The Volokh Conspiracy
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Constitutionally Protected and Unprotected Lies: What's the Difference?
[I'm working on a draft article called When Are Lies Constitutionally Protected?, 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! I began with a brief discussion of constitutionally unprotected lies, and turn here to constitutionally protected ones. (All the posts about it will go into this thread.)] [UPDATE: The final paper has now been published by the Knight Institute.]
Why then are some lies punishable and others not? The dissent in Alvarez gave a sketch of the argument, and it seems likely the concurrence and the plurality would have agreed. Let's look at the passage in which the "philosophy, religion, history, the social sciences, the arts, and other matters of public concern" passage appears:
[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.
Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom sometimes turns out to be mistaken. And in these contexts, "[e]ven 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.'"
Allowing the state to proscribe false statements in these areas also opens the door for the state to use its power for political ends. Statements about history illustrate this point. If some false statements about historical events may be banned, how certain must it be that a statement is false before the ban may be upheld? And who should make that calculation? While our cases prohibiting viewpoint discrimination would fetter the state's power to some degree, see R.A.V. v. St. Paul, 505 U.S. 377, 384-390 (1992) (explaining that the First Amendment does not permit the government to engage in viewpoint discrimination under the guise of regulating unprotected speech), the potential for abuse of power in these areas is simply too great.
There are two different arguments working together here:
- It's especially "perilous" for the government—and it is especially accompanied by a "potential for abuse of power"—to decide the truth as to certain topics, because it "opens the door for the state to use its power for political ends." But such decisionmaking is presumably less perilous when individual libel lawsuits are involved, or when someone is prosecuted for, for instance, perjury or fundraising fraud.
- It's especially valuable to allow constant challenges to received wisdom as to certain topics, because that's the way knowledge in that field progresses. But it is presumably less valuable to allow constant "challenge" to the "consensus" about what some particular individual (even a public official) has done.
Yet while these concerns are doubtless relevant, it seems to me that the reason they are relevant is tied to a matter that was only implicit in the Alvarez opinions: the importance of alternative truthfinding institutions beyond the legal system, and the relative advantages of relying on those institutions in certain situations.
[B.] When Alternative Institutions Exist
Consider, for instance, science and history. John Stuart Mill famously defended freedom of speech in part on the grounds that the only real basis for "presuming an opinion to be true" is that "with every opportunity for contesting it, it has not been refuted." "Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right."
And modern science, history, and other academic disciplines rest largely on this principle. A theory is viewed as likely right (not certainly right) only to the extent that it has withstood, and continues to withstand, challenge. If everyone can try to refute the theory, but experts remain unpersuaded, that is reason for people—including those who lack the knowledge to independently evaluate the theory themselves—to rely on the experts' consensus. Most of us, for instance, know little about what happened to Armenians in the Ottoman Empire in 1915, and why it happened. If we learn that historians have generally reached the consensus that the cause was a deliberate genocide by the Ottomans, we would have some reason to endorse that.
But if we were to learn that this consensus endured not because it could constantly be challenged, but because it was enforced by threat of criminal prosecution or civil liability or violent attack or firing for those who challenged it, that would be reason to doubt the consensus. Perhaps, after all, there might be powerful arguments against the consensus, but ones that scholars have not been allowed to fairly consider.
To be sure, one might in principle distinguish lies, even in scientific debate, from honest errors. But in practice, given how hard it is for government officials to accurately determine whether someone is sincere—especially when that someone holds beliefs the officials sharply condemn—and the chilling effect caused by this risk of error, it may be best to provide categorical protection rather than just an "actual malice" standard. Such an argument, made by Justices Black, Douglas, and Goldberg, didn't carry the day as to public official libel lawsuits in New York Times v. Sullivan. But perhaps it is what tipped the balance in favor of categorical immunity as to statements about the government by the Sullivan majority, and in favor of categorical immunity as to statements about science, history, and the like in Alvarez.
What makes this categorical immunity as to science and history, though, is precisely that there is an institutional academic system with the ability and the incentive to deal with these questions. On one hand, this system benefits from the freedom to make false statements, since that freedom also frees people to make claims that are true but appear at first to be incorrect; or to make claims that prove to be partly false but partly true; or even to make claims that are entirely false but for which the process of disproving them produces important insights—all of which have been familiar phenomena in the history of science.
On the other hand, the system offers the prospect of "good [counsels]" (here, in the sense of likely accurate scientific or historical information) being a practically moderately effective "remedy" for "evil counsels" (here, in the sense of likely false claims about science or history), and not just a theoretically "fitting" one. This system of expert debate provides not just the abstract "power of reason as applied through public discussion," but also a real likelihood that a body of researchers, writers, and commentators will really apply reason to such matters. (I speak here of the entire system of maintaining and applying knowledge, which includes journalists and other knowledgeable laypeople as well as academics.)
The same might well be true as to speech about the government. Disputes about what is actually happening in a war, or whether there was fraud in an election, or whether racially disparate arrest rates by a particular police department stem from racially disparate crime rates or from discrimination by the police (or both), might likewise need an ongoing, iterative process like the scientific process. Here too any consensus might only be credible to the extent that it withstands ongoing attempts at refutation. And here too there are institutions that not only profit from the ability to freely debate the issue, but that have the ability and the incentive to rebut error: journalists, political activists, and the criticized government agencies themselves.
Indeed, when a government agency is accused of misconduct, its leaders will have huge incentives to rebut the accusations—both selfish incentives and public-regarding ones. They will be able to use government resources to offer such rebuttals; election administration agencies, for instance, have a legitimate reason to spend money to point to evidence why the election results should indeed be trusted. And they will likely be able to get the attention of activists and journalists who are interested in the subject.
Of course, none of these institutions are at all guaranteed to be reliable. They may fail to notice some falsehoods. They may fail to persuade the public—or at least a portion of the public—that some of the falsehoods are false. Indeed, they may sometimes themselves spread the falsehoods.
But it's all relative, which is also where the "peril" of legal suppression comes in. The institution of legal decisionmaking about the truth or falsity of a claim is not guaranteed to be reliable, either. Indeed, prosecutors, civil enforcers, and judges may be especially likely to be emotionally and politically invested in government policies, or in politically charged claims about history or science. Even jurors, as citizens, may be particularly likely to support one side or another. As between allowing the truth to be determined by the process of civil or criminal litigation, and having it be determined by ongoing debate among scholars, journalists, and others, the latter approach is likely to on balance be better.
[C.] When Alternative Institutions Are Largely Absent
The situation is quite different with ordinary libel, fraud, or perjury cases, where we don't expect resolution by an iterative process of theorizing and attempted rebuttal, or speech and counter-speech. When it comes to whether Daniel Connaughton offered improper favors to a grand juror, or whether Jeffrey Masson made particular statements to Janet Malcolm, we count on the justice system to determine the truth (just as we'd count on it to determine the truth if Connaughton were prosecuted for the favors, or if someone is sued for sexual harassment based on statements he made to a colleague).
And this toleration of libel lawsuits likely implicitly stems from the fact that it would be futile to expect alternative institutions—such as the academy or the media—to offer a more helpful resolution of these matters. The questions are generally too narrow to engage those institutions' attention, except perhaps to the extent of one or two newspaper articles. In principle, counter-speech could effectively rebut the lies; but in practice few people (other than the plaintiff) will have much interest in engaging in this counter-speech. In the absence of a government-provided forum for determining (however imperfectly) the truth, there is likely to be no other forum.
On top of that, the specificity of the target may call for some degree of compensation—at least in cases of damage to reputation—and not just for setting the record straight. And at least in most libel cases, government officials may be expected to be more dispassionate about whether some speaker indeed lied about some target than they would be in disputes about global warming or the history of Jim Crow or the presence or absence of election fraud.
In a sense, this echoes the Gertz v. Robert Welch, Inc. distinction between public figures and private figures. Public figures, the Court said in Gertz, "enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy": They can more effectively use "self-help" to "contradict the lie or correct the error and thereby to minimize its adverse impact on reputation."
Perhaps at the heart of the Alvarez categorical immunity for certain kinds of lies is a stronger version of that statement. Government entities have still more opportunity to counteract false statements both about themselves and about science and history, because of the resources they can marshal and the likelihood that the media and advocacy groups will indeed at least listen to them. And there are powerful institutions—though of course never perfectly reliable or effective ones—for counteracting false statements about history or science.
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Tomorrow: Facts and opinions.
 Whitney v. California, 274 U.S. 357, 375 (1927) (Whitney, J., concurring).
 Indeed, the plurality and concurrence in Alvarez concluded that the specific lies punished by the Stolen Valor Act—lies about having gotten a military decoration from the government—could be effectively rebutted by the government maintaining a database of actual recipients of such decorations, which members of the public could then check. 567 U.S. at 728 (plurality opin.); id. at 738 (Breyer, J., concurring in the judgment). This argument, though, stemmed in part from those opinions' conclusion that the law restricted even speech that wasn't particularly harmful, id. at 719 (plurality opin.); id. at 734 (Breyer, J., concurring in the judgment); for the concurrence, that justified evaluating the law under intermediate scrutiny rather than strict scrutiny, id. at 730–31.
 See Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989); Masson v. N.Y. Mag., Inc., 501 U.S. 496 (1991).
 The plurality and concurrence in Alvarez did note, see supra Part I, that the government could punish impersonation of government officials, as well as false statements to government officials. But these involve speech about the speaker, or to the government, not speech about the government; and they generally involve speech as to which the speaker is claiming some specialized personal knowledge. For reasons discussed in Part IV.D, that is the sort of speech for which institutional counterspeaker are least likely to be effective.