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.

Comments

[Rev. Arthur L. Kirkland]

Several sources are reporting that John Eastman has been disbarred, and the State Bar of California now appears to warn the public — in red — that Eastman is Not Eligible To Practice Law.

Does any one of the right-wing law professors — and fellow Federalist Society and Republican Party members — who operate this conservative blog have the courage to write a word about this? Just one? One Conspirator? One word?

How about the two professors who endorsed un-American felony defendant John Eastman for important public office? Any chance there is enough character there, in either of those two, to express a thought about Mr. Eastman these days?

Carry on, cowardly clingers.

#PaltryPartisanHacks

[Brett Bellmore]

Isn't the real first order concern here, "Congress shall make no law... abridging the freedom of speech, or of the press"?

There's a trick here, and you see it frequently in constitutional analysis: You start from the actual text of the Constitution, which promulgates some (Usually quite absolutely phrased!) prohibition or mandate. ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...") Then you derive from this a principle or value, at some suitably high level of abstraction.

Then you apply the principle you've derived in place of the actual textual prohibition or mandate. And suddenly you're violating the Constitutional command with a clean conscience. Denying people jury trials, for instance, though they're charged with a crime.

Or abridging freedom of speech or of the press, because you've decided the 1st amendment only applies to speech you think has value, though it nowhere says that.

[Malika]

Defamation? Obscenity? True Threats?

[mse326]

Even at the time there were exceptions like defamation or perjury for example.

The problem with your analysis is you are sticking to one phrase "shall make no law" but ignoring or more likely assuming the second phrase is as broad as you see it in "freedom of speech". It can't make a law abridging the freedom of speech but the question is whether the speech at issue is included in such freedom. Like having the freedom of movement doesn't mean I can move my fist into someones face, not all speech is covered by freedom of speech. Basically there is no freedom of speech to defamation so laws regulating it aren't abridging the freedom.

Now I have a very broad view of what is included in the freedom of speech, and am dubious that even known falsehoods (i.e. lies) can be abridged without a more tangible harm like defamation or fraud rather than mere emotional distress in the Stolen Valor case. But it is important to recognize where the debate lies.

Also if we take the amendment strictly to what it says then it only bars Congress. Even if we read Congress to mean legislature when applied to states through the 14th amendment that still leaves the executive and judiciary as unrestrained by the 1st amendment. That would mean retaliation claims are gone, executive cohersion of private companies is perfectly ok, all gag orders no matter how broad and for whatever reason. I think that is obviously false, which councils against such pure textual reading without looking at the context of which it was written.

[Brett Bellmore]

Even at the time they enacted the Alien and Sedition acts. Must have been constitutional, then?

[David Nieporent]

Area Man Passionate Defender Of What He Imagines Constitution To Be.

[Brett Bellmore]

Yeah, yeah, make fun of it, but I'm sure you've noticed the dynamic, too, even if you approved of how it was used.

The starting point here has to be the text, not the abstract principle you derive from the text. THAT has to be the first order concern. If your application of the principle drives you to violate the TEXT, you've got a really difficult job of justifying what you're doing.

[ThePublius]

Brett takes a lot of grief on here, especially on the open threads on Monday and Thursday, but I think a lot of it is unwarranted, and just juvenile ad hominem.

This is a very well written and well reasoned comment, and one I completely agree with.

The problem with people regulating speech is that they regulate, whether consciously or not, according to their viewpoint. A striking example of this is the current rationalization by people, mostly on the left, it seems, of censorship because of misinformation, or disinformation. It is clear to the objective observer in most of these cases is that misinformation only means facts, viewpoints, opinions, etc., with which they disagree. A good example is the current news about RFK Jr’s comments about who is a great threat to democracy – Biden or Trump. He was immediately mobbed online and accused of spreading misinformation, “fact checked,” and so on. And the folks doing so would go so far as to censor him based on his spreading of misinformation – one of the left’s current rationalizations for censorship, and it is they who determines what’s misinformation, what’s fact, and so on. They often apply the trope “no evidence” to anything they refute or disagree with, even in cases where it’s obvious that there IS plenty of evidence. Take Hunter’s laptop, for example.

And these about RFK Jr’s comments:

“”First of all, there is no evidence that President Biden has been at all personally involved in decisions about who should and should not get Secret Service protection,” Dale [CNN fact checker] said.”

“He then went after the censorship claims, stating, “We know there is a controversy about a White House communications with social media companies about what posts and accounts should remain up or not. There is no evidence that Biden has been involved whatsoever.””

“”Now, let‘s just be very clear. This is an important fact check. Joe Biden wasn‘t setting out to censor Kennedy‘s speech or his political critics. His administration was encouraging social media sites to monitor and take down false information about the COVID-19 pandemic. There’s no evidence that Biden himself was involved,” she [CNN’s Dana Bash] said. ”

Interested, non-partisan observers of these know there’s plenty of evidence.

And about misinformation:

“Kennedy was bludgeoned for his comment, including by The Washington Post’s Philip Bump and CNN’s Daniel Dale, both of whom accused the presidential candidate of spreading “misinformation” and implicating Biden in actions taken by his administration that he wasn’t explicitly involved in.”

“Washington Post columnist Philip Bump went after Kennedy in an analysis piece titled, “Misinformation-spouting RFK Jr. muses that Biden is threat to democracy.””

So, if lack of evidence and misinformation are rationalizations for government censorship, who determines what’s evidence and misinformation? This is not a court of law, after all, with evidentiary hearings, and an adversarial forum. It’s one side making the determination, honestly (in their view) or not, and always according to their viewpoint or preferred narrative. Take the covid-19 situation, for example. Many of those expressing alternative or opposing views to the govt. narrative were censored on social media and otherwise at the behest of the federal government!. This is (should be) a crystal clear violation of the 1st Amendment.

This is why the 1st should be nearly absolute. We can’t have censorship rationalized by what’s misinformation, what’s fact, what lacks evidence, and so forth, because those who would determine these things are inexorably subject to bias at the least, and at the worst, intentional suppression of a narrative that conflicts with their preferred narrative.

[ThePublius]

Allow me to emphasize a point here. Going back to one of the quotes, above:

“”Now, let‘s just be very clear. This is an important fact check. Joe Biden wasn‘t setting out to censor Kennedy‘s speech or his political critics. His administration was encouraging social media sites to monitor and take down false information about the COVID-19 pandemic. There’s no evidence that Biden himself was involved,” she [CNN’s Dana Bash] said. ”

Let's break this down. Apparently Dana Bash is admitting that the Biden administration was “encouraging social media sites to monitor and take down false information about the COVID-19 pandemic." And, it seems she thinks this is perfectly reasonable.

What's wrong with this? Well, two things. First, who determines what is "false information?" And how is that determined? Is there some kind of court for this, an adversarial forum, where people argue about what's true or false, and a judge or jury makes a determination? No. Some bureaucrat makes this determination - by some opaque means. And now we know, they were wrong about many aspects of covid-19, but quashed debate on social media. Second, regardless of "facts," the administration encouraging social media sites to monitor and take down supposedly false information is a clear</i? violation of the 1st Amendment. Why would this ever be O.K.? It's never O.K., in my opinion.

[MatthewSlyfield]

"Why would this ever be O.K.? It's never O.K."
I'm on board with it's never okay.

[Krayt]

Ministry of Truth

The Egyptian millitary banned satellite dishes and CNN, some years back, stating essentially The People could not handle statements without the government putting it in context for you.

Ministry of Truth. This isn’t a slippery slope. It’s a half-step around the corner.

The value in the First Amendment is not that there’s value in every last goober drooled from the mouth of a yokel. It’s in denying the power hungry their greatest club in their golf bag of tyrant tools.

I discerned this bleat for control as a setup attempt five years ago with a revisiting of the noble concept of the marketplace of ideas in the mass media. I felt something was funny in the emphasis, and I prognosticated, given it was dead center in attempts to force media companies to censor harrassment, that the real goal was to declare some ideas worthless, and therefore maybe, maybe kind sirs, we could ban them?

Sure enough, two weeks later, Radiolab (a great show everyone should listen to every week) held a debate, where the literal conclusion of one side was that some ideas were so bad, they should be banned.

Don’t do it. You won’t like the results some years down the road.

The absolutist nature of the Bill of Rights has served us well. Currently, the multibillionaire author of Harry Potter sits, challenging the UK to arrest her for misgendering someone.

Just a half step around the corner, the Ministry of Truth.

[Krayt]

Rude people are an annoyance. Tyrants, hope they don't consider you one.