Category Archive '9th Circuit Rulings'

18 Aug 2010

9th Circuit Panel Views Lying About Valor Awards as “Free Speech”

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Xavier Alvarez, decked out in a US Army uniform with medals he never earned

In November of 2006, Xavier Alvarez was elected to represent the city of Pomona on the board of the Three Valleys Municipal Water District as a war hero who had been awarded the Medal of Honor.

Alvarez claimed to be a retired 25-year Marine Corps veteran, who was many times wounded and had received the nation’s highest award for military valor for serving as a helicopter pilot and rescuing US POWs from behind enemy lines during the War in Vietnam. In fact, Alvarez was never in the military, and was 17 years old when the Vietnam War ended in 1975. (Inland Valley Daily Bulletin link)

In 1977, Alvarez was exposed and was prosecuted and pled guilty under the Stolen Valor Act of 2005, which made the unauthorized claim, display, manufacture, or sale of US military decorations or awards a federal misdemeanor. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000, but then appealed claiming the 2005 law violated his right to free speech (!).

Preposterous, wouldn’t you say?

But not too preposterous to persuade a three-judge panel of the 9th Circus. Judge Milan D. Smith opined, joined by Judge Thomas Nelson, as Josh Gerstein reports, that there is a free speech right to lie.

    We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.

While asserting that they were not endorsing “an unbridled right to lie,” Smith and Nelson said regulations of false speech that have been upheld by the courts were limited to narrow categories where a direct and significant harm was caused. But, they said, the harm caused by people making false statements about military decorations was not evident.

Both of these judges were Bush appointees, leading one to conclude that there must be something in the water out there.

30 Jul 2010

9th Circuit Upholds Disabled Americans’ Right To Watch Dinner Preparation

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A typical Chipotle Mexican Grill in operation

Walter Olson, now operating out of CATO, who makes something of a specialty of chronicling the most spectacular cases of legal absurdity, was (quite deservedly) particularly proud of finding this one yesterday.

The Chipotle Mexican Grill heralds its “Chipotle Experience,” in which customers can watch their food being made behind a glass partition. Now a Ninth Circuit panel (including famously liberal judges Stephen Reinhardt and Dorothy Nelson) has ruled that the “experience” violates the Americans with Disabilities Act, to quote the AP, “because the restaurants’ 45-inch counters are too high. The company now faces hundreds of thousands of dollars in damages.” The ruling arrives just in time for the ADA’s 20th anniversary, which, as the Washington Post notes, is serving as the occasion for a virtual binge of new regulation-making by the Obama Administration and Congress.

Online reaction to the Chipotle case is tending toward the negative if not incredulous, even at places like the San Francisco Chronicle (“Good Lord, people are complaining because they can’t see a taco, get a life.”) But it’s also worth noting this significant passage (via Ted Frank at Point of Law) from the court record that the Ninth Circuit panel had to overcome:

    The [district] court found that [wheelchair-using complainant] Antoninetti had failed to show irreparable injury because he had not revisited either restaurant after Chipotle adopted its written policy and because his “purported desire to return to the [r]estaurants is neither concrete nor sincere or supported by the facts.” It also stated that Antoninetti’s “history as a plaintiff in accessibility litigation supports this Court’s finding that his purported desire to return to the [r]estaurants is not sincere. Since immigrating to the United States in 1991, Plaintiff has sued over twenty business entities for alleged accessibility violations, and, in all (but one) of those cases, he never returned to the establishment he sued after settling the case and obtaining a cash payment.”

“We hold these truths to be self evident, that all men are endowed by their Creator with the right to be entertained by watching their burrito being prepared.”

It’s a wonder that, in California in particular, the blind don’t get to sue Hollywood for making moving pictures they cannot see, and the deaf don’t get to collect penalties from concert venues and the opera.


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