When are knowingly false statements of fact constitutionally unprotected? That’s the issue raised by the Stolen Valor Act ligitation, in which the question is whether Congress may ban people from lying about their having gotten certain military declarations. (I set aside for this post the question of when the government may punish or impose liability for negligently false statements of fact, which the law has often treated differently.
I set aside the similar question related to recklessly false statements of fact, which have often been treated the same as knowingly false statements, but which I’d like to skip for the sake of simplicity. I use the term “false statements of fact” to exclude fiction, parody, and humor that reasonable listeners would not understand as making factual assertions. And I set aside special questions posed by false commercial advertising.)
To begin with, note that this issue can arise in many different contexts:
- Defamation (whether libel or slander) — false statements that injure someone’s reputation.
- False light invasion of privacy — false statements that do not injure reputation but are nonetheless reasonably seen as highly offensive by their subjects (whether or not they “invade privacy” in the lay sense of the term). Classic examples of such statements, from Restatement (Second) of Torts § 652E, include knowingly falsely claiming that someone is endorsing a political movement that he is not endorsing, or knowingly adding false elements to the telling of another’s life story or the story of an incident from his life, even in situations where the false endorsement or the false embellishments are not so derogatory as to injure a person’s reputation).
- Fraud and attempted fraud — false statements used (successfully or not) to get money or other valuables, including in contexts (such as charitable solicitation) where true statements used to get money are fully constitutionally protected.
- Perjury — false statements made under oath.
- False statements to the government — false statements made not under oath, such as false crime reports to the police, false statements that obstruct justice by deceiving investigators, or more broadly false statements made to government officials and punishable under 18 U.S.C. § 1001.
- False statements made about the government, which have historically been labeled “seditious libel.”
- Knowingly false statements made about historical, scientific, or broad current events matters, such as false reports about what is happening in the war, false statements about the Holocaust, false statements about the facts (not just the projections) related to global warming, human intelligence, and so on.
- Knowingly false statements made about more specific scientific matters, such as knowingly false claims that a particular kind of produce contains particularly high levels of certain harmful chemicals, knowingly false claims that vaccines have caused certain harms, knowingly false denials that certain kinds of products (food, the blood supply, etc.) pose certain health risks, and so on (even outside the commercial advertising context of businesses lying about their own or a competitor’s products).
- Trade libel — knowingly false statements about specific companies’ products, which reduce the reputations of those products, even when they are made outside the context of commercial advertising (e.g., if they’re made in product reviews, in press releases by advocacy groups, and so on).
- Knowingly false statements made in election campaigns, whether about your own credentials, about which organizations have endorsed you, where voters need to go to vote, who is eligible to vote, and so on.
- Knowingly false statements about one’s military decorations.
Note that the Court has expressly approved of liability for categories 1 (defamation), 2 (false light), 3 (fraud), and 4 (perjury); lower courts have generally approved of liability for category 5 (false statements to the government) and 9 (trade libel). The Court has expressly rejected liability for category 6 (false statements about the government). Lower courts are split on category 10 (false statements in election campaigns). Categories 7 (false statements about science, history, and the like) and 8 (false statements about more specific scientific matters, outside trade libel) are largely unexplored, at least in recent decades. Category 11 is this case.
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What can courts do with all this?
1. No protection: They can say that false statements of fact lack constitutional value (which the Court has said, in Gertz v. Robert Welch, Inc. and other cases) and therefore are always constitutionally unprotected, at least if they are knowingly false. But that would be inconsistent with the Court’s ruling in New York Times, Inc. v. Sullivan that category 6 statements (false statements about the government, or “seditious libel”) are constitutionally protected, and the Court probably wouldn’t want to hold this as to category 7 (false statements about science, history, and the like), either. Among other things, punishing such statements would risk punishing even true statements or statements of opinion (if the prosecution and the factfinder err about what’s false) and innocent mistakes (if they err about what’s knowingly false), and might therefore deter even true statements or statements of opinion.
2. Full protection: Perhaps then courts could say that all such statements are constitutionally protected. In New York Times, Inc. v. Sullivan, three Justices (Black, Douglas, and Goldberg) would have completely rejected libel law, at least as to statements on matters of public concern (whatever precisely that means). But the Court has rejected that, as to categories 1 to 4.
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3. Full protection, unless the restriction is “narrowly tailored” to serving a “compelling government interest” (i.e., passes “strict scrutiny”): Even true statements, and statements of opinion, may theoretically be restricted if the restrictions are narrowly tailored to serving a compelling government interest; why not uphold, say, defamation law, fraud law, and perjury law under the same test? But in practice, strict scrutiny is rightly a very difficult standard to meet. Only one unreversed Supreme Court majority opinion has upheld a content-based speech restriction on strict scrutiny grounds — last year’s Holder v. Humanitarian Law Project — and even that opinion stressed that the restricted speech remained free if it was said without coordination with designated terrorist organizations. Likewise, a plurality opinion upholding a restriction on strict scrutiny grounds in Burson v. Freeman stressed that the restriction was only on speech within a short distance of polling places on election day, and the same speech remained free elsewhere.
It’s not clear that, applying strict scrutiny as demandingly as it has been applied to true statements (and to statements of opinion), libel law, perjury law, and fraud law would be upheld. Certainly true speech that injures people’s reputations, interferes with judicial processes, and causes people to lose money or things of value (e.g., via a boycott) is often constitutionally protected. Conversely, using normal strict scrutiny to produce several more cases in which content-based speech restrictions are upheld is likely to end up diluting that strict scrutiny for non-false-statement cases, too. (For more on why the Court’s decisions in this area are in practice mostly applying a rule of per se invalidation, though with some exceptions, see this article of mine.)
Finally, note that it’s hard to see how the false light invasion of privacy tort would be upheld under this test, at least without greatly watering down the threshold for what constitutes a “compelling government interest.” Yet the Court has held it to be constitutional, at least if limited to knowing falsehoods. See Time, Inc. v. Hill; Cantrell v. Forest City Publishing Co..
4. Full protection, except for historically recognized exceptions: The Court’s decision last year in Stevens v. United States — which was heavily relied on by the Ninth Circuit decision invalidating the Stolen Valor Act — stated that speech is fully protected (though that protection might be overcome under strict scrutiny) unless it fits within historically established First Amendment exceptions. Unfortunately, there hasn’t been much research on whether the historical exception for libel law has been sufficiently articulated in the past as dealing with falsehoods more broadly. But if it hasn’t, then this might suggest that only category 1 (defamation), 3 (fraud), and 4 (perjury) speech is categorically unprotected.
But this too seems inconsistent with the Court’s upholding the false light tort (category 2). (The panel decision striking down the Stolen Valor Act responded to this by saying, “We are not persuaded that Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001), is anything more than a variation on defamation jurisprudence. Hoffman applied the actual malice standard from Gertz/Garrison-Sullivan in a case involving a magazine’s alleged creation of a false impression that a famous actor posed for a photograph. Id. at 1187; cf. also Time, Inc. v. Hill, 385 U.S. 374 (1967) (holding constitutional a state law imposing civil liability for malicious false statements that invade a private individual’s right of privacy).” But false light is quite different from defamation — defamation law aims at speech that injures people’s reputation; false light does not require any such injury to reputation.) And it would also suggest that false statements to the government (category 5) — for instance, false reports to the police that do not libel a particular person, or false statements that obstruct justice — might be constitutionally protected. Maybe that’s right, but I doubt it.
5. Full protection, except for speech that is demonstrably harmful: I’ve heard some people defend the constitutionality of the false light tort, and of laws that ban knowingly false statements to the government that interfere with law enforcement (e.g., false crime reports, obstruction of justice, and the like), on the grounds that knowingly false statements can only be punished if the speech is demonstrably harmful. Causing serious offense and emotional distress to people through knowing falsehoods about the time, the theory goes, is demonstrably harmful; so is lying to the police about some crime, and wasting time that they could have spent catching criminals. But lying about one’s military honors, or lying in an election campaign, is not so harmful.
But I wonder why that would be so. Why isn’t deceiving voters in ways that are relevant to their casting a vote as harmful as deceiving contributors in ways that are relevant to their contributing money to a charity? Likewise, most people lie about their military honors in order to deceive listeners into giving them something — a vote (as in the Ninth Circuit’s Stolen Valor Act case itself), money, friendship, sex, respect, and so on. To be sure, the Act doesn’t require proof of such a harm, but such a harm would almost always either be present or intended. (That’s the premise of libel law, incidentally: Defamatory knowing falsehoods are very likely to cause harm to their targets, so the targets usually don’t have to prove such harm.) Such intent is enough for attempted fraud prosecutions; why shouldn’t it be enough for attempts to defraud people, though not necessarily out of money, through lies about military heroism?
Moreover, if the government should have to prove present harm, wouldn’t this just mean that it would have to show some listener who could testify that he gave the speaker a vote, money, a free drink, sex, or what have you in reliance on the lie? Or is it that defrauding people out of money is constitutionally punishable, but defrauding them out of other things is on the other side of a constitutional line — and, if so, exactly why?
6. No protection in most cases, protection in some categories of cases where liability is likely to substantially interfere with public debate: This is the reconciliation of the cases that I offered in my amicus brief in the Strandlof case; it helps explain the constitutionality of punishing categories 1 (defamation), 2 (false light), 3 (fraud), and 4 (perjury), the likely constitutionality of punishing categories 5 (knowingly false statements to the government) and 9 (trade libel), the unconstitutionality of punishing category 6 (seditious libel), and the likely unconstitutionality of punishing category 7 (knowingly false broad statements about science, history, and current events). It would also suggest the constitutionality of punishing category 11 (lies about your own military medals, and likely about other credentials), and of sufficiently precisely crafted bans on particular kinds of statements in category 10 (e.g., knowingly false statements about your own credentials, or your own endorses, in election campaigns) and possibly in category 9 (e.g., knowingly false statements about specific facts about specific kinds of products). On the other hand, it’s not clear that it’s consistent with the historical focus seemingly required by Stevens. And it does leave a good deal of uncertainty — at least until more precedents have been set — about some rather important questions, such as the extent to which the government may punish knowing falsehoods about history, in election campaigns, and so on.
This test would also likely allow punishment of various kinds of lies in one’s personal life — a situation colorfully and powerfully condemned by my former boss Chief Judge Kozinski. But I don’t think this is as much of a problem as he suggests. First, in practice few of these lies would actually be punished. And second, I’m not sure why there is a First Amendment justification for protecting such lies.
For instance, consider lies aimed at getting sex (whether misrepresentations of one’s wealth or achievements, denials that one has a spouse or a sexually transmitted disease, denials to one’s spouse that one has been cheating, denials to one’s spouse that one has been doing something — such as gambling heavily — that would make the spouse angry, and so on) or aimed at staying married (again, denials to one’s spouse that one has been cheating). They are common, and there are lots of good reasons for the legislature to stay away from punishing them. But I’m not sure why such lies should be any more constitutionally protected than lies aimed at getting money, which are punishable as fraud (but which of course are rarely so punished, in personal, non-business contexts). There are important reasons not to heavily regulate such behavior using the law, but I don’t think they are First Amendment reasons.
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Naturally, this list of possible approaches is not exhaustive; and, as you can see from the discussion, I think all of them have some problems, both with reference to the Court’s precedents (which the Court can of course reverse) and to what makes sense to me. But I hope that the list of approaches, and the list of scenarios in which the problems often arise, would be helpful to people who are thinking about these questions.