The Volokh Conspiracy
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When Are Lies Constitutionally Protected?: Punishable Lies
I'm working on a draft article with this title, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (All the posts about it will go into this thread.) [UPDATE: The final paper has now been published by the Knight Institute.]
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Sometimes lies are constitutionally punishable: consider libel, false statements to government investigators, fraudulent charitable fundraising, and more. (I speak here of lies in the sense of knowing or reckless falsehoods, rather than honest mistakes.) But sometimes even deliberate lies are constitutionally protected. In New York Times v. Sullivan, the Court held that even deliberate lies (said with "actual malice") about the government are constitutionally protected. And in United States v. Alvarez, five of the Justices agreed that lies about "about philosophy, religion, history, the social sciences, the arts, and the like" are generally protected.
The Supreme Court hasn't explained where the line is drawn, and that leaves unclear where important areas of controversy—such as laws punishing lies in election campaigns—should fall. In this short article, I hope to offer an account that makes sense of the precedents, and offers a framework for making future decisions.
[I.] Punishable Lies
The Supreme Court has held that defamation, perjury, fraudulent attempts to get money, speech actionable under the false light tort, and lies that inflict severe emotional distress are all constitutionally unprotected.[3]
In Alvarez, the Court also suggested that the government may more broadly punish lies that involve "some … legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation"; "false statements made to Government officials, in communications concerning official matters"; and lies that are "integral to criminal conduct," a category that might include "falsely representing that one is speaking on behalf of the Government, or … impersonating a Government officer."[4] Minnesota Voters Alliance v. Mansky stated, in dictum, that "We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures";[5] but that case focused on speech in a nonpublic forum (polling places), and it's not clear that the Court meant to authorize such prohibitions in public speech more generally.
Lower courts have generally allowed liability or punishment for lies about others' products or property;[6] unsworn lies to government officials;[7] lies likely to provoke public panic;[8] lies about being a government official;[9] lies about having a particular university degree or professional license (regardless of whether the false representation is intended to defraud a prospective employer or professional client);[10] lies to voters about the authorship or endorsement of political campaign materials;[11] and a candidate's lies to voters about his own credentials.[12] (Query whether these cases are in some measure undermined by Alvarez.)
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Tomorrow: Unpunishable lies.
[3] Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (defamation); Konigsberg v. State Bar, 366 U.S. 36, 49 n.10 (1961) (perjury); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003) (fraud, even in the context of otherwise fully protected charitable solicitations); Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974) (false light); Time, Inc. v. Hill, 385 U.S. 374 (1967) (false light); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 56 (1988) (intentional infliction of severe emotional distress).
[4] 567 U.S. 709, 719 (2012) (plurality opin.); id. at 734 (Breyer, J., concurring in the judgment).
[5] 138 S. Ct. 1876, 1889 n.4 (2018).
[6] Unelko Corp. v. Rooney, 912 F.2d 1049, 1057-58 (9th Cir. 1990) (trade libel); SCO Group, Inc. v. Novell, Inc., 692 F. Supp. 2d 1287, 1296 (D. Utah 2010) (slander of title). This is so even though these torts do not injure the individual dignitary interests that have long justified defamation law, see Milkovich v. Lorain Journal Co., 497 U.S. 1, 22 (1990) (quoting with approval Rosenblatt v. Baer, 383 U.S. 75, 92-93 (1966) (Stewart, J., concurring)).
[7] E.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) (18 U.S.C. § 1001 generally); United States v. Konstantakakos, 121 Fed. Appx. 902, 905 (2d Cir. 2005) (statements on an immigration application); People v. Hanifin, 77 A.D.3d 1181 (N.Y. App. Div. 2010) (911 calls); State v. Bailey, 644 N.E.2d 314 (Ohio 1994) (statements to police officer); Howell v. State, 921 N.E.2d 503 (Ind. Ct. App. 2009) (statements to police officer). This likely includes knowingly false crime reports made to the public in general, if they seem certain to come to the attention of law enforcement officials. Haley v. State, 712 S.E.2d 838 (Ga. 2011) (rejecting First Amendment challenge to defendant's conviction when defendant released YouTube videos claiming to be a serial killer and was then prosecuted for making a false statement on a matter within the jurisdiction of a state agency).
[8] Schenck v. United States, 249 U.S. 47, 52 (1919) ("falsely shouting fire in a theatre"); 47 C.F.R. § 73.1217 (false radio or television statements that foreseeably cause "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties"); 18 U.S.C. § 1038(a)(1) (false statements claiming an attack involving weapons of mass destruction "has taken, is taking, or will take place"), upheld by United States v. Brahm, 520 F. Supp. 2d 619, 626-27 (D.N.J. 2007) (citing Schenck).
[9] Chappell v. United States, 2010 WL 2520627 (E.D. Va. June 21); United Seniors Ass'n, Inc. v. Social Sec. Admin., 423 F.3d 397, 404, 407 (4th Cir. 2005); State v. Wickstrom, 348 N.W.2d 183 (Wis. Ct. App. 1984). The statutes apply even when this does not involve fraudulently depriving anyone of money or property. Thus, for instance, the federal statute barring impersonation of federal officials, 18 U.S.C. § 912, has been read to require only "that the defendants have, by artifice and deceit, sought to cause the deceived person to follow some course he would not have pursued but for the deceitful conduct." United States v. Lepowitch, 318 U.S. 702, 704 (1943). "[A] person may be defrauded although he parts with something of no measurable value at all." Id. at 705; see also United States v. Robbins, 613 F.2d 688 (8th Cir. 1979); United States v. Hamilton, 276 F.2d 96 (7th Cir. 1960); State v. Messer, 91 P.3d 1191 (Kan. 2004). Nor are the statutes limited to impersonation of government officials who have coercive power such as that possessed by FBI agents or police officers. See, e.g., 18 U.S.C. § 912 (covering impersonation of any federal government agent); State v. Cantor, 534 A.2d 83 (N.J. Super. Ct. App. Div. 1987) (upholding conviction for defendant newspaper reporter's impersonating a county morgue employee in order to get information about a homicide victim from the victim's mother).
[10] Long v. State, 622 So. 2d 536 (Fla. Ct. App. 1993); People v. Kirk, 310 N.Y.S.2d 155 (Cty. Ct. 1969); State v. Marino, 929 P.2d 173 (Kan. Ct. App. 1996).
[11] This is so when the statements violate trademark law or other legal rules, even when no money is involved. E.g., United We Stand America, Inc. v. United We Stand, America New York, Inc., 128 F.3d 86 (2d Cir. 1997) (rejecting First Amendment arguments and upholding injunction against defendant's using the name "United We Stand, America"); United We Stand America, Inc. v. United We Stand, America New York, Inc., 941 F. Supp. 39 (S.D.N.Y. 1996) (stating that the Lanham Act applies not just to deceptive uses of another organization's name with respect to fundraising, but also with respect to "holding public meetings and press conferences" and "propounding proposals") (quoting Brach Van Houten Holding, Inc. v. Save Brach's Coalition for Chicago, 856 F. Supp. 472, 475-76 (N.D. Ill. 1994)); Tomei v. Finley, 512 F. Supp. 695 (N.D. Ill. 1981) (rejecting First Amendment arguments and enjoining Democratic candidates from using the acronym "REP," as in "Vote REP April 7," as shorthand for the Representation for Every Person Party, a name seemingly chosen precisely to deceive voters into thinking that the candidates were Republicans); Schmitt v. McLaughlin, 275 N.W.2d 587, 590 (Minn. 1979) (rejecting First Amendment arguments in holding that the defendant's use of initials "DFL" in advertisements and lawn signs violated a state law barring false claims of support or endorsement by a political party, there the Democratic Farmer Labor party); People v. Duryea, 351 N.Y.S.2d 978, 988 (Sup. Ct. 1974) (dictum) (stating that a ban on false claims of endorsement by a political party would be constitutional), aff'd, 354 N.Y.S.2d 129 (App. Div. 1974).
[12] Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 389 N.W.2d 446 (Mich. Ct. App. 1986) (upholding against First Amendment challenge a statute banning false claims that one is the incumbent); Ohio Democratic Party v. Ohio Elections Comm'n, 2008 WL 3878364 (Ohio. Ct. App. Aug. 21) (upholding against First Amendment challenge a statute banning candidates from claiming to hold an office that they do not currently hold). Alvarez of course also involved a politician's lies about his credentials, but that statute was not focused on candidate lies to voters.
