Constitutionally Protected Lies and the Practical Difficulties with the Fact vs. Opinion Distinction

[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.]

Keeping some kinds of lies—especially those about the government, about history, and about science—unpunishable is especially valuable given the frequent difficulty of drawing the line between opinion and factual assertions, exacerbated by the human tendency to draw that line based on our own attitudes towards the merits of the speech. This difficulty has been evident throughout the history of attempts to regulate alleged "fake news."

Consider, for instance, United States v. Cooper, one of the Sedition Act of 1798 cases. Cooper was convicted of false and malicious statements based essentially on these passages in a leaflet:

Nor were we yet … threatened [in 1797], under [President Adams'] auspices, with the existence of a standing army. Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace ….

Mr. Adams had not yet … interfered, as president of the United States, to influence the decisions of a court of justice—a stretch of authority which the monarch of Great Britain would have shrunk from—an interference without precedent, against law and against mercy. This melancholy case of Jonathan Robbins, a native citizen of America, forcibly impressed by the British, and delivered up, with the advice of Mr. Adams, to the mock trial of a British court-martial, had not yet astonished the republican citizens of this free country; a case too little known, but of which the people ought to be fully apprised, before the election, and they shall be.

Lies!, said Justice Chase to the jury (and the jury through its verdict agreed): a "scandalous and malicious libel," containing three "false" elements: The charge related to the nation's credit was supposedly false because the late 1790s weren't really a "time of peace." The condemnation of the president's conduct in the Jonathan Robbins matter was supposedly false because the president was required by treaty to hand Robbins over. And the "standing army" statement was supposedly false because (Justice Chase reasoned) the army couldn't be "standing" given that, in accordance with the Constitution, its expenses could only be authorized for two years.

Yet it seems clear that these were actually opinions. Whether one calls America's experience with France in 1798–1800 a time of "war" or "peace" is a matter of judgment and definition, not of fact. Indeed, it is sometimes called a "Quasi-War," and Adams himself later called it a "Half War," reflecting the uncertainty of the "war"/"peace" distinction. Likewise, whether "standing army" refers to any army that is in place for an extended time or only to an army that operates without need for frequent Congressional reauthorization is a matter of definition. And whether Adams' actions with regard to Robbins were "against law" is likewise a matter of opinion.

The same is true with some of the statements in Schaefer, the WWI "false reports" case. The alleged mistranslation of "breadlines" may have been a pure factual error (whether accidental or deliberate), but that was a secondary part of the Court's opinion. The more extended discussion of alleged falsehood came here:

The aid … asserted to have been rendered to England by President Wilson was represented to have been in opposition to the wishes of the people expressed, "by the unwillingness of their [the United States'] young men to offer themselves as volunteers for the war. But it will not rest there. The call for peace will come from the masses and will demand to be heard. And the sooner the better. No blood has been shed yet, no hate or bitterness has yet arisen against Germany, who has never done this country any harm, but has sent millions of her sons for its upbuilding. The sooner the American people come to their senses and demand peace, the better and more honorable it will be for this country." …

[The article] was … reinforced by another article July 7, 1917. It (the latter) had for headlines the words "The Failure of Recruiting," and recruiting failed, was its representation, notwithstanding an "advertising campaign was worked at high pressure" and "all sorts of means were tried to stir up patriotism." Its further declaration was that "Germany was represented as a violator of all human rights and all international law, yet all in vain. Neither the resounding praises nor the obviously false accusations against Germany were of any avail. The recruits did not materialize." The cause was represented to be "that the American, who certainly cannot be called a coward" did "not care to allow himself to be shot to satisfy British lust for the mastery of the world." And "the people instinctively recognize and feel" that "the pro-British policy of the Government,—is an error, which can bring nothing but injury upon this country." It was then added that "the nation therefore" was doing the only thing it could still do, "since its desires were not consulted at first." It refused "to take part." …

[The] statements were deliberate and wilfully false, the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort….

Yet surely the judgment of whether "the war was … demanded by the people" or whether it "was the result of the machinations of executive power" (or a mixture of the two) is a matter of opinion. A statement about what "the people instinctively recognize and feel" is obviously a guess, not an assertion of what can be empirically proved true or false.

And we see this continuing today. Thus, for instance, in 2020 an advocacy group sued Fox News claiming that its coronavirus coverage was "false,"[1] but many of the alleged falsehoods were opinions, such as about just how dangerous COVID was.[2] Likewise, the top item on then-President Trump's "fake news" award list[3]—Paul Krugman's wildly incorrect prediction the day after President Trump's election that "If the question is when markets will recover, a first-pass answer is never"[4]—was an opinion, as predictions inherently are.[5]

To be sure, this risk is present in all false statement cases, including ordinary libel lawsuits. Courts routinely have to decide whether a statement is a potentially actionable factual assertion or a constitutionally protected opinion, and are often alleged to have erred on the matter.[6] The risk of erroneously punishing opinions is not sufficient to categorically bar all liability for lies. But it may be one factor in favor of forbidding legal liability when alternative institutions can help correct the record.

[* * *]

Tomorrow: Implications of the institutional analysis in yesterday's post for some particular controversies.

[1] Complaint, Washington League for Increased Transparency & Ethics v. Fox News, No. 20-2-07428-4 SEA. (Wash. King Cty. Super. Ct. Apr. 2, 2020), https://perma.cc/54BT-WRAE.

[2] See Eugene Volokh, Lawsuit Against Fox for Its Coronavirus Coverage, Volokh Conspiracy (Reason), Apr. 3, 2020, 9:06 pm, https://reason.com/volokh/2020/04/03/lawsuit-against-fox-for-its-coronavirus-coverage/.

[3] Jason Schwartz, Trump Gives Out 'Fake News Awards' to CNN, N.Y. Times, Wash Post, Politico, Jan. 17, 2018, 7:45 pm, https://www.politico.com/story/2018/01/17/trump-fake-news-awards-345482.

[4] Paul Krugman, The Economic Fallout, N.Y. Times, Nov. 9, 2016, 12:42 am. In fact, the market rose 250 points by the end of that very day, was up nearly 1500 points from election day by inauguration day, Jan. 20, 2017, and was up by 10,000 points by the end of 2019. See Yahoo! Finance, Dow Jones Industrial Average (^DJI) [Historical], https://finance.yahoo.com/quote/%5EDJI/history.

[5] Others have of course noted the danger that opinions might be lumped together with true false statements of fact. See, e.g., Will Oremus, Stop Calling Everything "Fake News", Slate, Dec. 6, 2016, 6:58 pm, https://slate.com/technology/2016/12/stop-calling-everything-fake-news.html.

[6] See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).