Journal of Free Speech Law: "Epistemic Disagreement, Institutional Analysis, and the First Amendment Status of Lies," by Prof. Mark Tushnet

The ninth of twelve articles from the Knight Institute’s Lies, Free Speech, and the Law symposium.

The article is here; the Introduction:

According to Justice Powell's opinion in Gertz v. Robert E. Welch, Inc., "[T]here is no constitutional value in false statements of fact." This is a claim about what we can call first-order free expression interests, the values both individual and social of the dissemination of statements. The first step in my argument is that the first-order claim requires substantial analysis, and that, though there might be no social value in the dissemination of a false statement of fact with respect to its content, a Millian argument of a certain sort shows that the first-order claim might be mistaken when other individual and social interests are taken into account. But, I argue, a different analysis is required when we come to lies, defined as false statements of fact known or believed by the speaker to be false. Like mere falsehoods, lies might not have social value with respect to their content, but the Millian argument that supports the conclusion that there might be social value in the dissemination of falsehood doesn't support the conclusion that there might be such value in the dissemination of lies.

The next step in the argument turns to second-order concerns, mostly about lies but with implications for the analysis of mere falsehoods. Second-order analysis deals with the institutions we have for implementing the rules regarding first-order individual and social interests. It asks whether those institutions have characteristics that allow them to generate results that are reasonably reliable in determining when the first-order interests will be promoted or impaired by regulation. Second-order concerns, I argue, support the conclusion that broad bans on the dissemination of lies should be viewed with great suspicion but that bans targeted at well-defined, quite specific lies shouldn't be seen as violating free expression principles. The principal second-order concern is the possibility that juries in particular (but other decision-makers as well) will wrongly infer from a statement's evident falsity that it must have been made with knowledge that it was false.

This argument has significant implications for First Amendment doctrine. For example, it suggests that United States v. Alvarez was wrongly decided because it failed to recognize that the second-order concerns it properly identified in connection with a "Ministry of Truth" were inapposite with respect to a statute prohibiting someone from lying about having received a military honor. The argument suggests that a statute creating a Ministry of Truth charged with identifying specific falsehoods that, if disseminated with knowledge of their falsity, would be constitutionally problematic because of the bureaucratic incentives the ministry would have to find something to do.