and medals made in an artistic context are not subject to prosecution under the most reasonable construction of the Act. Once again, “[f]acial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Broadrick,
If, for example, Stephen Colbert mocked a president’s statement that he had “won” an ongoing war by proclaiming, sarcastically, “Right—and I won the Congression
Lt. Dan: They gave you the Congressional Medal of Honor.
Forrest: Now that’s Lieutenant Dan. Lieutenant Dan!
Lt. Dan: They gave you the Congressional Medal of Honor!
Forrest: Yes sir, they sure did.
Lt. Dan: They gave you[,] an imbecile, a moron who goes on television and makes a fool out of himself in front of the whole damn country, the Congressional Medal of Honor.
Forrest: Yes sir.
Forrest Gzvmp (1994), available at http:// www.generationterrorists.com/quotes/.html (last visited July 6, 2010); see also The Karate Kid (1984) (representing that Mr. Miyagi, played by actor Pat Morita, had received the Congressional Medal of Hon- or for his heroism in World War II); The Next Karate Kid (1994) (showing Mr. Miyagi wearing the Congressional Medal of Honor). But we all understood the context: Tom Hanks qua Forrest Gump received the Medal of Honor. Forrest Gump cannot be charged with violating the Act and, so far as I am aware, Tom Hanks qua Tom Hanks has never “represented himself’ as a Medal of Honor recipient. I do not believe it realistic that anyone would think to accuse Colbert or Hanks of violating the Stolen Valor Act in these contexts. Assuming, as I must, that the Act will be applied with some modicum of common sense, it does not reach satire or imaginative expression.
I would conclude that the Act is reasonably susceptible to a limiting construction that eliminates any potential overbreadth and, even if the Act did have some degree of overbreadth, this overbreadth is not “substantial.” I would hold that the Act is not overbroad and therefore facially constitutional.
IV
The majority’s opinion is provocative, to say the least. It effectively overrules Gertz and its progeny and holds that false statements of fact generally receive First Amendment protection. It effectively overrules Garrison by holding that even knowingly false statements of fact are protected. It holds that a false statement of fact must produce “irreparable harm” in order to lose First Amendment protection, thus wholly confusing the concept of unprotected speech and calling into question the Supreme Court’s obscenity jurisprudence. And it strikes down an act of Congress on its face despite the most important consideration to this case: no person has ever been subjected to an unconstitutional prosecution under the Stolen Valor Act and, under any reasonable interpretation of the Act, it is extremely unlikely that anyone ever will be.
I respectfully dissent.
. The majority disagrees with my characterization of Gertz s principle as a “general rule” and of New York Times Co. v. Sullivan,
The majority has misunderstood the concept of unprotected speech. It is not true, as the majority states, that "we presumptively protect all speech against government interference.” Id. The First Amendment does not protect all "speech” but rather "the freedom of speech,” which does not include those categories of speech traditionally considered outside of First Amendment protection. See John Paul Stevens, The Freedom of Speech, 102 YALE L.J. 1293, 1296 (1993) ("I emphasize the word 'the' as used in the term 'the freedom of speech’ because the definite article suggests that the draftsmen intended to immunize a previously identified category or subset of speech. That category could not have been coextensive with the category of oral communications that are commonly described as 'speech’ in ordinary usage.... The Amendment has never been understood to protect all oral communication.” (emphasis added)). Thus, the lack of protection afforded false statements of fact is no more of an "exception” to the First Amendment than the lack of First Amendment protection afforded the pulling of a gun trigger. Neither of these activities is considered part of "the freedom of speech,” so neither should be characterized as an exception to the First Amendment.
. Although the Court in Gertz "allow[ed] the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times," the Court held that damages are limited to "compensation for actual injury.” Gertz,
. The majority’s reliance on Justice Stevens’s opinion in Nike, Inc. v. Kasky,
. Although BE & K and Bill Johnsons did not involve the freedom of speech per se but rather the First Amendment right to petition, these decisions are further examples of the Court's reliance on Gertz s principle outside of the defamation context. See BE & K,
. The majority is "not persuaded that Hoffman ... is anything more than a variation on defamation jurisprudence." Maj. Op. at 1208-09 n. 10. But although the false statements in Hoffman were arguably more like defamation than the false statements in Alvarez’s case, Hoffman and similar cases never
. I return to this point in Part II.C.
. Numerous statutes are called into question by the majority’s opinion. The following are just some of the statutes that punish false statements and do not appear to require proof of harm (including that the false statement be "material”): 18 U.S.C. § 1011 (punishing "any false statement ... relating to the sale of any mortgage, to any Federal land bank”); 18 U.S.C. § 1015(a) (punishing "any false statement under oath, in any case, proceeding, or matter relating to ... naturalization, citizenship, or registry of aliens”); 18 U.S.C. § 1026
. I emphasize the fact that the Supreme Court has affhmatively excluded knowingly false statements from First Amendment protection rather than simply failed to include them. The majority argues that, "even if one agrees with the dissent that Gertz and its progeny require[] the historical category of unprotected speech at issue here [to] be defined as knowingly false factual speech per se, that is simply not enough to make the [Stolen Valor] Act immune from First Amendment analysis,” and that we would need to "guess what rule the Court would adopt for [knowingly false statements].” Maj. Op. at 1208 n. 9. The majority seems to suggest that the Supreme Court has not yet decided what degree of constitutional protection will be afforded knowingly false statements of fact. For the reasons I have explained above, I think the matter is quite to the contrary.
. The majority is “concern[ed] ... because of [the Act’s] potential for setting a precedent whereby the government may proscribe speech solely because it is a lie.” Maj. Op. at 1200. The majority fears that, under my interpretation, the government could “criminaliz[e] lying about one’s height, weight, age, or financial status on match.com or facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway.” Maj. Op. at 1200. Alvarez provides a similar parade of horribles, arguing that Congress could prohibit lying to one's children about the existence of Santa Claus.
But the fact that we might find the majority’s and Alvarez’s hypothetical laws troubling from a policy perspective is irrelevant to the First Amendment question. Garrison, Gertz, and Time could not have been clearer: knowing lies are unprotected by the First Amendment. Until the Supreme Court tells us otherwise, the proper target for the majority’s concerns is the legislature, not this court.
. I agree with the majority that if the Stolen Valor Act were subjected to strict scrutiny, the Act would not satisfy this test. See Maj. Op. at 1215-17. I simply do not agree that the Act should be subjected to strict scrutiny.
.The majority points out that, if I am correct, "the opinion in this case would need be no more than a few paragraphs in length,” and asserts that "the First Amendment requires more.” Maj. Op. at 1208 n. 9. The majority is correct that, in the Supreme Court’s cases involving false statements of fact, "the First Amendment analysis [wa]s ... rigorous,” id., in spite of the general unprotected nature of false statements of fact. But as discussed above, this "rigor” was necessary only to determine whether the Court was faced with one of the unique situations where New York Times's "actual malice” standard was necessary in order to protect speech that matters. See, e.g., Pickering,
. Unlike the government, I do not propose that a scienter requirement be read into the Act.
. Indeed, because the majority does not hold that the Stolen Valor Act is unconstitutionally overbroad, it is unclear what relevance the Act's lack of a scienter requirement has even to the majority's holding with respect to Alvarez's facial challenge.
. The government might well be able to supply further evidence of the harm caused by false claims of military awards. The government did not brief this matter because Alvarez never argued that false statements of fact fall outside of First Amendment protection only if they produce a cognizable harm. Given the novelty of the majority's holding, it is not surprising that the government did not anticipate it.
. Broadrick dealt with a regulation of activities that had a First Amendment component but that were not "pure speech.”
. Another conceivable "negligent” or "mistaken” claim is one in which the speaker mistakenly believes that he has won a military award, but I do not consider it realistic that a person (let alone a substantial number of people) would mistakenly believe that he has been awarded a “decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U.S.C. § 704(b).
. Although a reasonable limiting construction saves a statute from being held facially overbroad, the government's promise of reasonable prosecutorial discretion does not. See Stevens,