Alvarez

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.

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:

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, *667 an Air Force cross, a silver star, or a Purple Heart. Id. § 704(c), (d).

Xavier Alvarez won a seat on the Three Valley…