United States v. Alvarez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-50345
Plaintiff-Appellee, D.C. No.
v. 2:07-cr-01035-
XAVIER ALVAREZ, AKA Javier RGK-1
Alvarez, Central District of
Defendant-Appellant. California,
Los Angeles

 ORDER DENYING
PETITION FOR
PANEL
REHEARING AND
REHEARING EN
BANC;
CONCURRENCES
IN THE ORDER;
DISSENTS TO
 THE ORDER

Filed March 21, 2011

Before: Thomas G. Nelson, Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.

Order;
Concurrence by Judge M. Smith;
Concurrence by Chief Judge Kozinski;
Dissent by Judge O’Scannlain;
Dissent by Judge Gould

3743
3744 UNITED STATES v. ALVAREZ
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. Nel-
son 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 mat-
ter en banc, and the matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc con-
sideration. 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, 130 S. Ct. 1577,
1584 (2010) (internal quotation mark omitted)?

The Act provides:
 UNITED STATES v. ALVAREZ 3745
Whoever falsely represents himself or herself, ver-
bally or in writing, to have been awarded any deco-
ration or medal authorized by Congress for the
Armed Forces of the United States, any of the ser-
vice 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 imita-
tion 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 Dis-
trict 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 con-
victed 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 (1973) (quoting
Gooding v. Wilson, 405 U.S. 518, 520 (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
3746 UNITED STATES v. ALVAREZ
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 (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 Amend-
ment, 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 subcatego-
ries 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 Dissent-
ers 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 pro-
ceeding, 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 them-
selves 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 Dissent-
ers, 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.,
 UNITED STATES v. ALVAREZ 3747
dissenting); O’Scannlain Dissent at 3767-69, 3771. But this
approach inverts the burdens of proof and persuasion man-
dated by the Supreme Court by requiring criminal defendants
to show that their speech covered by the Act falls into the cat-
egories 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 nonper-
suasion . . . must rest with the Government, not with the citi-
zen.” Playboy Entm’t Group, 529 U.S. at 816, 818; see also
Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 777 (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 (1970).

In addressing the second question, the Dissenters rely heav-
ily 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
(1974), rather than Gertz’s predecessor, New York Times Co.
v. Sullivan, 376 U.S. 254 (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
3748 UNITED STATES v. ALVAREZ
respondent,” and held, unequivocally, that it does not. Id. at
271. The Court explained:

Authoritative interpretations of the First Amend-
ment guarantees have consistently refused to recog-
nize 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 [(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 per-
suade others to his own point of view, the pleader,
as we know, at times, resorts to exaggeration, to vili-
fication 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 they need to survive.” Id. at
271-72 (internal quotation marks omitted). The Court added
that “[e]ven a false statement may be deemed to make a valu-
able contribution to public debate, since it brings about ‘the
clearer perception and livelier impression of truth, produced
by its collision with error.’ ” Id. at 279 n.19 (quoting J.S. Mill,
On Liberty 15 (Oxford: Blackwell, 1947)).

Rather than addressing Sullivan’s clear statement that
“[a]uthoritative interpretations of the First Amendment guar-
 UNITED STATES v. ALVAREZ 3749
antees have consistently refused to recognize an exception for
any test of truth,” id. at 271, the Dissenters rely heavily on the
Court’s post-Sullivan case law. Yet none of these cases con-
tradicts Sullivan’s holding that at least some false statements
are entitled to First Amendment protection. The Dissenters
primarily rely on Gertz and its progeny for the proposition
that “the erroneous statement of fact is not worthy of constitu-
tional protection.” 418 U.S. at 340. In Gertz, the Court classi-
fied false statements of fact as “belong[ing] to that category
of utterances” that “ ‘are of such slight social value as a step
to truth that any benefit that may be derived from them is
clearly outweighed by the social interest in order and morali-
ty.’ ” Id. (quoting Chaplinsky v. New Hampshire, 315 U.S.
568, 572 (1942)). Thus, the Dissenters conclude, regulations
of false factual speech may be proscribed without constitu-
tional problem—or even any constitutional scrutiny.

Like Sullivan, Gertz (the earliest of the post-Sullivan cases
cited by the Dissenters) was a defamation case. Judge
O’Scannlain’s Dissent repeatedly quotes Gertz for the propo-
sition that “the erroneous statement of fact is not worthy of
constitutional protection,” see O’Scannlain Dissent at 3763,
3772, but Gertz also explained that such untrue statements are
“nevertheless inevitable in free debate.” 418 U.S. at 340. The
Gertz Court then added: “The First Amendment requires that
we protect some falsehood in order to protect speech that mat-
ters.” Id. at 341. Thus, recognizing this need to protect
“speech that matters,” the Court endeavored to find a balance
in defamation cases between the “legitimate state interest in
compensating private individuals for wrongful injury to repu-
tation,” and the First Amendment requirement of “shield[ing]
the press and broadcast media from the rigors of strict liability
for defamation.” Id. at 348. The Court accordingly held that
plaintiffs must show some level of fault by the defendant, and
further held that plaintiffs may only receive compensation for
“actual injury” if it is “supported by competent evidence con-
cerning the injury.” Id. at 350.
3750 UNITED STATES v. ALVAREZ
In other words, although Gertz stated that false statements
are not inherently worthy of First Amendment protection,1 the
Court did not hold that “ ‘false statements of fact’ are categor-
ically unprotected.” O’Scannlain Dissent at 3774 (quoting
Gertz, 418 U.S. at 340). Rather, Gertz held that defamatory
statements are unprotected if they are made with a culpable
state of mind and cause injury to another person. This is
exactly what it had held a decade earlier in Sullivan and Gar-
rison v. Louisiana, 379 U.S. 64 (1964), which only permitted
defamation actions in which there is “an intent to inflict harm
through falsehood.” Id. at 73. If Gertz stood for the proposi-
tion that false statements are per se unprotected (as the Dis-
senters suggest), then the Gertz majority’s reasoning would
likely have looked much more like Justice White’s dissent.
Compare Gertz, 418 U.S. at 347 n.10 (majority opinion), with
id. at 375-76 (White, J., dissenting).

In sum, “Gertz’s statement that false factual speech is
unprotected, considered in isolation, omits discussion of
essential constitutional qualifications on that proposition.”
Alvarez, 617 F.3d at 1203. Although the Court has stated that
false statements of fact are unworthy of First Amendment pro-
tection, the Court has never held that false speech is per se,
or even presumptively, unprotected by the First Amendment.
Indeed, one of the current members of the Court, while work-
ing as a law professor, recognized “[t]he near absolute protec-
tion given to false but nondefamatory statements of fact
outside the commercial realm.” Elena Kagan, Private Speech,
Public Purpose: The Role of Governmental Motive in First
Amendment Doctrine, 63 U. Chi. L. Rev. 413, 477 (1996).

Consistent with this principle, the Court’s standard list of
categorically exempt speech has never used the phrase “false
1
But see Sullivan, 376 U.S. at 279 n.19 (“Even 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.’ ” (quoting Mill, supra, at 15)).
 UNITED STATES v. ALVAREZ 3751
statements of fact.” Instead, the Court has limited itself to
using the words defamation (or libel) and fraud. Most
recently, the Court wrote: “These historic and traditional cate-
gories [of unprotected speech] long familiar to the bar—
including obscenity, defamation, fraud, incitement, and
speech integral to criminal conduct—are well-defined and
narrowly limited classes of speech, the prevention and punish-
ment of which have never been thought to raise any Constitu-
tional problem.” Stevens, 130 S. Ct. at 1584 (citations and
internal quotation marks omitted). Similar formulations have
been used for at least six decades, and the Court has never
included “false statements of fact” in its list.2 As Judge
O’Scannlain’s Dissent appears to acknowledge, all of the
cases and statutes he relies upon either fit within one of the
categories discussed in Stevens (or its predecessors) or were
subjected to First Amendment scrutiny.3
2
See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) (listing
obscenity, defamation, and fighting words); Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Ken-
nedy, J., concurring) (listing “obscenity, defamation, incitement, or situa-
tions presenting some grave and imminent danger the government has the
power to prevent” (citations omitted)); Bose Corp. v. Consumers Union of
U.S., Inc., 466 U.S. 485, 504 (1984) (“Libelous speech has been held to
constitute one such category [of unprotected speech]; others that have
been held to be outside the scope of the freedom of speech are fighting
words, incitement to riot, obscenity, and child pornography.” (citations
omitted)); New York v. Ferber, 458 U.S. 747, 763 (1982) (listing fighting
words, libel, and obscenity); Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557, 592-93 (1980) (Rehnquist, J., dis-
senting) (listing fighting words, group libel, obscenity, and false and mis-
leading commercial speech); Sullivan, 376 U.S. at 269 (listing
“insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, [and] solicitation of legal business” (footnotes omitted));
Konigsberg v. State Bar of Cal., 366 U.S. 36, 49 n.10 (1961) (listing
“libel, slander, misrepresentation, obscenity, perjury, false advertising,
solicitation of crime, complicity by encouragement, conspiracy, and the
like”); Chaplinsky, 315 U.S. at 572 (listing “the lewd and obscene, the
profane, the libelous, and the insulting or ‘fighting’ words”).
3
Although Judge O’Scannlain is correct that “not all of the cases in this
area deal with defamation,” O’Scannlain Dissent at 3774 n.6, he is also
3752 UNITED STATES v. ALVAREZ
To the extent the Court has articulated a test for determin-
ing whether a certain type of speech belongs on that list, the
test is whether “[f]rom 1791 to the present,” that speech has
been “historically unprotected.” Stevens, 130 S. Ct. at
1584-86. Usually, in cases involving such types of speech,
“the evil to be restricted so overwhelmingly outweighs the
expressive interests, if any, at stake, that no process of case-
by-case adjudication is required.” Ferber, 458 U.S. at 763-64;
see also Chaplinsky, 315 U.S. at 572 (explaining that unpro-
tected categories of speech “are of such slight social value as
a step to truth that any benefit that may be derived from them

correct that many of them do. O’Scannlain Dissent at 3774. See Keeton v.
Hustler Magazine, Inc., 465 U.S. 770 (1984); Herbert v. Lando, 441 U.S.
153 (1979); Gertz, 418 U.S. 323; Sullivan, 376 U.S. 254. Another case he
cites involves fighting words, which also fit into the Stevens categories of
First Amendment-exempt speech. Chaplinsky, 315 U.S. 568.
Judge O’Scannlain collects a number of federal and state laws prohibit-
ing various forms of fraud and perjury. O’Scannlain Dissent at 3775-76;
see also Black’s Law Dictionary 1254 (9th ed. 2009) (defining “perjury”
broadly as “[t]he act or an instance of a person’s deliberately making
material false or misleading statements while under oath”). Fraud, of
course, is covered by Stevens’s categories, and perjury is included in a
similar list in Konigsberg, 366 U.S. at 49 n.10.
Judge O’Scannlain also cites a series of cases discussing anticompeti-
tive “sham” litigation. E.g., BE & K Constr. Co. v. NLRB, 536 U.S. 516
(2002); Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731 (1983); Clipper
Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240
(9th Cir. 1982). These cases stand for the narrow and uncontroversial
proposition that “there is simply no basis to hold that deliberately misrep-
resenting facts to an administrative [or judicial] body for anticompetitive
purposes enjoys blanket first amendment protection.” Clipper Exxpress,
690 F.3d at 1262.
Finally, Judge O’Scannlain cites a pair of cases that refused to recog-
nize new exceptions to the First Amendment. Hustler Magazine v. Fal-
well, 485 U.S. 46, 56 (1988) (“[T]he sort of expression involved in this
case [intentional infliction of emotional distress] does not seem to us to be
governed by any exception to the general First Amendment principles
stated above.”); Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 770 (1976) (“[C]ommercial speech, like other
varieties, is protected . . . .”).
 UNITED STATES v. ALVAREZ 3753
is clearly outweighed by the social interest in order and
morality”). However, the Court has cautioned against reliance
on a “freewheeling” “cost-benefit analysis.” Stevens, 130 S.
Ct. at 1586. The Court has also explained that Chaplinsky and
its successors “do not set forth a test that may be applied as
a general matter to permit the Government to imprison any
speaker so long as his speech is deemed valueless or unneces-
sary, or so long as an ad hoc calculus of costs and benefits
tilts in a statute’s favor.” Id. Instead, the exclusive test is
whether the “categor[y] of speech . . . ha[s] been historically
unprotected.” Id.4 Tellingly, in Stevens, the Court found the
government’s proposed “free-floating test for First Amend-
ment coverage,” to be “startling and dangerous,” and went on
to say that “[t]he First Amendment’s guarantee of free speech
does not extend only to categories of speech that survive an
ad hoc balancing of relative social costs and benefits. The
First 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.” Id. at 1585.5

The Dissenters fail to identify a body of historical authori-
ties showing broad regulation of false statements of fact. They
contend that “[t]he fact that one of the Court’s most recent
4
Consistent with its historical test, the Court has collected authorities
showing that all of the categories listed in Stevens have traditionally been
regulated by Congress and the states. See Roth v. United States, 354 U.S.
476, 482-83, 485 (1957) (obscenity and libel); Beauharnais v. Illinois, 343
U.S. 250, 254-55 (1952) (libel); Donaldson v. Read Magazine, 333 U.S.
178, 190-91 (1948) (fraud); Chaplinsky, 315 U.S. at 571 n.2 (cited in
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)) (speech
integral to criminal conduct); see also United States v. Smull, 236 U.S.
405, 408 & n.1 (1915) (cited in United States v. Dunnigan, 507 U.S. 87,
94-95 (1993)) (perjury).
5
Judge Gould’s proposed approach cannot be reconciled with the Ste-
vens Court’s unequivocal rejection of ad hoc, case-by-case balancing tests.
See Gould Dissent at 3781-82.
3754 UNITED STATES v. ALVAREZ
statements on unprotected categories of speech did not
expressly mention ‘false statements of fact’ sheds little, if
any, light on the historical protection of such speech.”
O’Scannlain Dissent at 3774. True, but irrelevant. The Dis-
senters have not even attempted to trace their purported “false
speech” exemption any further back than the 1960s.

In fact, the historical record regarding government regula-
tion of false speech is problematic for the Dissenters.6 Were
they to identify historical support for such regulation, the
clearest precedent would be the much-maligned Alien and
Sedition Act of 1798. That infamous act “made it a crime,
punishable by a $5,000 fine and five years in prison, ‘if any
person shall write, print, utter or publish . . . any false, scan-
dalous and malicious writing or writings against the govern-
ment of the United States, or either house of the Congress
6
See, e.g., Hale v. Everett, 53 N.H. 9, 208 (1868) (“The vice of lying,
which consists (abstractedly taken) in a criminal violation of truth, and
therefore, in any shape, is derogatory from sound morality, is not, how-
ever, taken notice of by our law unless it carries with it some public incon-
venience, as spreading false news; or some social injury, as slander and
malicious prosecution, for which a private recompense is given.”); Fred B.
Hart, Power of Government Over Speech and Press, 29 Yale L.J. 410, 427
(1920) (“ ‘The constitutional liberty of speech and of the press as we
understand it, implies a right to freely utter and publish whatever the citi-
zen may please, and to be protected against any responsibility for so doing
except so far as such publications, from their blasphemy, obscenity or
scandalous character may be a public offense, or as by their falsehood and
malice may injuriously affect the standing, reputation or pecuniary inter-
ests of individuals.’ ” (quoting Thomas Cooley, Constitutional Limitations
604-05 (6th ed. 1890))).
To the extent that spreading false news was a crime at common law,
prosecutions under such laws appear to have died out by the late seven-
teenth century. See Larry D. Eldridge, Before Zenger: Truth and Seditious
Speech in Colonial America, 1607-1700, 39 Am J. Legal Hist. 337, 356
(1995) (“Increasingly, as the century went on, colonial officials simply
investigated rumors [of violations of false news laws] and did little except
publicly declare them to be false in an effort ‘to quiet the minds of the
people.’ ”).
 UNITED STATES v. ALVAREZ 3755
. . . , or the President . . ., with intent to defame . . . or to bring
them . . . into contempt or disrepute; or to excite against them
. . . the hatred of the good people of the United States.’ ” Sul-
livan, 376 U.S. at 273-74 (quoting Sedition Act of 1798, 1
Stat. 596) (first four omissions in original). As explained in
Sullivan, upon its passage this act “was vigorously con-
demned as unconstitutional in an attack joined in by Jefferson
and Madison.” Id. at 274. The Court explained that the histor-
ical record contained a great deal of criticism of the act, and
accordingly concluded that “[a]lthough the Sedition Act was
never tested in this Court, the attack upon its validity has car-
ried the day in the court of history.” Id. at 276 (footnote omit-
ted). I suspect that the Dissenters do not intend to resurrect the
Alien and Sedition Act of 1798 as an exhibit in favor of their
historical argument.

That said, the Dissenters acknowledge that the Supreme
Court’s case law does not clearly and uniformly support their
contention that false speech is always unprotected. But they
counter that the First Amendment protects only some false
speech “in order to protect speech that matters.” Gertz, 418
U.S. at 341. But the Dissenters do not even attempt to identify
the types of speech that “matter.” The Dissenters’ “speech
that matters” approach simply invites courts to complete an
ever-expanding list, which would increasingly resemble the
Kafkaesque world so well portrayed in Chief Judge Kozin-
ski’s concurrence in this case. See Kozinski Concurrence at
3758-59. It goes without saying that such an “ad hoc,” “free-
wheeling,” “case-by-case” approach is contrary to the
Supreme Court’s teachings in Stevens, and might even be
among those the Court finds “startling and dangerous.” Ste-
vens, 130 S. Ct. at 1585-86.

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. O’Scannlain Dissent at
3778; see generally Gould Dissent. But “[a]s presently
drafted, the Act is facially invalid under the First Amend-
3756 UNITED STATES v. ALVAREZ
ment, and was unconstitutionally applied to make a criminal
out of a man who was proven to be nothing more than a liar,
without more.” Alvarez, 617 F.3d at 1217 (emphasis added).

The Dissenters rely on the unsupportable doctrinal premise
that false speech is categorically subject to government regu-
lation and prohibition. For the reasons outlined supra and in
my majority opinion, I respectfully disagree.

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. United States v. Alva-
rez, 617 F.3d 1198, 1224 (9th Cir. 2010) (Bybee, J., dissent-
ing); see also O’Scannlain dissent at 3764; cf. Gould dissent
at 3780. 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 JDater 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, sub-
ject only to the rubber stamp known as “rational basis
review.”
 UNITED STATES v. ALVAREZ 3757
What the dissenters seem to forget is that Alvarez was con-
victed for pure speech. And when it comes to pure speech,
truth is not the sine qua non of First Amendment protection.
See Meyer v. Grant, 486 U.S. 414, 419 (1988) (“The First
Amendment is a value-free provision whose protection is not
dependent on the truth, popularity or social utility of the ideas
and beliefs which are offered.” (internal quotation marks
omitted)). That the government can constitutionally regulate
some narrow categories of false speech—such as false adver-
tising, 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.” Id. at 419-20 (internal quotation mark omitted);
Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,
concurring). 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 Mar-
shall 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.

Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall,
J., concurring). Accordingly, the Court has recognized that
“[o]ne fundamental concern of the First Amendment is to
3758 UNITED STATES v. ALVAREZ
‘protec[t] the individual’s interest in self-expression.’ ” Citi-
zens United v. FEC, 130 S. Ct. 876, 972 (2010) (Stevens, J.,
concurring in part and dissenting in part) (quoting Consol.
Edison Co. of N.Y. v. Pub. Serv. Comm’n, 447 U.S. 530, 534
n.2 (1980)) (second alteration in original). Speaking about
oneself is precisely when people are most likely to exagger-
ate, 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 expres-
sion 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 skin-
ny”); to avoid recriminations (“I only lost $10 at poker”); to
prevent grief (“The doc says you’re getting better”); to main-
tain 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 dis-
pleasure (“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 appear-
ances (“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
 UNITED STATES v. ALVAREZ 3759
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 auton-
omy 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 pri-
vate 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,
376 U.S. 254, 271-72 (1964). Americans tell somewhere
between two and fifty lies each day. See Jochen Mecke, Cul-
tures of Lying 8 (2007). 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 sub-
ject to prohibition.” O’Scannlain dissent at 3779. This is dou-
3760 UNITED STATES v. ALVAREZ
ble 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,” “predic-
tions or plans,” “exaggerations” and “playful fancy.” Id. at
3778-79. “Such statements,” we are told, “are not even impli-
cated” by the dissenters’ analysis because they are not “falsi-
fiable.” Id. 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, some-
one’s going to call you a liar. And if you tell the Social Secur-
ity 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 col-
league 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 doc-
trine that is so complex, ad hoc and subjective that no one but
the author can say with assurance what side of the line partic-
ular 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 Amend-
ment area, Smith concurrence at 3755, but results in the
 UNITED STATES v. ALVAREZ 3761
“courts themselves . . . becom[ing] inadvertent censors.” Sny-
der v. Phelps, No. 09-751, 2011 WL 709517, at *6 (U.S. Mar.
2, 2011). And, as Judge Smith elegantly demonstrates, Judge
O’Scannlain’s approach compounds the danger of arbitrari-
ness 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.
Smith concurrence at 3746. Free speech simply cannot sur-
vive the kind of subjective and unpredictable regime envi-
sioned by the dissenters.

Judge O’Scannlain is right that the scenario I describe is
“far removed from the one in which we actually live,”
O’Scannlain dissent at 3780, 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.

Before I get to that, however, let me point out just how
wrong it would be to convene an en banc court in order to
adopt a rule such as that proposed by our colleague. En bancs
are generally appropriate to correct a conflict with the law of
our own circuit, another circuit or the Supreme Court. The
enterprise Judge Gould proposes would serve none of these
purposes. Instead, he would have the en banc court adopt a
rule no other court has ever adopted and the Supreme Court
has never hinted at. This strikes me as an unwise use of en
banc resources.
3762 UNITED STATES v. ALVAREZ
But on to the rule Judge Gould proposes. 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, U.S. Const.
art. I, § 8, cl. 4; foreign relations, id. cl. 3; copyright and
patent, id. cl. 8; bankruptcy, id. cl. 4; interstate commerce, id.
cl. 3; tax, id. cl. 1; Native Americans, id. cl. 3; and the District
of Columbia, id. cl. 17. Judge Gould doesn’t explain why con-
gressional 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 concern-
ing military matters is unprotected by the First Amendment,
else Congress could pretty much have banned the entire Viet-
nam 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 burn-
ing an American flag, displaying a profane word in court, rub-
bing 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. See New York Times Co. v. United
States, 403 U.S. 713 (1971); cf. Charlie Savage, U.S. Prosecu-
tors Study WikiLeaks Prosecution, N.Y. Times, Dec. 8, 2010,
at A10. Exceptions to categorical rules, once created, are dif-
ficult 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”
 UNITED STATES v. ALVAREZ 3763
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 govern-
ment 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 con-
fer 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 them-
selves 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 protect-
ing 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 your-
self, 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
3764 UNITED STATES v. ALVAREZ
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 constitutional-
ity of the Act, but the court’s opinion is not merely unprece-
dented; 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.

I

Shortly after winning election to a regional water district’s
board of directors, Xavier Alvarez stood in a public meeting
and was asked to introduce himself. Before the assembled
crowd, Alvarez proudly declared, “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.” United States v.
Alvarez, 617 F.3d 1198, 1200 (9th Cir. 2010) (internal quota-
tion marks omitted).

But Alvarez has never served in the Marines or in any other
branch of the armed forces. He certainly has not been
awarded the Medal of Honor, the nation’s most prestigious
military decoration. “In short, with the exception of ‘I’m still
around,’ his self-introduction was nothing but a series of
bizarre lies.” Id. at 1201.

The FBI obtained a recording of the board meeting and
Alvarez was indicted on two counts of falsely claiming to
have received the Medal of Honor, in violation of the Stolen
Valor Act, 18 U.S.C. §§ 704(b), (c)(1).1 Alvarez moved to
1
The Act provides:
 UNITED STATES v. ALVAREZ 3765
dismiss the indictment, claiming that the Act is unconstitu-
tional, and the district court denied the motion. Alvarez, 617
F.3d at 1201. He then pleaded guilty to one count of “falsely
represent[ing] verbally that he had been awarded the Congres-
sional Medal of Honor when, in truth and as [he] knew, he
had not received the Congressional Medal of Honor,” and
reserved his right to appeal the First Amendment issue. Id.
(internal quotation marks omitted) (alterations in original).

On appeal to this court, Alvarez claimed that the Act
unconstitutionally restricts the freedom of speech. The court
subjected the Act to strict scrutiny review, ultimately conclud-
ing that it failed to survive. The court then rendered the first
and only Court of Appeals opinion to declare the Act
unconstitutional—both as applied to Alvarez and on its face.
Judge Bybee dissented.

II

In giving strict scrutiny to the Stolen Valor Act, the major-
ity ignored a straightforward aspect of First Amendment law:
the right to lie is not a fundamental right under the Constitu-
tion. 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.”

Whoever falsely represents himself or herself, verbally or in writ-
ing, 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 penalty is enhanced if the lie involved certain
enumerated medals, including the Congressional Medal of Honor. Id.
§§ 704(c)-(d).
3766 UNITED STATES v. ALVAREZ
Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974). False
statements are “particularly valueless,” Hustler Magazine v.
Falwell, 485 U.S. 46, 52 (1988); are “not immunized by the
First Amendment right to freedom of speech,” Bill Johnson’s
Rests., Inc. v. NLRB, 461 U.S. 731, 743 (1983); “ha[ve] never
been protected for [their] own sake,” Va. State Bd. of Phar-
macy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
771 (1976); and “in and of [themselves] carr[y] no First
Amendment credentials,” Herbert v. Lando, 441 U.S. 153,
171 (1979).2

Under plain application of the Supreme Court’s guidance,
the Stolen Valor Act—which criminalizes only false state-
ments of fact—should not undergo the rigor of strict scrutiny
review. We reserve such intense scrutiny only for constitu-
tionally protected speech. See Phila. Newspapers, Inc. v.
Hepps, 475 U.S. 767, 777 (1986) (“[T]he government cannot
limit speech protected by the First Amendment without bear-
ing the burden of showing that its restriction is justified.”
(emphasis added)). Yet, upon the novel theory that “we pre-
sumptively 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 Con-
gress. Alvarez, 617 F.3d at 1217.

A

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.” Gertz, 418
2
The Court’s instruction that false speech is not constitutionally pro-
tected is but a part of the more fundamental precept of First Amendment
law that certain categories of speech are fully outside of that Amend-
ment’s protections. See Chaplinsky v. New Hampshire, 315 U.S. 568,
571-72 & n.3 (1942).
 UNITED STATES v. ALVAREZ 3767
U.S. at 340. 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.

1

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.”
418 U.S. at 340. The Court went on to consider whether other
First Amendment concerns required extending a heightened
“actual malice” standard to defamation actions brought by pri-
vate individuals.3 Id. at 340-47. Importantly, the Court con-
cluded 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 stan-
dard of liability” for such actions, so long as “they do not
impose liability without fault.” Id. at 347. The baseline pro-
tection against strict liability was necessary, the Court
explained, not because the First Amendment shields false
statements as a general matter, but because such broad liabil-
ity would threaten the operations of “the press and broadcast
media.” Id. at 348 (emphasis added). In other words, the
Court determined that “speech that matters,” id. at 341—the
presence of robust and functional news media—required
some minimal protection against liability for publishing erro-
neous facts.

This same method of analysis—beginning from the pre-
sumption that false speech is unprotected and then determin-
3
Specifically, the Court considered whether to extend the “actual mal-
ice” standard crafted in New York Times Co. v. Sullivan, 376 U.S. 254
(1964), for defamation actions brought by public officials. I discuss Sulli-
van infra Part II.A.2.
3768 UNITED STATES v. ALVAREZ
ing 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.” 485 U.S. at 52.
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 offi-
cials. Id. at 52-54. After an extensive analysis, the Court
announced its “considered judgment” that the pivotal role
played by satire in “public and political debate,” id. at 54,
required the extension of an actual malice standard to such
claims. Id. at 56-57. See also BE & K Constr. Co. v. NLRB,
536 U.S. 516, 531 (2002) (considering whether the freedom
to bring unsuccessful lawsuits deserves “breathing space pro-
tection” under the First Amendment).

Our own court has followed the same pattern of analysis.
Under the Supreme Court’s guidance, we recognize that
“false statements are not deserving, in themselves, of constitu-
tional protection,” and thus “constitutional protection is
afforded [only] some false statements.” Johnson v. Multno-
mah Cnty., 48 F.3d 420, 424 (9th Cir. 1995) (emphasis
added). Namely, we must consider “the interest in creating a
‘breathing space’ ” for constitutionally protected speech. Id.

For example, in Clipper Exxpress v. Rocky Mountain Motor
Tariff Bureau, Inc., we began by recognizing that the “[F]irst
[A]mendment has not been interpreted to preclude liability for
false statements.” 690 F.2d 1240, 1261 (9th Cir. 1982). From
there, we asked whether allowing antitrust liability for fur-
nishing false information to an administrative body would
impinge on other, constitutionally protected speech. Ulti-
mately, we concluded that imposing such liability would not
“hamper debate,” and therefore that no heightened First
Amendment protections applied. See id. at 1261-62. More-
over, we made clear that even where a restriction on false
statements will hamper debate, “this possibility does not
require that all such statements be immunized from liability.”
 UNITED STATES v. ALVAREZ 3769
Id. at 1262. Indeed, the protection of speech that matters may
simply “suggest that a court should adopt a stricter standard
of proof,” not even that the most exacting level of scrutiny
should be applied. Id.

2

In this case, the majority implied that the Supreme Court’s
long line of decisions applying the foregoing analysis is called
into question by its earlier decision in New York Times Co. v.
Sullivan, 376 U.S. 254 (1964). See Alvarez, 617 F.3d at 1203,
1206-08. Nothing could be further from the truth. Sullivan
does not suggest that false statements, in and of themselves,
receive constitutional protection. Quite the opposite, in Sulli-
van the Court engaged in precisely the analysis described
above.

In Sullivan, the Court considered whether an elected com-
missioner of Montgomery, Alabama could bring a civil libel
suit for defamatory comments contained in a full-page politi-
cal advertisement. Id. at 256-57. Of the advertisement’s ten
paragraphs, only two contained statements that were allegedly
false. Id. at 257. Rather than addressing whether false speech,
as a category, is protected by the First Amendment, the Court
asked whether the “advertisement, as an expression of griev-
ance and protest on one of the major public issues of our time,
. . . forfeits [First Amendment] protection by the falsity of
some of its factual statements.” Id. at 271 (emphasis added).
Ultimately, the Court concluded that the presence of some
erroneous statements did not forfeit all protections for the
political advertisement as a whole. Because “erroneous state-
ment is inevitable in free debate,” in certain circumstances, it
“must be protected if the freedoms of expression are to have
the ‘breathing space’ that they ‘need . . . to survive.’ ” Id. at
271-72 (quoting NAACP v. Button, 371 U.S. at 415, 433
(1963)) (ellipsis in original). The Court noted that this is espe-
cially true in the unique “climate in which public officials
operate.” Id. at 273 n.14. Accordingly, the Court required a
3770 UNITED STATES v. ALVAREZ
heightened “actual malice” scienter for public officials seek-
ing to bring defamation actions against their critics, specifi-
cally to buttress our “profound national commitment to the
principle that debate on public issues should be uninhibited,
robust, and wide-open.” Id. at 270.

As described by the Supreme Court itself, Sullivan thus
stands for the simple proposition that we must “protect some
falsehood in order to protect speech that matters.” Gertz, 418
U.S. at 341 (emphasis added) (discussing Sullivan). This is a
far cry from the majority’s opinion, which somehow con-
cludes that “we presumptively protect all speech, including
false statements.” Alvarez, 617 F.3d at 1217 (emphasis omit-
ted). The Court in Sullivan did not address the question
whether false statements, as a category, are protected by the
First Amendment.4 Sullivan’s holding does not even apply to
defamation actions against private individuals, nor does it
extend First Amendment protections to any knowingly false
speech, see Garrison v. Louisiana, 379 U.S. 64, 75 (1964)
(“[T]he knowingly false statement and the false statement
made with reckless disregard of the truth, do not enjoy consti-
tutional protection.”).

Sullivan is but one example of granting limited First
Amendment protection to false statements in order to protect
other, non-false speech that matters. See BE & K Constr. Co.,
536 U.S. at 531 (describing Sullivan as “[a]n example of . . .
‘breathing space’ protection” for speech that matters). And
Sullivan therefore does not establish any rule that calls into
question the Court’s many subsequent statements that identify
false speech as constitutionally unprotected.
4
And the Court certainly did not address whether all speech is presump-
tively protected, as the majority opinion states. It is difficult to see how
the majority could defend this more startling conclusion, given the multi-
tude of Supreme Court cases stating emphatically that certain “categories
of speech [are] fully outside the protection of the First Amendment.”
United States v. Stevens, 130 S. Ct. 1577, 1586 (2010) (emphasis added);
accord Konigsberg v. State Bar of Cal., 366 U.S. 36, 50 (1961).
 UNITED STATES v. ALVAREZ 3771
B

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. See United States v. Stevens, 130 S. Ct. 1577, 1585-86
(2010) (“[W]ithin [the] categories of unprotected speech . . .
no process of case-by-case adjudication is required, because
the balance of competing interests is clearly struck.” (internal
quotation marks omitted)). The majority never should have
imposed such exacting standards upon the Stolen Valor Act.

III

Despite such overwhelming precedent, the majority some-
how proclaims to “find no authority holding that false factual
speech, as a general category unto itself, is [unprotected by
the First Amendment].” Alvarez, 617 F.3d at 1206 (emphasis
added). With that remarkable conclusion, the majority dove
into strict scrutiny analysis after determining that the govern-
ment had not rebutted the majority’s self-imposed presump-
tion of such scrutiny. The court never even considered
whether the Stolen Valor Act will chill speech that matters,
much less required Xavier Alvarez to demonstrate that it will.5
5
In his post-opinion concurrence, Judge Smith insists that the govern-
ment is required “to prove that the targeted speech is not . . . protected.”
Smith Concurrence at 3747. This is misleading. At most, the government
bears the burden of showing that the speech targeted is within a certain
class of unprotected speech; once that is shown, no further case-by-case
analysis is needed, see Stevens, 130 S. Ct. at 1585-86. Here, there is no
question that the Act criminalizes only false statements of fact. Such state-
ments are categorically unprotected for their own sake—and it is then
Alvarez’s burden to demonstrate whether other First Amendment concerns
require protection of the false statements at issue.
3772 UNITED STATES v. ALVAREZ
In so doing, the majority both rejected the Supreme Court’s
settled method of analysis and ignored the Court’s clear lan-
guage. As Judge Bybee put it, “[t]he majority . . . effectively
overruled Gertz and inverted the whole scheme.” Id. at 1223
(Bybee, J., dissenting). And, ultimately, the majority imposed
burdens upon the Stolen Valor Act that are unsupported by,
and are even directly contrary to, existing law.

A

1

Instead of recognizing that false speech is unprotected, the
majority refused to give the Supreme Court’s consistent and
overwhelming precedent its full due. Instead, the majority
“believe[s] the historical category of unprotected speech iden-
tified in Gertz and related law is defamation, not all false fac-
tual speech.” Alvarez, 617 F.3d at 1207 (emphasis added).
The majority thus analyzed the issue as whether it should “ex-
tend” this traditionally unprotected category of “defamation”
to include false statements of fact more broadly. Id. at 1208.

But to accept the majority’s reading of Gertz and its prog-
eny, one must turn a deaf ear to the Supreme Court’s lan-
guage. Indeed, in the majority’s view, each of the myriad
times the Court referred to “false statements” generally, the
Court misspoke. For instance, when the Court wrote that “the
erroneous statement of fact is not worthy of constitutional
protection,” Gertz, 418 U.S. at 340, what it really meant
(according to the majority) was “the erroneous statement of
fact is not worthy of constitutional protection [only if it meets
the traditional definition of defamation].” Or when the Court
instructed that “false statements [are] unprotected for their
own sake,” BE & K Constr. Co., 536 U.S. at 531, it actually
meant (according to the majority) that “[slander and libel are]
unprotected for their own sake.”

It is not our place to put words into the mouth of the
Supreme Court. Worse yet, it is not our place to take the
 UNITED STATES v. ALVAREZ 3773
Supreme Court’s actual words and reshape them to mean
something entirely different. As Judge Bybee noted in dissent,
the Supreme Court surely knows the difference between “def-
amation” and “false statements of fact.” See Alvarez, 617 F.3d
at 1223 (Bybee, J., dissenting). If it meant the former, pre-
sumably it would have said so. I cannot assume that the Court
would have blithely used “false statements” to mean “defama-
tion” for four decades running.

2

In reaching its constrained reading of Gertz and its prog-
eny, the majority relies heavily on the Supreme Court’s recent
decision in United States v. Stevens. There, the Court consid-
ered whether graphic portrayals of violence to animals are
entitled to protection under the First Amendment. Outlining
the general framework for considering First Amendment chal-
lenges, the Court explained that certain “categories of speech
[are] fully outside the protection of the First Amendment.”
Stevens, 130 S. Ct. at 1586. By way of illustration, the Court
noted that these categories “includ[e] obscenity, defamation,
fraud, incitement, and speech integral to criminal conduct.”
Id. at 1584 (citations omitted). The Court went on to reject the
contention that depictions of animal cruelty were one such
category, and thereafter to reject the argument that a new cat-
egory for such depictions should be created.

The majority makes much of the fact that the Court in Ste-
vens did not specifically name “false statements of fact” in its
list of historically unprotected categories of speech. See Alva-
rez, 617 F.3d at 1208-09. The majority reads into that passage
an implication that false statements are not historically unpro-
tected. But, by its own terms, the Court’s list of unprotected
categories is not exhaustive. Even more, by stating that the
categories of historically unprotected speech include the
examples it named, the Court implied that other, unnamed
classes of speech are unprotected as well. See Burgess v.
United States, 553 U.S. 124, 131 n.3 (2008) (“ ‘[T]he word
3774 UNITED STATES v. ALVAREZ
‘includes’ is usually a term of enlargement, and not of limita-
tion.’ ” (emphasis added) (quoting 2A N. Singer & J. Singer,
Sutherland on Statutory Construction § 47:7, at 305 (7th ed.
2007))). It is obvious that the Supreme Court’s brief, illustra-
tive list was in no way intended to call into question its dec-
ades of precedent explicitly stating that false statements of
fact do not receive First Amendment protection.

Moreover, it is little surprise that the Supreme Court at
times refers specifically to “defamation” as an unprotected
category, given that many of the cases in this area concern
defamatory statements.6 See, e.g., Gertz, 418 U.S. at 323;
Chaplinsky, 315 U.S. at 568. But the Court’s reference to the
specific category of defamation in a given case has never been
thought to refute the notion that the general category of false
statements is unprotected. For example, in Chaplinsky v. New
Hampshire, the Court listed the categories of historically
unprotected speech as “the lewd and obscene, the profane, the
libelous, and the insulting or ‘fighting’ words.” Chaplinsky,
315 U.S. at 572 (emphasis added). But, directly quoting Cha-
plinsky, in Gertz the Court stated more broadly that “false
statements of fact” are categorically unprotected. Gertz, 418
U.S. at 340. The fact that one of the Court’s most recent state-
ments on unprotected categories of speech did not expressly
mention “false statements of fact” sheds little, if any, light on
the historical protection of such speech.

B

After dodging the Supreme Court’s clear guidance, the
majority mistakenly concludes that the only way for the
6
Importantly, not all of the cases in this area deal with defamation—a
point that cuts sharply against the majority’s reading of Gertz. See, e.g.,
BE & K Constr. Co, 536 U.S. 516 (retaliatory lawsuits); Hustler Maga-
zine, 485 U.S. 46 (intentional infliction of emotional distress); see also
Alvarez, 617 F.3d at 1224-27 (Bybee, J., dissenting) (collecting and dis-
cussing cases).
 UNITED STATES v. ALVAREZ 3775
Stolen Valor Act to survive is if it requires a scienter above
negligence and a showing of individualized harm. See Alva-
rez, 617 F.3d at 1207-14. According to the majority, these
requirements are derived from those imposed upon regula-
tions of defamation and fraud—the two categories of unpro-
tected speech that the majority admits deal in false statements.
But upon closer look at current laws, the majority’s self-
created requirements do not hold water. Moreover, even if we
were to impose such requirements, the Stolen Valor Act still
survives.

1

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.7 For example,
Chapter 47 of Title 18 (named “Fraud and False Statements”),
criminalizes a host of false statements, including many with-
out any showing of harm (or even of “materiality”)—and
some which do not even contain a scienter requirement. See,
e.g., 18 U.S.C. § 1005 (punishing “any false entry in any
book, report, or statement” of a bank); id. § 1011 (punishing
“any [knowingly] false statement . . . relating to the sale of
any mortgage, to any Federal land bank”); id. § 1015(a) (pun-
ishing “any [knowingly] false statement under oath, in any
case, proceeding, or matter relating to . . . naturalization, citi-
zenship, or registry of aliens”); id. § 1027 (punishing “any
[knowingly] false statement or representation of fact . . .
required by [ERISA]”). The Supreme Court has rejected the
contention that these statutes implicitly require a showing of
7
Moreover, the failure of these laws to comply with the majority’s self-
created requirements suggests that prohibitions of false speech have not
been constrained to traditional definitions of “fraud” or “defamation.” I
certainly do not agree, as Judge Smith assumes, Smith Concurrence at
3751, that these laws are constitutional only because they fit within such
categories as listed in Stevens.
3776 UNITED STATES v. ALVAREZ
materiality or harm—and yet the Court did not even consider
whether the absence of such a requirement raised First
Amendment concerns. See United States v. Wells, 519 U.S.
482 (1997). And the federal government is far from alone; a
quick survey of but a few states within our own circuit under-
scores 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. § 13-2907.03 (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 under
oath); 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 sig-
nificant that the Stolen Valor Act does not require a showing
of individualized harm.

2

Even if we were to require the Stolen Valor Act to contain
the majority’s self-created requirements, the Act would still
stand. First, even accepting the need for some scienter above
negligence, it is clearly met here.8 Although the Act does not
explicitly contain a scienter requirement, Alvarez readily
admits that he knew his statement was a lie when he uttered
it. See Alvarez, 617 F.3d at 1201. Thus, at least as-applied to
Alvarez, the statute’s lack of a scienter requirement is of no
8
Although the majority implied that, to survive, the Act must require a
“malicious” or “knowingly false” scienter along the lines of Sullivan,
Alvarez 617 F.3d at 1209, it is difficult to understand why such a strict
scienter would be required here, while it is not even required in defama-
tion actions brought by non-public figures, see Gertz 418 U.S. at 343-50.
 UNITED STATES v. ALVAREZ 3777
moment. Moreover, in seemingly every case that would be
prosecuted under the Act, the speaker will know the falsity of
his statement. It is difficult to imagine a scenario in which a
speaker honestly believes that he has been awarded a military
honor that he has not actually received. To the extent that any
such case would arise, it surely would be the rare exception.
Thus, the lack of a scienter requirement carries no weight
even under Alvarez’s facial challenge. That challenge may
succeed only if “no set of circumstances exists under which
the Act would be valid.”9 United States v. Salerno, 481 U.S.
739, 745 (1987).

Second, even if it were necessary, a requirement that the
Act criminalize only statements that effect some harm is eas-
ily satisfied. Indeed, Congress has identified the harm at
issue: “[f]raudulent claims surrounding the receipt of . . . [mil-
itary] 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).
The majority admits that “Congress certainly has an interest,
even a compelling interest” in preventing such harm. Alvarez,
617 F.3d at 1216. That the Act does not explicitly limit its
scope only to those false statements that incur this congressio-
nally identified harm is inconsequential; the underlying point
is that all such statements contribute to the harm. See also
Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 776 (1984)
(“False statements of fact harm both the subject of the false-
hood and the readers of the statement.” (emphasis removed)).
“The fact that a congressional directive reflects unprovable
assumptions about what is good for the people, including
imponderable aesthetic assumptions, is not a sufficient reason
9
Similarly, the Act’s lack of a scienter requirement does not render the
statute overbroad, which would require its unconstitutional sweep to be
“substantial . . . [when] judged in relation to the statute’s plainly legiti-
mate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) (empha-
sis added).
3778 UNITED STATES v. ALVAREZ
to find that statute unconstitutional.” Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 62 (1973).

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 sen-
sible and sufficient. Neither the Constitution nor the Supreme
Court has required anything more specific.10

IV

Finally, how should one address the bleak dystopia hypoth-
esized 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 appar-
ently the core of self-expression itself—must fall. See Kozin-
ski Concurrence at 3756-59. 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 whatso-
ever. 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
10
Indeed, 18 U.S.C. § 1001—the leading federal prohibition on false
statements—was vastly expanded following the New Deal, out of Con-
gress’s recognition that certain false statements would impair government
functioning “even though the government would not be deprived of any
property or money.” Brogan v. United States, 522 U.S. 398, 412 (1998)
(Ginsburg, J., concurring) (emphasis added). This, like the Stolen Valor
Act, is but one example of Congress’s authority to prohibit false speech
based upon general, perhaps unprovable, assumptions about public good.
 UNITED STATES v. ALVAREZ 3779
call you about lunch”); exaggerations (“We go way back”);
and playful fancy (“There are eight tiny reindeer on the roof-
top”). Kozinski Concurrence at 3756, 3758-59. 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 dis-
cussion of the protections afforded false statements of fact.
See generally Alvarez, 617 F.3d at 1220-23 (Bybee, J., dis-
senting) (outlining the contours of false statements, as defined
by the Supreme Court).

More importantly, Chief Judge Kozinski appears to have
misunderstood my fundamental disagreement with the major-
ity. That false statements of fact are always unprotected in
themselves is not to say that such statements are always sub-
ject 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 identi-
fies “[p]olitical and self expression” as “at the very heart of
the First Amendment.” Kozinski Concurrence at 3763. And
false statements could not uniformly be prohibited without
regard to the effect on such forms of expression. But the prob-
lem 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 analy-
sis.11
11
Judge Smith now suggests that the need to protect “speech that mat-
ters” is an illusory restraint on the government. See Smith Concurrence at
3755 (questioning what sorts of speech “matter” and suggesting that lies
would be subject to “ever-expanding” prohibition). But, as has been dis-
cussed, the Supreme Court has indeed restricted the prohibition of some
false statements in the interest of political expression and public debate.
See supra Part II.A. Judge Kozinski’s “Kafkaesque world,” Smith Concur-
rence at 3755, suggests that personal self-expression may require similar
protection in some cases. In short, there are many areas of speech that
matter which may require protection in a given case, but the court must
actually address such areas in order to give the safeguard teeth.
3780 UNITED STATES v. ALVAREZ
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.

V

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 respect-
fully dissent from our court’s regrettable failure to rehear this
case en banc.

GOULD, Circuit Judge, dissenting from denial of rehearing
en banc:

I respectfully dissent from denial of rehearing en banc.
Although I agree with the suggestions of Judge O’Scannlain
and Judge Bybee in their respective dissents that the majority
in Alvarez is in tension with Supreme Court holdings in Gertz
and Garrison, I would emphasize a different approach in my
preferred form of analysis. I do not feel that sustaining Con-
gress’s Stolen Valor Act turns on the scope of a sentence from
the Supreme Court in any one particular case, whether Gertz,
or Garrison, or Stevens. Nor does it require that we say that
all false statements are not deserving of First Amendment
protection. Rather, 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.

I do not doubt that some statements of the Supreme Court
in other cases, read by the Alvarez majority to apply here,
have contributed to the majority’s reasoning. That is, of
 UNITED STATES v. ALVAREZ 3781
course, the common law method, and even dicta from the
Supreme Court warrants respect. See, e.g., Coeur D’Alene
Tribe v. Hammond, 384 F. 3d 674, 683 (9th Cir. 2004) (stat-
ing that Supreme Court dicta is entitled to “great weight”);
Official Comm. of Unsecured Creditors of Cybergenics Corp.
ex rel. Cybergenics Corp. v. Chinery, 330 F. 3d 548, 561 (3d
Cir. 2003) (en banc) (“Although . . . the Supreme Court’s
dicta are not binding on us, we do not view it lightly.”). But
here, both sides to the controversy can find sentences in prior
opinions to use in aid of their theories of the case. Moreover,
statements in prior opinions, regardless of potential utility in
a current dispute, cannot properly be interpreted as absolutely
binding in cases involving different types of facts not present
in a previous case decided by the Supreme Court.

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 mer-
iting constitutional protection. See United States v. Alvarez,
617 F.3d 1198, 1213 (9th Cir. 2010). Stated another way,
there should be no conclusion of unconstitutionality even on
the standard framed by the majority opinion. To uphold this
statute would not necessarily remove all false statements in all
contexts from First Amendment scrutiny.
3782 UNITED STATES v. ALVAREZ
The interests of society at stake counsel us to apply a more
permissive standard than the compelling state interest test
when assessing the Stolen Valor Act and to uphold it in whole
or part if possible. It would be too much to say that any
speech by any person about military affairs would fall outside
the First Amendment’s purview, for that inescapably would
lead us to approve sedition acts and criminal prosecutions of
those who criticize wars or military conduct. However, Alva-
rez was not criticizing actions of the military, he was just
lying about his military history. Given the military context
impelling Congress and the lack of substantial interest of
Alvarez or society in his falsehood, the Stolen Valor Act
should be sustained against Alvarez’s First Amendment chal-
lenge. We could leave for another day whether an as applied
challenge might be permissible on other facts.

Hence I respectfully dissent.