Archive | Knowingly False Statements of Fact

Alvarez, Part II.D: Upholding Various Restrictions on Knowing Falsehoods Under Strict Scrutiny

Another approach would be to conclude that much of the listed knowingly false speech falls outside any First Amendment exception, but that the restrictions discussed in Part I nonetheless pass strict scrutiny, just as some restrictions on true statements or on opinions could in principle pass strict scrutiny. But this would pose three difficulties. [...]

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Alvarez, Part II.E: Recognizing a General First Amendment Exception for Knowing Falsehoods

The better solution, we believe, is to treat knowing falsehoods as categorically constituting a First Amendment exception, with some limitations we note below. Such a rule would reflect this Court’s repeated judgment that “there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003) (relying in part on Gertz’s holding that “the ‘intentional lie’ is ‘no essential part of any exposition of ideas’” in concluding that fraud is constitutionally unprotected); see also, e.g., Herbert v. Lando, 441 U.S. 153, 172 (1979) (quoting Gertz); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (“Untruthful speech, commercial or otherwise, has never been protected for its own sake.”) (citing Gertz); Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (“Calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *.’”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).

Such a rule would keep the list of exceptions manageably small, and thus less likely to grow. And by reserving strict scrutiny for content-based restrictions on true statements, statements of opinion, and other constitutionally valuable expression, such a rule would allow strict scrutiny in free speech cases to remain the very demanding, almost never satisfied test that it is today.

To be sure, as this Court’s libel cases have recognized, some restrictions on falsehoods also tend to unduly deter true [...]

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Knowingly False Statements of Fact and the First Amendment

As I had expected, the Supreme Court has agreed to hear the Stolen Valor Act case (United States v. Alvarez), and in the process decide the scope of First Amendment protection for knowingly false statements of fact. (We can assume, I think, that the Court will interpret the law as only applying to knowing falsehoods, and not innocent mistakes, and as applying only to factual assertions, and not clear fiction or parody.) Among other things, the decision could affect whether state laws banning knowing lies in election campaigns are unconstitutional, a matter on which lower courts are split. I’m on a family trip today and tomorrow, but if you’re interested in the subject, check out this set of posts, and especially this one, which I reproduce below:

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:

  1. Defamation (whether libel or slander) — false statements that injure someone’s reputation.
  2. False light invasion of

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3-Year Sentence in Ecuador for Newspaper Editor, Based on Alleged Criminal Libel of Ecuadorean President

CNN reported on the trial, which apparently stemmed from a column that “called [Ecuadorean President Rafael] Correa a dictator and claimed that the president had ordered security forces to open fire at a hospital full of civilians last September.” La Hora (Ecuador) reports on the sentence, which was apparently just handed down, and which also apparently included an $30 million damages award. [UPDATE: The story when I first read it said $80 million, which is what I quoted; it now says $30 million, but I still see $80 million in other accounts, so it's not completely clear to me what the true amount is.] I don’t know any more details, but I thought this was worth noting.

I should note, by the way, that the U.S. Supreme Court has never held that American criminal libel laws violate the First Amendment, and about a third of the states apparently have such statutes on the books. Moreover, there are quite a few prosecutions under such statutes in at least a few states, see here and here. But the prosecutions generally seem to lead to very modest sentences, rarely involve politicians or political matters, and therefore don’t draw much attention; and the prosecution must generally prove that the statements were false and that the speaker knew they were false or at least acted in reckless disregard of the known probability that they were false. I don’t know of any comparable sentences for alleged criminal libel of a politician, at least during recent American history, though I note again that in principle such a prosecution has not been foreclosed by Supreme Court precedent. Thanks to Jose K. Guerrero for the pointer. [...]

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Never Transmit False Data in Rhode Island

R.I. Gen. Laws § 11-52-7(b) makes it a misdemeanor to “intentionally or knowingly” “make[] a transmission of false data,” or to “make[], present[] or use[] or cause[] to be made, presented or used any data for any other purpose with knowledge of its falsity.” Section 11-52-6 also makes violators civilly liable, including for punitive damages. Nor is this section just limited to submitting false data for purposes of getting payment; subsection (a) of the same section makes that a felony.

I can’t imagine that the Rhode Island legislature meant to criminalize all distribution of false information online. And such a ban would be unconstitutional; for instance, the Court has held that one can’t criminalize even knowing falsehoods about the government generally, and it seems likely the same would be so as to knowing falsehoods about science and history generally (see pp. 6-8 of this amicus brief). But what then does the statute mean? Here is the full text:

(a) Whoever intentionally or knowingly makes a transmission of false data for the purpose of submitting a claim for payment, or makes, presents, or uses or causes to be made, presented, or used any data for the purpose of submitting a claim for payment with knowledge of its falsity and with knowledge that it will be used for any claim for payment, shall be guilty of a felony and shall be subject to the penalties set forth in § 11-52-5.

(b) Whoever intentionally or knowingly: (1) makes a transmission of false data; or (2) makes, presents or uses or causes to be made, presented or used any data for any other purpose with knowledge of its falsity, shall be guilty of a misdemeanor and shall be subject to the penalties set forth in § 11-52-5.

And here is a definition, in [...]

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Hoaxes and the First Amendment

Haley v. State, decided July 8 by the Georgia Supreme Court, is the latest case dealing with the thorny problem of the First Amendment and knowingly false statements of fact. Andrew Scott Haley apparently created an online hoax:

The evidence at trial, viewed in the light most favorable to the verdict, showed that Haley, under the user name “catchmekiller,” made and posted two videos on the YouTube website. The videos were part of an online murder mystery “game” for participants who could post and review comments on the YouTube page to learn the identity of the “catchmekiller.”

Haley posted his first video on February 1, 2009. He appeared in the video, but his face and voice were distorted. Haley said that during the game he would “confess to 16 murders.” Each week there would be a new video with new clues, which would lead to the body of a missing murder victim, and “[o]nce all 16 bodies are found, you’ll know exactly who I am and I will release the video or where I can be found.” The video also made numerous references to the highly publicized nature of the underlying cases, the involvement of law enforcement agencies in investigating the cases, and the possibility that viewers of the videos might seek to identify and find who was releasing them. Thus, Haley said on his first video:

The only clues that I am giving you are clues never released by the press or by a police department. What you may find out on a lot of these people was I’m going to tell you one thing, the police and the news will release something completely different. They may have released what she was wearing or what he is wearing that day and I’ll prove different. That’s the only way

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More on the First Amendment and False Statements of Fact

I’ve often blogged about whether there is (1) a general First Amendment exception for knowingly false statements of fact (though perhaps with some exceptions to the exception), or (2) a bunch of specific First Amendment exceptions, for fraud, defamation, perjury, highly offensive but nondefamatory factual statements about particular people (the “false light” tort), and also presumably trade libel, false statements to investigating officials, and so on. I’m inclined to view 1, though that’s a complicated question, especially in light of the Court’s endorsement in United States v. Stevens (2010) of a historical approach to First Amendment exceptions. The lower courts are split on the issue, and perhaps the Supreme Court will soon address it in deciding the constitutionality of the Stolen Valor Act (which the Ninth Circuit has held unconstitutional, and which the Tenth Circuit is now considering).

Here is the latest case I’ve seen that deals in some measure with this question, People v. Farmer (Ill. Ct. App. 2011). Do you think the law involved here is unconstitutional? Constitutional under a general “knowingly false statements of fact” exception? Constitutional under some other theory? (I focus on the legal analysis, not the specific facts of the case, because the Court was deciding whether the statute was unconstitutionally overbroad on its face.)

Section 32-5.3 of the Criminal Code of 1961 … provided [at the time of the offense]: “A person who falsely represents himself or herself to be the parent, legal guardian or other relation of a minor child to any public official, public employee, or elementary or secondary school employee or administrator commits a Class A misdemeanor.” …

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Eighth Circuit Holds That Even Lies Are Constitutionally Protected, Unless They’re Fraudulent or Defamatory, or Unless the Restriction is “Narrowly Tailored to a Compelling State Interest”

The case is yesterday’s 281 Care Committee v. Arneson, which holds that a ban on recklessly or knowingly false statements about ballot initiatives is unconstitutional unless it can be shown to be “narrowly tailored to a compelling state interest” (what’s called the “strict scrutiny” test). The court remands to the district court, where presumably the district judge will decide whether the ban can indeed be defended under this test. The test, however, is almost always fatal — there is only one unreversed Supreme Court majority opinion upholding a content-based speech restriction under strict scrutiny (Holder v. Humanitarian Law Project) — so unless courts water down this test for false statements of fact, the law will likely be struck down.

The Eighth Circuit agreed with a similar decision from the Washington Supreme Court, State ex rel. Pub. Disclosure Comm’n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998), and with the Ninth Circuit’s Stolen Valor Act decision, United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010) (see also the Ninth Circuit judges’ opinions discussing the denial of rehearing en banc). But its reasoning is inconsistent with the reasoning of Pestrak v. Ohio Election Comm’n, 926 F.2d 573 (6th Cir. 1991), which upheld a similar law on the grounds that “false speech, even political speech, does not merit constitutional protection if the speaker knows of the falsehood or recklessly disregards the truth.” The opinion did not cite Pestrak, or State v. Davis, 27 Ohio App. 3d 65 (1985), which reached the same result as Pestrak. (Davis dealt with false statements about a candidate, but included nonlibelous falsehoods, such as lies about oneself.)

This makes it even more likely that the Supreme Court will agree to hear [...]

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Fraud, Interference with Government Functions, and Lies About Yourself (Including Your Military Decorations)

There’s a hot controversy about the constitutionality of the Stolen Valor Act, which bans lies about one’s own military decorations. I tentatively think such lies may be punished; my view is that there is a general “knowing lies” exception to the First Amendment, albeit with some exceptions-to-the-exception in situations where punishing the lies poses an unacceptable risk of deterring true statements as well (e.g., lies about science and history, and “seditious libel,” which is to say lies about the government). Others argue the contrary, taking the view that there are instead several much narrower exceptions, for libel, fraud, false statements to government investigators, nondefamatory statements that place an identifiable person in a false light that a reasonable person would find highly offensive, and such.

I want to probe a bit further at this question, and argue that lies about one’s achievements (including one’s military decorations) are similar to attempted fraud and attempted obstruction of justice through false statements to government interests. All of these involve speech that may harm listeners by deceiving them; and attempts to do this should generally be punishable whether or not the deception involves money, and whether it interferes with government decisionmaking or with other decisionmaking. The exception is that some categories of lies should nonetheless be protected, because punishing them is especially likely to deter true statements as well. But lies about one’s own specifically identifiable accomplishments are especially unlikely to fall in that category.

Let me begin by pointing to fraud and attempted fraud. Fraudulent speech is punishable, even outside the context of normal commercial transactions that might fall within the less protected category of “commercial speech.” The Supreme Court has held that requests for charitable contributions are fully constitutionally protected, but that lies in such requests are punishable fraud. I [...]

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The First Amendment and Knowingly False Statements of Fact

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:

  1. Defamation (whether libel or slander) — false statements that injure someone’s reputation.
  2. 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).
  3. 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

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The First Amendment, Knowingly False Statements of Fact, and the Stolen Valor Act

The Ninth Circuit has just refused to rehear en banc the panel decision striking down the Stolen Valor Act; the opinions are here. I look forward to reading them shortly, but in the meantime I thought I’d note them for our readers. My post on the panel decision is here. My amicus brief urging the opposite result (in a different case that raises the same issue) is here, though that brief was written before the Supreme Court’s decision last year in United States v. Stevens, a decision on which the panel heavily relied. My post on a district court decision in the Fourth Circuit, reaching a result opposite the Ninth Circuit’s, is here.

If the government asks the Supreme Court to review the case, I expect the Court will grant certiorari. Though there is no inter-circuit split yet on the constitutionality of the Stolen Valor Act, the Court generally grants cert when a federal court of appeals strikes down a federal statute, since that’s a sort of inter-branch split (legislative plus executive vs. judicial); and the dissent by seven judges from the denial of rehearing en banc increases that likelihood. [UPDATE: The Court might also conclude that there is a broader split on the question whether knowingly false statements of fact -- outside the categories of libel, fraud, false light invasion of privacy, perjury, and likely false statements to government investigators -- are constitutionally unprotected. Compare this case and State ex rel. Public Disclosure Comm’n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998) (striking down a law banning knowingly and recklessly false statements in election campaigns) with Pestrak v. Ohio Elections Com'n, 926 F.2d 573 (6th Cir. 1991) (upholding a law banning such statements in election campaigns.]

It’s also possible that [...]

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District Court Upholds Stolen Valor Act Against First Amendment Challenge

This happened in Monday’s United States v. Robbins (W.D. Va.); the court disagreed with the district court in Strandlof and the Ninth Circuit panel in Alvarez, which held that the statute violates the First Amendment.

I think the Act, which criminalizes certain knowingly false claims of having received a military honor, is constitutional, for reasons I discussed in my amicus brief in Strandlof; and though the district court in Strandlof itself was unimpressed, I was pleased to see that the district court in Robbins cited the brief in its analysis. (Note that I think the Act can and should be interpreted to cover only statements that are asserted as fact, and that are made with the knowledge that they are false. Properly interpreted, it doesn’t cover honest mistakes, or statements that are in context jokes or fiction, just as other bans on knowingly false statements don’t cover statements that are in context jokes or fiction.) Here is an excerpt from the court’s reasoning:

[According to the Indictment,] Ronnie L. Robbins produced and distributed campaign material that [falsely] stated that he was a recipient of the Vietnam Service Medal and the Vietnam Campaign Medal. Robbins also wore the Vietnam Campaign Medal, the Vietnam Service Medal, and the Combat Infantryman’s Badge on his military uniform at events he attended as a member of the VFW honor guard. Additionally, Robbins allegedly provided falsely altered documentation to the VFW misrepresenting his military service and asserting that he had been awarded the Vietnam Service Medal and the Vietnam Campaign Medal. Finally, it is alleged that Robbins provided altered documents to a local newspaper corroborating that he had received those medals….

The First Amendment provides that “Congress shall make no law … abridging the freedom of speech.” Despite this broad language, there are recognized [...]

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Is There a First Amendment Exception for (Most) Knowingly False Statements of Fact, or Instead Several Exceptions for Libel, Fraud, Perjury, and the Like?

I’ve blogged about this important but unresolved question before, and it has arisen as well with regard to the Stolen Valor Act. The Supreme Court’s recent United States v. Stevens decision may bear on this as well, to the extent that it suggests that the categorical exceptions are limited to those that have been historically recognized — there needs to be some historical research on the question. (For my pre-Stevens analysis of the issue, see this amicus brief that I filed on my own behalf in a Stolen Valor Act case.)

So far, the Supreme Court has expressly upheld restrictions on knowing (or reckless or, in some instances, negligent) defamation; statutes banning fraud, including fraudulent solicitation of charitable donations (though nonfraudulent solicitation of charitable donations is generally treated as fully protected speech); and the false light tort, which compensates people for the emotional injury of having false or misleading statements said about them that “would be highly offensive to a reasonable person,” even when the statements don’t damage the subject’s reputation. It has also suggested, in Brown v. Hartlage, that knowingly or recklessly false statements in election campaigns are generally punishable, but it didn’t squarely hold this, and lower courts are split on the subject. Lower courts have uncontroversially upheld criminal punishment of perjury and out-of-court lies to government officials (for instance, under 18 U.S.C. § 1001). They have also generally upheld trade libel law, which imposes liability for (at least) lies about people’s and corporations’ products, not just about the people themselves. Only in one situation has the Court strongly suggested that even some recklessly or knowingly false statements are constitutionally protected: New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can’t punish even deliberate lies about [...]

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Ninth Circuit Strikes Down Stolen Valor Act, Holds That Knowing Lies About Whether One Has Received Medals Are Generally Constitutionally Protected

The 2-to-1 decision, came in United States v. Alvarez; I think that this is probably not quite right, see this amicus brief I filed in a similar case, though I think the question — what restrictions does the First Amendment impose on laws that restrict knowing lies? — is difficult, and the majority makes a solid argument for its position. I’m not sure whether I’ll have a chance to blog more about this in the next few days, but I thought I’d note the decision.

Note, by the way, that the decision did indeed hold that the Stolen Valor Act is unconstitutional even if limited to knowing falsehoods (a limiting construction that the court could have and should have imposed, if it were sufficient to make the statute constitutional); see PDF pp. 19-20. [...]

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