UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA v. XAVIER ALVAREZ
ORDER DENYING PETITION FOR PANEL REHEARING AND REHEARING EN BANC
Filed March 21, 2011
Nelson and M. Smith have
voted to deny the petition for panel rehearing. Judge M.
Smith has voted to deny the petition for rehearing en banc,
and Judge T.G. Nelson has so recommended. Judge Bybee has voted
to grant the petition for panel rehearing and
rehearing en banc. The full court was advised of the
petition for rehearing en banc. A judge requested a vote on whether
to rehear the matter en banc, and the matter failed to receive
a majority of the votes of the nonrecused active judges in
favor of en banc consideration.
The petition for panel rehearing and rehearing en banc is DENIED.
M. SMITH, Circuit Judge, with whom KOZINSKI, Chief Judge, joins, concurring in the denial of rehearing en banc:
This case presents two issues: (1) Does the government bear the burden of proof to show that speech forbidden by the Stolen Valor Act (the Act), 18 U.S.C. § 704(b), is unprotected by the First Amendment, or does a criminal defendant charged under the Act bear the burden of proof to show that the targeted speech is protected by the First Amendment? (2) Is the speech forbidden by the Act protected by the First Amendment, or does it fall into one of the “well-defined and narrowly limited classes of speech” that is unprotected by the First Amendment?
The Act provides:
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 increased to one year if the decoration involved is the 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).
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 introduced himself, stating “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.” With the exception of “I’m still around,” Alvarez’s statement was a series of bizarre lies, and Alvarez was indicted and convicted for falsely claiming that he had been awarded the Medal of Honor....
The first dispute between the majority and the Dissenters asks who bears the burden of proof in this case. The Dissenters, drawing almost entirely on defamation case law, suggest that we should invert the ordinary First Amendment burden in all cases involving false statements, even if criminal charges are involved. But this approach inverts the burdens of proof and persuasion mandated by the Supreme Court by requiring criminal defendants to show that their speech covered by the Act falls into the categories of speech protected by the First Amendment, instead of requiring the government to prove that the targeted speech is not so protected. Ordinarily, “[w]hen the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions,” and “the risk of nonpersuasion . . . must rest with the Government, not with the citizen.” This general rule applies with even more force in criminal cases such as this one, because the Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”
In addressing the second question, the Dissenters rely heavily on isolated comments made by Supreme Court Justices in First Amendment cases without examining the context in which those statements were made, or the actual holdings in those cases. In each of these opinions, the Court has made clear that false speech is not subject to a blanket exemption from constitutional protection....
New York Times Co. v. Sullivan (1964) held that libel laws are unconstitutional unless they include a scienter element. In reaching this conclusion, the Court asked whether speech “forfeits [First Amendment] protection by the falsity of some of its factual statements and by its alleged defamation of respondent,” and held, unequivocally, that it does not....The Court accordingly concluded that “[t]hat 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.” The Court added that “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’ ”
Amendment itself reflects a
judgment by the American people that the benefits of its
restrictions on the Government outweigh the costs. Our Constitution
forecloses any attempt to revise that judgment simply on the basis
that some speech is not worth it....”
The Dissenters may be correct that Congress may someday be able to redress the “reputational harm to the military” caused by conduct like Alvarez’s. But “[a]s 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.” The Dissenters rely on the unsupportable doctrinal premise that false speech is categorically subject to government regulation and prohibition....
Chief Judge KOZINSKI, concurring in the denial of rehearing en banc:
According to our dissenting colleagues, “non-satirical and non-theatrical[ ] knowingly false statements of fact are always unprotected” by the First Amendment. Not “often,” not “sometimes,” but always. Not “if the government has an important interest” nor “if someone’s harmed” nor “if it’s made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.
So what, exactly, does the dissenters’ ever-truthful utopia look like? In a word: terrifying. If false factual statements are unprotected, then the government can prosecute not only the man who tells tall tales of winning the Congressional Medal of Honor, but also the Jew hater who falsely claims he’s Jewish or the dentist who assures you it won’t hurt a bit. Phrases such as “I’m working late tonight, hunny,” “I got stuck in traffic” and “I didn’t inhale” could all be made into crimes. Without the robust protections of the First Amendment, the white lies, exaggerations and deceptions that are an integral part of human intercourse would become targets of censorship, subject only to the rubber stamp known as “rational basis review.”
What the dissenters seem to forget is that Alvarez was convicted for pure speech. And when it comes to pure speech, truth is not the sine qua non of First Amendment protection. That the government can constitutionally regulate some narrow categories of false speech—such as false advertising, defamation and fraud—doesn’t mean that all such speech falls outside the First Amendment’s bounds. As the Supreme Court has cautioned, “In this field every person must be his own watchman for the truth, because the forefathers did not trust any government to separate the true from the false for us.”
Yet the regime the dissenters agitate for today—one that criminalizes pure speech simply because it’s false—leaves wide areas of public discourse to the mercies of the truth police. Alvarez’s conviction is especially troubling because he is being punished for speaking about himself, the kind of speech that is intimately bound up with a particularly important First Amendment purpose: human self-expression. As Justice Marshall explained: The First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression. Such expression is an integral part of the development of ideas and a sense of identity. To suppress expression is to reject the basic human desire for recognition and affront the individual’s self worth and dignity....
Speaking about oneself is precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tall tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all.
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
And we don’t just talk the talk, we walk the walk, as reflected by the popularity of plastic surgery, elevator shoes, wood veneer paneling, cubic zirconia, toupees, artificial turf and cross-dressing. Last year, Americans spent $40 billion on cosmetics—an industry devoted almost entirely to helping people deceive each other about their appearance. It doesn’t matter whether we think that such lies are despicable or cause more harm than good. An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal and when to deceive. Of course, lies are often disbelieved or discovered, and that too is part of the pull and tug of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are.
How can you develop a reputation as a straight shooter if lying is not an option? Even if untruthful speech were not valuable for its own sake, its protection is clearly required to give breathing room to truthful self-expression, which is unequivocally protected by the First Amendment. See New York Times Co. v. Sullivan (1964). Americans tell somewhere between two and fifty lies each day. If all untruthful speech is unprotected, as the dissenters claim, we could all be made into criminals, depending on which lies those making the laws find offensive. And we would have to censor our speech to avoid the risk of prosecution for saying something that turns out to be false. The First Amendment does not tolerate giving the government such power.
Judge O’Scannlain tells us not to worry, because to say “[t]hat false statements of fact are always unprotected in themselves is not to say that such statements are always subject to prohibition.” This is double talk. If a statement is “always unprotected” by the First Amendment then it’s presumptively subject to regulation. That it may enjoy derivative protection by osmosis from “other speech that matters” is cold comfort to those who have no way of knowing in advance whether two judges of this court will recognize that relationship in any particular instance.
But it gets worse. Confronted with some of the many ways in which false speech permeates our discourse, Judge O’Scannlain comes up with new categories of exceptions to his regime—“expressions of emotion or sensation,” “predictions or plans,” “exaggerations” and “playful fancy.” “Such statements,” we are told, “are not even implicated” by the dissenters’ analysis because they are not “falsifiable.” But this is patently not true. If you tell a girl you love her in the evening and then tell your roommate she’s a bimbo the next morning, and the two compare notes, someone’s going to call you a liar. And if you tell the Social Security Commissioner, “I have disabling back pain,” and are then discovered jogging, golfing and jet-skiing, it will be no defense that you were merely expressing a “sensation” that is “non-falsifiable.” Judge O’Scannlain also turns a tin ear to the complexity of human communication. “I just haven’t met the right woman,” could be a statement of opinion, as my colleague suggests, but more likely is a false affirmation of heterosexuality. And where, exactly, is the dividing line between an “exaggeration”—which Judge O’Scannlain seems to think always gets constitutional protection—and a lie, which never does?
The dissent dismisses these difficulties by creating a doctrine that is so complex, ad hoc and subjective that no one but the author can say with assurance what side of the line particular speech falls on. This not only runs smack up against the Supreme Court’s admonition against taking an “ ‘ad hoc,’ ‘freewheeling,’ ‘case-by-case’ approach” in the First Amendment area, but results in the courts themselves . . . becom[ing] inadvertent censors.” And, as Judge Smith elegantly demonstrates, Judge O’Scannlain’s approach compounds the danger of arbitrariness by “invert[ing] the ordinary First Amendment burden” in requiring the speaker—even in the case of a criminal defendant—to prove that his speech deserves protection. Free speech simply cannot survive the kind of subjective and unpredictable regime envisioned by the dissenters.
Judge O’Scannlain is right that the scenario I describe is “far removed from the one in which we actually live,” but only because the dissenters didn’t prevail. Had they done so, we may very well have come to live in a world more like a Hollywood horror film than the country we know and adore. Perhaps sensing the danger of the absolutist approach, Judge Gould proposes a narrower rule, one that would carve away First Amendment protections for speech concerning (1) some (2) military matters (3) where the interest of the speaker is low. Judge Gould’s dissent illustrates the dangers of announcing a hypothetical rule without the need to apply it to a concrete case. As I show below, all three legs supporting Judge Gould’s theory buckle as soon as weight is placed on them....
He first posits that “the power of Congress [in dealing with military matters] is necessarily strong,” but Congress has strong powers in many areas, including immigration and naturalization. Judge Gould doesn’t explain why congressional power vis-a-vis the military is so much more important than these other strong congressional powers, so as to merit its own First Amendment hall pass. Or, perhaps Judge Gould means to suggest that there should be a similar exception for, say, lying about being an immigrant or a bankrupt—which would make his exception far broader than he acknowledges.
Second, as Judge Gould recognizes, not all speech concerning military matters is unprotected by the First Amendment, else Congress could pretty much have banned the entire Vietnam protest movement—and no doubt would have. Lying about being a military hero is despicable and may have some impact on the government’s ability to recruit genuine heroes, but it’s hard to understand why it’s so much worse than burning an American flag, displaying a profane word in court, rubbing salt into the fresh wounds of the families of fallen war heroes, suggesting that a revered religious leader commits incest with his mother in an outhouse or publishing military secrets in time of war. Exceptions to categorical rules, once created, are difficult to cabin; the logic of the new rule, like water, finds its own level, and it’s hard to keep it from covering far more than anticipated. Because Judge Gould is vague about the rule he proposes, he doesn’t deal with this difficulty.
Finally, Judge Gould would limit his rule to situations where the speaker and society “lack [a] substantial interest” in the untruthful statement. But how are we to tell which statements do and which ones do not have social utility? The one guiding light of our First Amendment law is that government officials, and courts in particular, are not allowed to make judgments about the value of speech. Pornography is an odd exception, but it’s the only one I’m aware of, and even there judgments are made on a case-by-case basis. I am aware of no context where the legislature is allowed to decide that entire categories of speech can be banned because they are socially useless. This strikes me as an awesome power to confer on government officials, one quite antithetical to the core values of the First Amendment. Judge Gould does not explain why a rule such as the one he proposes would not sound the death knell for the First Amendment as we know it.
Political and self expression lie at the very heart of the First Amendment. If the First Amendment is to mean anything at all, it must mean that people are free to speak about themselves and their country as they see fit without the heavy hand of government to keep them on the straight and narrow. The Stolen Valor Act was enacted with the noble goal of protecting the highest honors given to the men and women of our military, but the freedoms for which they fight include the freedom of speech. The ability to speak openly about yourself, your beliefs and your country is the hallmark of a free nation. Our decision not to rehear this case en banc ensures the First Amendment will retain its vitality for another day—and, hopefully, for always.
O’SCANNLAIN, Circuit Judge, joined by GOULD, BYBEE, CALLAHAN, BEA, IKUTA, and N.R. SMITH, Circuit Judges, dissenting from the denial of rehearing en banc:
In this case, our court invalidates the Stolen Valor Act of 2005—a federal statute that criminalizes the act of lying about having been awarded U.S. military decorations—concluding that the Act runs afoul of the First Amendment. This is the first Court of Appeals decision to consider the constitutionality of the Act, but the court’s opinion is not merely unprecedented; rather, it runs counter to nearly forty years of Supreme Court precedent. Over such time, the Supreme Court has steadfastly instructed that false statements of fact are not protected by the First Amendment. Because neither the court’s application of strict scrutiny nor its ultimate decision accords with Supreme Court guidance, I respectfully dissent from our court’s regrettable denial of rehearing en banc....
In giving strict scrutiny to the Stolen Valor Act, the majority ignored a straightforward aspect of First Amendment law: the right to lie is not a fundamental right under the Constitution. For nearly forty years, the Supreme Court has made this much abundantly clear. In cases concerning regulations of false speech, the Court regularly instructs that “the erroneous statement of fact is not worthy of constitutional protection.”
Under plain application of the Supreme Court’s guidance, the Stolen Valor Act—which criminalizes only false statements of fact—should not undergo the rigor of strict scrutiny review. We reserve such intense scrutiny only for constitutionally protected speech. Yet, upon the novel theory that “we presumptively protect all speech, including false statements,” the majority erroneously subjects the Act to strict scrutiny, and in the process holds unconstitutional a plainly valid act of Congress.
The notion that restrictions upon false speech do not receive strict scrutiny is borne out in the Supreme Court’s analysis in cases involving such speech. The Court routinely begins its review from the foundational premise that false speech “is not worthy of constitutional protection.” From there, the Court assesses whether other speech—i.e., constitutionally protected non-false speech—demands that the particular false statements in question be protected, too. Only then must restrictions on false speech pass heightened scrutiny.
Closer inspection of these cases buttresses the Court’s straightforward words. In Gertz v. Robert Welch, Inc., for example, the Supreme Court began from the premise that “there is no constitutional value in false statements of fact.” The Court went on to consider whether other First Amendment concerns required extending a heightened “actual malice” standard to defamation actions brought by private individuals. Importantly, the Court concluded that free debate does not require such rigorous protection of private defamation, and instead gave states the broad authority to “define for themselves the appropriate standard of liability” for such actions, so long as “they do not impose liability without fault.” The baseline protection against strict liability was necessary, the Court explained, not because the First Amendment shields false statements as a general matter, but because such broad liability would threaten the operations of “the press and broadcast media.” In other words, the Court determined that “speech that matters”—the presence of robust and functional news media—required some minimal protection against liability for publishing erroneous facts....
This same method of analysis—beginning from the presumption that false speech is unprotected and then determining whether some protection is needed for other speech that matters—has been often repeated. For example, in Hustler Magazine v. Falwell, the Court began by noting that “[f]alse statements of fact are particularly valueless.” From there, the Court considered whether the strong interest in public debate required some protection against intentional infliction of emotional distress claims brought by public officials. After an extensive analysis, the Court announced its “considered judgment” that the pivotal role played by satire in “public and political debate” required the extension of an actual malice standard to such claims....
Altogether, upon consideration of both the Supreme Court’s plain statements and the Court’s underlying analysis, we are left with the conclusion that false statements of fact are not protected by the First Amendment, unless it is shown that other “speech that matters” requires such protection. Without more, restrictions upon false statements, as with other areas of unprotected speech, are simply not subject to strict scrutiny review....
The litany of state and federal laws that prohibit false speech without a showing of individualized harm drastically undermine the majority’s insistence that all regulations of false speech must require such a showing. For example, Chapter 47 of Title 18 (named “Fraud and False Statements”), criminalizes a host of false statements, including many without any showing of harm (or even of “materiality”)—and some which do not even contain a scienter requirement. The Supreme Court has rejected the contention that these statutes implicitly require a showing of materiality or harm—and yet the Court did not even consider whether the absence of such a requirement raised First Amendment concerns. And the federal government is far from alone; a quick survey of but a few states within our own circuit underscores just how prevalent prohibitions of false statements are, even without individual harm requirements. See, e.g., Alaska Stat. § 11.56.800(a)(2) (punishing “false report[s] to a peace office that a crime has occurred or is about to occur”); Ariz. Rev. Stat. §907.03 (punishing a knowingly “false report of sexual assault involving a spouse”); Nev. Rev. Stat. § 199.145 (punishing any willful “unqualified statement of that which the person does not know to be true” made underoath); Rev. Code Wash. § 9A.60.070 (punishing knowingly false claims of “a credential issued by an institution of higher education that is accredited,” in promotion of a business or with the intent to obtain employment). It is thus neither out of the ordinary nor constitutionally significant that the Stolen Valor Act does not require a showing of individualized harm....
[E]ven if it were necessary, a requirement that the Act criminalize only statements that effect some harm is easily satisfied. Indeed, Congress has identified the harm at issue: "[f]raudulent 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. The majority admits that “Congress certainly has an interest, even a compelling interest” in preventing such harm. That the Act does not explicitly limit its scope only to those false statements that incur this congressionally identified harm is inconsequential; the underlying point is that all such statements contribute to the harm... It is difficult to see how reputational harm to the military even could be evaluated on an individual basis, and it is no surprise that the Act has not made such a showing an element of the offense. The Act’s general harm provision is both sensible and sufficient. Neither the Constitution nor the Supreme Court has required anything more specific.
Finally, how should one address the bleak dystopia hypothesized by Chief Judge Kozinski? In his view, if we are to take the Supreme Court at its word that false statements of fact are unprotected by the First Amendment, then a variety of white lies, exaggerations, and cosmetic enhancements—and apparently the core of self-expression itself—must fall. Such fears are wholly unfounded and miss the very crux of my disagreement with the majority.
As an initial matter, most of the “lies” that Chief Judge Kozinski postulates are not false statements of fact whatsoever. They are opinions (“Gee you’ve gotten skinny;” “She’s just a friend;” “I just haven’t met the right woman;” “I’m sooo lucky to have a smart boss like you;” “I had too much to drink;” “You’re the greatest living jurist”); expressions of emotion or sensation (“I love opera;” “But I love you so much;” “It’s not you, it’s me;” “My back hurts;” “I’ve got a headache”); predictions or plans (“[I]t won’t hurt a bit;” “I’ll call you about lunch”); exaggerations (“We go way back”); and playful fancy (“There are eight tiny reindeer on the rooftop”). Even if these were to be described—under the loosest possible definition—as statements of fact, they would hardly be falsifiable. Such statements thus are not even implicated by the foregoing discussion of the protections afforded false statements of fact.
More importantly, Chief Judge Kozinski appears to have misunderstood my fundamental disagreement with the majority. That false statements of fact are always unprotected in themselves is not to say that such statements are always subject to prohibition. Quite to the contrary, as I have discussed at length, false statements may often not be prohibited, where it is shown that other, constitutionally protected speech will be stifled as well. For example, Chief Judge Kozinski identifies “[p]olitical and self expression” as “at the very heart of the First Amendment.” And false statements could not uniformly be prohibited without regard to the effect on such forms of expression. But the problem here—and the reason that this case deserves to be reheard en banc—is that the majority never even asked whether speech such as political or self-expression would be harmed by the Stolen Valor Act before diving into strict scrutiny analysis.
Like a Hollywood horror film, Chief Judge Kozinski describes a fictional world that may frighten, but which is far removed from the one in which we actually live.
Because the majority has strayed from the Supreme Court’s clear guidance—and in the process has taken this court’s First Amendment jurisprudence along for the ride—I must respectfully dissent from our court’s regrettable failure to rehear this case en banc.
GOULD, Circuit Judge, dissenting from denial of rehearing en banc:
...I stress that the military context, in which the power of Congress is necessarily strong, together with the lack of any societal utility in tolerating false statements of military valor such as those made by Alvarez, which steal or dilute significant honors bestowed on military heroes, counsel that it’s improper to apply strict scrutiny to invalidate this law on its face....
It remains open for the Supreme Court to clarify its First Amendment law in the context of Alvarez’s challenge to the Stolen Valor Act. For my part, I would distinguish cases with language cutting a different way, while viewing the crux of the issue as this: A rational Congress might think that the quality of military service and instances of award winning heroism will be enhanced to the extent that there aren’t false claims of entitlement to military honors. This interest is a powerful one that a federal court should hesitate to diminish by outlawing the controlling statute on its face. Conversely, Alvarez has no substantial personal interest in lying about his military record, nor is there any substantial societal interest served by letting Alvarez lie about earning awards that he did not receive. I would hold that Congress’s criminalization of making false statements about receiving miliary honors is a “carefully defined” subset of false factual statements not meriting constitutional protection....
We could leave for another day whether an as applied challenge might be permissible on other facts.
Hence I respectfully dissent.