U.S. v. Alvarez

• Decision Date: 21 March 2011
• Docket Number: No. 08–50345.,08–50345.
• Citation: 638 F.3d 666
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Xavier ALVAREZ, aka Javier Alvarez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

638 F.3d 666

11 Cal. Daily Op. Serv. 3387

2011 Daily Journal D.A.R. 4074

UNITED STATES of America, Plaintiff–Appellee,

v.Xavier ALVAREZ, aka Javier Alvarez, Defendant–Appellant.

No. 08–50345.

United States Court of Appeals, Ninth Circuit.

March 21, 2011.

OPINION TEXT STARTS HERETamra Phipps, Michael J. Raphael, Craig Missakian, Office of the U.S. Attorney, Los Angeles, CA, for Plaintiff–Appellee.ABrianna J. Fuller, Jonathan D. Libby, Federal Public Defender's Office, Los Angeles, CA, for Defendant–Appellant.Before: THOMAS G. NELSON, JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.Order; Concurrence by Judge MILAN D. SMITH, JR.; Concurrence by Chief Judge KOZINSKI; Dissent by Judge O'SCANNLAIN; Dissent by Judge GOULD.

ORDER

Judges T.G. 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. Fed. R.App. P. 35.

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:

I concur in the court's decision not to rehear this case en banc, and write to respond to the dissents from that decision.

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, United States v. Stevens, ––– U.S. ––––, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010) (internal quotation mark omitted)?

The Act provides:

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 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.

Although the majority and Judges O'Scannlain, Gould, and Bybee (sometimes referred to collectively as the Dissenters) disagree regarding the correct answers to the questions noted supra, we agree on several key underlying issues. First, we all agree that the Act “seek[s] to regulate ‘only ... words,’ ” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (quoting Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)), that the Act targets words about a specific subject (military honors), and that the Act is plainly a content-based regulation of speech. See United States v. Alvarez, 617 F.3d 1198, 1218–19 (9th Cir.2010) (Bybee, J., dissenting). Second, because the Act imposes a content-based restriction on speech, it is subjected to strict scrutiny, United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), unless the speech it criminalizes falls into one of the “well-defined and narrowly limited classes of speech” that is unprotected by the First Amendment, Stevens, 130 S.Ct. at 1584 (internal quotation mark omitted).

There is also no meaningful dispute between the majority and the Dissenters concerning whether the Act survives strict scrutiny if it does not fall into one of the Stevens subcategories of speech that is unprotected by the First Amendment. For example, Judge Bybee acknowledged that “if the Stolen Valor Act were subjected to strict scrutiny, the Act would not satisfy this test.” Alvarez, 617 F.3d at 1232 n. 10 (Bybee, J., dissenting) (emphasis omitted). The majority and the Dissenters also agree that the Government neither proved, nor was required to prove, that Alvarez's statements helped him to obtain tangible or intangible benefits, was part of a legal proceeding, involved certifying the truth of an official document, or caused harm to anyone else.

We also note that the majority opinion does not impugn the reputation of any of our brave men and women in uniform. On the contrary. The strict scrutiny analysis of the majority opinion affirms that our men and women in uniform put themselves in harm's way because they are honorable and brave, and not because they seek to be awarded one or more of the medals covered by the Act.

DISCUSSION

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. Alvarez, 617 F.3d at 1228–29, 1234 (Bybee, J., dissenting); O'Scannlain Dissent at 679–80, 681. 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.” Playboy Entm't Grp., 529 U.S. at 816, 818, 120 S.Ct. 1878; see also Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986) (“In the context of governmental restriction of speech, it has long been established that the government cannot limit speech protected by the First Amendment without bearing the burden of showing that its restriction is justified.”). 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 re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

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.

Tellingly, the Dissenters' discussion of Supreme Court case law begins with Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), rather than Gertz's predecessor, New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Sullivan 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. Id. at 271, 84 S.Ct. 710. The Court explained:

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth.... The constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered. As Madison said, “Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press.” In Cantwell v. Connecticut, 310 U.S. 296, 310 [60 S.Ct. 900, 84 L.Ed. 1213] [ (1940) ], the Court declared: “In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To 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.”

Id. (citations omitted). 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 t...