Archive | Knowingly False Statements of Fact

No First Amendment Violation in E-Mail Impersonation Case

This is the Raphael Golb (Dead Sea Scrolls) case that has been much talked about over the last few years. Here is analysis in today’s People v. Golb (N.Y. App. Div. Jan. 29, 2013):

Defendant’s convictions arise out of his use of emails to impersonate actual persons. Nothing in this prosecution, or in the court’s jury charge, violated defendant’s First Amendment or other constitutional rights.

Defendant is the son of an expert on the Dead Sea Scrolls. Defendant set up email accounts in which he pretended to be other scholars who disagreed with defendant’s father’s opinion on the origin of the Scrolls. Among other things, defendant sent emails in which one of his father’s rivals purportedly admitted to acts of plagiarism.

Defendant’s principal defense was that these emails were only intended to be satiric hoaxes or pranks. However, as it has been observed in the context of trademark law, “[a] parody must convey two simultaneous — and contradictory — messages: that it is the original, but also that it is not the original and is instead a parody” (Cliffs Notes, Inc. v Bantam Doubleday Dell Pub. Group, Inc., 886 F2d 490, 494 [2d Cir 1989]). Here, the evidence clearly established that defendant never intended any kind of parody. Instead, he only intended to convey the first message to the readers of the emails, that is, that the purported authors were the actual authors. It was equally clear that defendant intended that the recipients’ reliance on this deception would cause harm to the purported authors and benefits to defendant or his father.

The court’s charge, which incorporated many of defendant’s requests, fully protected his constitutional rights, and the court was not required to grant defendant’s requests for additional instructions. The court carefully informed the jury that academic discussion,

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The Twitter @ComfortablySmug Case: Are Bans on Circulating Lies About a Catastrophe Unconstitutional?

The Wall Street Journal Law Blog reports on this question, and quoting Prof. Fred Schauer (a leading First Amendment scholar), our coblogger Stuart Benjamin, and me. The relevant statute makes it a crime to “knowing the information reported, conveyed or circulated to be false or baseless,” “circulate[] a false report or warning of an alleged occurrence or impending occurrence of a crime, catastrophe or emergency under circumstances in which it is not unlikely that public alarm or inconvenience will result.” For the tweets that might lead to a prosecution of @ComfortablySmug, see here.

As to the War of the Worlds question flagged at the end of the WSJ post, see 47 C.F.R. § 73.1217:

No licensee or permittee of any broadcast station shall broadcast false information concerning a crime or a catastrophe if:

(a) The licensee knows this information is false;

(b) It is forseeable that broadcast of the information will cause substantial public harm, and

(c) Broadcast of the information does in fact directly cause substantial public harm.

Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances.

Note: For purposes of this rule, “public harm” must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties. The public harm will be deemed foreseeable if the licensee could expect with a significant degree of certainty that public harm would occur. A “crime” is any act or omission that makes the offender subject to criminal punishment by law. A “catastrophe” is a disaster or imminent disaster involving

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Freedom of Speech and Knowing Falsehoods

United States v. Alvarez, the Stolen Valor Act case, dealt with an important and recurring First Amendment question: When may the government ban lies — not just innocent mistakes, or statements that wouldn’t reasonably be understood as factual assertions (e.g., fiction, parody, or obvious hyperbole), but knowing falsehoods? That question arises in a wide range of cases: libel, perjury, fraud, unsworn false statements to the government, knowingly false statements about a person that aren’t defamatory, knowingly false statements that intentionally inflict emotional distress (e.g., falsely telling someone that his wife or children have been injured), hoaxes that cause a public panic, and more. Some past Supreme Court decisions suggested that all such knowing lies are constitutionally unprotected. Some have suggested that only some limited subsets of such knowing lies are constitutionally unprotected. Which is it?

In Alvarez, the Court held, 6-3, that the Stolen Valor Act — which the Court read as criminalizing speakers’ lies about having supposedly received military decorations — violated the First Amendment. But lurking behind this was a more complicated 4-2-3 split that was in some ways a 5-4 split in favor of treating lies as generally less constitutionally protected.

Here’s what happened:

1. Four Justices — Justice Kennedy, joined by Chief Justice Roberts, and Justices Ginsburg and Sotomayor — took the view that even lies are fully constitutionally protected unless they fall within certain categories of punishable lies: defamation, perjury, fraud aimed at getting valuable goods or services, unsworn lies to government officials about official matters, and lies that claim that one is a government official or is speaking on behalf of the government. This list of First Amendment exceptions would presumably also includes nondefamatory false statements about individual people, which are punishable under the so-called “false light” tort. Though the plurality didn’t [...]

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Stolen Valor Act Struck Down

In United States v. Alvarez the Supreme Court has held that the Stolen Valor Act is unconstitutional. Justice Kennedy wrote for the Court, joined by the Chief Justice, and Justices Ginsburg and Sotomayor. Justice Breyer, joined by Justice Kagan, concurred in the judgment concluding the law is unconstitutional as written, but also suggesting that a more carefully drawn statute could survive First Amendment scrutiny. Justice Alito dissented, joined by justices Scalia and Thomas. The opinion is here.

For some of Eugene’s prior posts on this case see here and here. [...]

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Suing a Spouse — or a Lover — for Cheating (or Other Lies or Failures to Disclose)?

From Neal v. Neal (Idaho 1994):

Mary Neal contends that she has alleged a prima facie case of battery against Thomas Neal. Her battery claim is founded on her assertion that although she consented to sexual intercourse with her husband during the time of his affair, had she known of his sexual involvement with another woman, she would not have consented, as sexual relations under those circumstances would have been offensive to her. Therefore, she contends that his failure to disclose the fact of the affair rendered her consent ineffective and subjects him to liability for battery.

Civil battery consists of an intentional, unpermitted contact upon the person of another which is either unlawful, harmful or offensive. The intent necessary for battery is the intent to commit the act, not the intent to cause harm. Further, lack of consent is also an essential element of battery. Consent obtained by fraud or misrepresentation vitiates the consent and can render the offending party liable for a battery.

The district court concluded that Thomas Neal’s failure to disclose the fact of his sexual relationship with LaGasse did not vitiate Mary Neal’s consent to engage in sexual relations with him, such consent being measured at the time of the relations. We do not agree with the district court’s reasoning. To accept that the consent, or lack thereof, must be measured by only those facts which are known to the parties at the time of the alleged battery would effectively destroy any exception for consent induced by fraud or deceit. Obviously if the fraud or deceit were known at the time of the occurrence, the “consented to” act would never occur.

Mary Neal’s affidavit states that: “[I]f the undersigned had realized that her husband was having sexual intercourse with counter-defendant LaGasse, the undersigned would

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Gloria Allred Calls for Criminal Prosecution of Rush Limbaugh

Noted lawyer Gloria Allred, writing on the letterhead of the Women’s Equal Rights Legal Defense and Education Fund has asked the West Palm Beach County Attorney to prosecute Rush Limbaugh for violating Fla. Stat. § 836.04:

Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree ….

Readers of the blog know of my disapproval of Rush Limbaugh’s “slut”/”prostitute”; but while I condemned those remarks, they can’t be criminally punished.

1. Knowingly false statements of fact about a person are indeed constitutionally unprotected, whether they injure the person’s reputation (and are thus libel or slander) or would simply be highly offensive to a reasonable person (and are thus actionable under the false light tort. But that is so only when a reasonable listener would perceive these as factual assertions, not as hyperbole or as statements of opinion.

Thus, for instance, say that A asserts that B is guilty of “blackmail.” Blackmail is a crime, and accusations of crime are generally actionable libel. But if in context it is clear that the word is “rhetorical hyperbole, a vigorous epithet used by those who considered [B]‘s negotiating position extremely unreasonable,” then the accusation is constitutionally protected opinion — it is basically an assertion that B’s accurately described conduct is morally similar to blackmail, a statement of opinion (and perhaps clearly understood hyperbole). So the Court held in Greebelt Coop. Pub. Ass’n, Inc. v. Bresler (1970).

Limbaugh’s saying that Fluke’s testimony “makes her a slut” and “makes her a prostitute” falls into the same category: Listeners would understand is as “rhetorical hyperbole, … vigorous epithet[s] used by [Limbaugh,] who considered [Fluke's advocacy] extremely unreasonable,” an assertion (however logically unsound, [...]

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Emotional Distress, Knowing Lies, Xavier Alvarez, Warren Spahn, and the Bronze Star

In today’s United States v. Alvarez argument, the Justices at times asked: When should knowing lies be restrictable on the ground that they cause emotional distress? True statements and statements of opinion are, after all, generally protected even when they cause very serious emotional distress (see, e.g., Snyder v. Phelps). Yet, as some of the Justices pointed out, the rule is often different for knowing falsehoods, including ones that don’t fit within the narrow exceptions for defamation and financial fraud.

A classic example of speech actionable under the intentional infliction of emotional distress tort involves a knowing lie: “As a practical joke, A falsely tells B that her husband has been badly injured in an accident, and is in the hospital with both legs broken. B suffers severe emotional distress. A is subject to liability to B for her emotional distress.” (Restatement (Second) of Torts § 46 ill. 1.) This is of course the same tort involved in Snyder v. Phelps, yet the Justices seemed to agree that Snyder wouldn’t apply to lies; the Court’s earlier emotional distress tort decision in Hustler Magazine, Inc. v. Falwell suggested the same. Perhaps this case can be distinguished on the grounds that the speech here is not on a matter of “public concern” (a distinction that Snyder suggested might be relevant), but I doubt that this is the proper basis: Even if the lie is said to a politician about some politics-related trauma (“your husband the presidential candidate was just shot”), in a context where the speech was aimed to be conveyed to the public (imagine this being asked as a political stunt in a radio or television interview), I think the Justices would rightly conclude that the speech is unprotected. The fact that the speech is a lie seems [...]

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Tenth Circuit Upholds Stolen Valor Act

From today’s United States v. Strandlof (10th Cir. Jan. 27, 2012):

As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and therefore does not offend the First Amendment.

One judge dissents from the panel decision, reasoning:

The majority holds that such statements — at least when made knowingly and with an intent to deceive — are categorically beyond the protective universe of the First Amendment. In contrast, I believe that the First Amendment generally accords protection to such false statements of fact. Consequently, because it is a content-based restriction on speech, the Stolen Valor Act must satisfy strict scrutiny. This it cannot do.

The Supreme Court will have the last word on this, when it decides the same question this Term in United States v. Alvarez; but I suspect that the Tenth Circuit judges’ opinions in Strandlof, which are long and detailed, will be considered carefully by the Court. [...]

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“It Ain’t Pretty and We Should Not Pretend That It Is”

The broader context, from the dissent in In re Michels (N.Y. Comm. on Jud. Conduct Nov. 17, 2011):

As a Commission, our duty is to respect both the First Amendment and the quandary this system imposes upon judicial candidates. It ain’t pretty and we should not pretend that it is. Therefore, we should give every judicial candidate the benefit of the doubt when there is any margin to do so. That’s the least the First Amendment demands and the least we can do to be fair to the judges who face this unenviable process which is necessary to ply their idealistic, supremely difficult trade.

The decision involves an interesting and difficult question of the permissible scope of restrictions on misleading candidate speech in judicial campaigns; those interested in the subject should check it out. [...]

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Amicus Brief in United States v. Alvarez, the Supreme Court’s Stolen Valor Act Case

Prof. James Weinstein (Arizona State) and I filed an amicus brief last week in United States v. Alvarez, the Supreme Court’s Stolen Valor Act case. If you’re interested in the First Amendment and knowingly false statements of fact, you might want to have a look at the brief, whether in PDF form or in the posts below, which contain nearly all the substantive text (minus a few footnotes). Here’s the Summary of Argument:

Consistent with this Court’s repeated observation that “there is no constitutional value in false statements of fact,” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974), various state and federal laws restrict a wide range of knowingly false statements, and not just the familiar categories of defamation, fraudulent solicitation of money, and perjury. Most of these laws are broadly accepted as constitutional, and we expect that this Court will be-lieve that the laws should indeed be upheld.

The best way to do so would be for this Court to (1) treat knowing falsehoods as a categorical excep-tion to First Amendment protection, while (2) recognizing some limitations to this rule (for instance, with regard to statements about the government, science, and history) in order to avoid an undue chilling effect on true factual statements, statements of opinion, or other constitutionally valuable expression. Recognizing such a general First Amendment exception for knowing falsehoods will avoid a proliferation of First Amendment exceptions, and of cases upholding content-based speech restrictions under strict scrutiny — developments that would threaten the coherence of free speech doctrine and dangerously dilute the protection currently provided to valuable speech by the strict scrutiny test. [...]

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Alvarez Brief, Part II: How First Amendment Doctrine Could Deal With Such Restrictions on Knowing Falsehoods

There are six general approaches that this Court might take to these sorts of restrictions.

(For purposes of our discussion, we will set aside the question whether, under United States v. Stevens, 130 S. Ct. 1577, 1584-86 (2010), the approach must be chosen based solely on which First Amendment exceptions have been historically long recognized. [...]

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Alvarez Brief, Part II.A: Holding that Most Restrictions on Knowing Falsehoods are Unconstitutional

This Court could broadly state that restrictions on knowingly false statements are generally not permitted under the First Amendment, with the exception, perhaps, of the most firmly entrenched restrictions, such as those on defamation, perjury, and fraud. This approach would not only invalidate the Stolen Valor Act, but would also effectively overrule Time, Inc. v. Hill and Cantrell v. Forest City Publishing Co. and thus reject the false light tort; would lead to the conclusion that knowing falsehoods cannot lead to liability under the emotional distress tort (at least unless they are also defamatory); would invalidate bans on the use of deceptive party and group names in election campaigns; and so on. We are skeptical that this is the right result, and we doubt that this Court is inclined to embark on such a path. [...]

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Alvarez Brief, Part II.B: Recognizing Many First Amendment Exceptions for Various Kinds of Knowing Falsehoods

Another approach would be to hold that, though knowingly false statements of fact are generally constitutionally protected, there are many narrow exceptions to this rule: one for defamation, one for perjury, one for fraudulent solicitation of money, one for the false light tort, one for intentional infliction of emotional distress through knowing falsehoods, one for the knowing use of deceptive party names in campaigns, and so on. [...]

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Alvarez Brief, Part II.C: Recognizing Several Broad Exceptions Covering Various Kinds of Knowing Falsehoods

The danger discussed in the previous subsection could be diminished if, instead of recognizing a dozen exceptions, this Court recognizes a few exceptions that are capacious enough to fit the examples given above. Thus, for instance, this Court might recognize a general exception for “false statements about other individuals, companies, or products,” a category that includes defamation, false light, and trade libel. Likewise, this Court might recognize another exception for “deceitful statements that ‘cause the deceived person to follow some course he would not have pursued but for the deceitful conduct’” (quoting United States v. Lepowitch, 318 U.S. 702, 704 (1943)), or that attempt to cause such a result. This category would cover fraud, attempted fraud, perjury, unsworn knowing falsehoods to government agents, impersonation (the field from which the Lepowitch quote is drawn), misuse of trademarks in an attempt to deceive voters, and so on. [...]

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