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.
Archive for the ‘Knowingly False Statements of Fact’ Category
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 statements. “[P]unishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press.” Gertz, 418 U.S. at 340. Because of this, reasonable mistakes and even negligent falsehoods should generally remain constitutionally protected, except in special cases, such as when compensatory damages for negligent errors are sought by private-figure libel plaintiffs, as in Gertz.
Furthermore, even some restrictions on knowing falsehoods involve an unusually high risk of factfinder error, factfinder bias, prosecutorial bias, legislator bias, or interference with scientific or historical investigation. For instance, New York Times Co. v. Sullivan held that false statements about a government agency (as opposed to a particular government official) may not be punished, period. “For good reason, ‘no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.’” New York Times Co. v. Sullivan, 376 U.S. at 291 (quoting City of Chicago v. Tribune Co., 139 N.E. 86, 88 (Ill. 1923)); see also Rosenblatt v. Baer, 383 U.S. 75, 83 (1966) (following New York Times Co. v. Sullivan on this point).
One other possible approach is to view knowing falsehoods as “low-value” speech, so that restrictions on the speech are judged under intermediate scrutiny rather than strict scrutiny. Commercial speech, for instance, is generally treated this way.
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:
- 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.
What can courts do with all this?
Continue reading ‘Knowingly False Statements of Fact and the First Amendment’ »
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.
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 case it’s helpful, from § 11-52-1:
(10) “Data” means any representation of information, knowledge, facts, concepts, or instructions which are being prepared or have been prepared and are intended to be entered, processed, or stored, are being entered, processed, or stored or have been entered, processed, or stored in a computer, computer system, or computer network.
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 I’m gonna be able to prove that this video is real because I have knowledge that the police know about, the FBI know about and you don’t. So every week a new clue, every clue leads to a new body, every new body leads to a new clue that eventually leads to me, hoping that no one else finds out who I am and why I’ve done this. Don’t try to chase me. Don’t try to catch me.... The first person to solve all murders becomes the hero.... Be prepared to answer to the police, to answer to the FBI, to answer to the News. They’re all gonna want to know how you did it .... If you decide to play the game, please go to video number two.
The video then listed the first “clues,” which related to the case of Tara Grinstead, a young Georgia schoolteacher who had disappeared in 2005. [More details of the hoax omitted; see the opinion if you want to read them. -EV]
The court’s account suggests that the statements were reasonably read as actually claiming that the poster was the killer, rather than being clearly visible to be fiction or parody. (Such fictional or parodic statements are constitutionally protected, precisely because they are not reasonably seen as making false statements of fact.) Does the knowing falsehood strip the statements of First Amendment protection?
Yes, said the court, when the defendant “contemplated that [the statements] would come to the attention of” the police. In that situation, the statements violate the Georgia false-statements-to-the-government statute, which criminalizes “knowingly and willfully ... mak[ing] a false ... statement ... in any matter within the jurisdiction of any department or agency of state [or local] government.” And when limited to knowingly false statements that are “knowingly and willfully [made] in a matter within the jurisdiction of a state or local department or agency,” which is to say statements when the defendant “contemplated that it would come to the attention of an agency with the authority to act on it,” the statute is constitutional — even when the defendant did not “ma[k]e the false statement directly to the government agency.”
It is debatable whether a false statement, standing alone, lacks any First Amendment protection, as discussed at length by the majority and dissenting opinions in United States v. Alvarez, 617 F3d 1998 (9th Cir. 2010) [a case striking down the Stolen Valor Act -EV]. However, a knowingly and willfully false statement that is made knowingly and willfully in a matter within a government agency’s jurisdiction is a lie that threatens to deceive and thereby harm the government, if only because the government may need to expend time and resources to determine the truth. See id. at 1212-1213. Such harm would not be self-inflicted by the government, as might be said if an agency reached out to act on a false statement someone made without any expectation that it would reach the government. Instead, the State may lawfully punish such a course of potentially deceptive and injurious conduct.
Earlier the court does mention that reading the statute more broadly, to cover any knowingly false statements that might eventually come to the attention of a government agency that has jurisdiction over the behavior described in those statements — even when the speaker does not expect that this will happen — might raise serious First Amendment problems:
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.” ...
Continue reading ‘More on the First Amendment and False Statements of Fact’ »
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 either this case or Alvarez — likely Alvarez, since it will be a few years until the district court and the Eighth Circuit resolve the strict scrutiny question — and decide whether (1) there’s one First Amendment exception for knowingly or recklessly false statements of fact (though with exceptions to the exception, for instance with regard to libels about the government, which are categorically protected), or (2) there are several narrower First Amendment exceptions, for libel, fraud, perjury, false statements that tend to obstruct law enforcement, nondefamatory statements that place someone in a false light, and so on. For more on the subject, see my amicus brief in a Stolen Valor Act case, where I argued in favor of position 1 (though before the Court’s recent United States v. Stevens decision, which seemed to call for a more historical analysis), as well as this post on different kinds of fraud.
Note, though, that the Stolen Valor Act strikes me as an unusually strong case for finding that the lies are unprotected, since banning lies about oneself is especially unlikely to deter constitutionally protected speech — one is rarely mistaken about whether one has won a medal. There’s a plausible argument that lies in an election campaign should be constitutionally protected even under option 1, just as lies about the government, and probably lies about science and history, are constitutionally protected. Punishing such lies is indeed likely to deter even true statements, because speakers who think they’re telling the truth might worry that they might be mistaken, or that a future prosecutor or jury might mistakenly believe that the statements are false. On the other hand, as I argued in my fraud post, it’s not clear why fraudulent attempts to get money (say, charitable donations) should be punishable but fraudulent attempts to get ballot signatures or votes should be constitutionally protected, and why fraudulent statements that interfere with government decisionmaking (e.g., false crime reports, or false statements during an investigation) should be punishable but false statements that interfere with voter decisionmaking should be constitutionally protected.
So this is a difficult question throughout, both as to whether position 1 or position 2 is right, and as to what one does in either position — what areas of constitutionally protected lies one recognizes under position 1 (to minimize the deterrence of true statements), or what specific constitutional exceptions one recognizes under position 2. But one way or the other, there seems to be enough of a circuit split building that the Court is likely to agree to consider the issue in the coming few years.
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 take it that fraud is seen as constitutionally unprotected because it harms listeners by causing them to give up money based on a falsehood. The loss to each listener may be slight — likely just a few dollars — but the listener has still been wronged, and the law may punish the speaker for that.
Now let’s turn to false statements to government investigators, which are also punishable. They might be punished as perjury, if they are under oath; under 18 U.S.C. § 1001, which bars knowingly false statements to federal investigators; under obstruction of justice law, if they interfere with a criminal investigation; under statutes banning the filing of false police reports; and so on. And there too the concern is that the speech may harm listeners — the government officials — by causing them to waste time and effort (and maybe make wrong decisions) based on a falsehood.
I also take it that both fraud and false statements to investigators are punishable even if the listener quickly sees through the lie, and the lie therefore doesn’t actually cause harm to the listener. Attempted fraud and attempted obstruction of justice by lying are constitutionally unprotected. Also, such statements (whether or not initially successfully) are punishable even though listeners might often be able to avoid being defrauded or misled by being extra skeptical.
My question is: What, if anything, is the constitutional distinction between lies that might injure listeners in those ways, and lies that might injure listeners in other ways — for instance, by leading listeners to vote based on a lie, to give someone a job based on a lie, to give someone a business opportunity based on a lie, or even to make friends with someone based on a lie? Is money so constitutionally special that an attempt to get money by a lie may be punished but attempts to get other valuable (even if intangible) things may not be? Is the government is so constitutionally special (for these purposes) that lies that interfere with government decisions may be punished but lies that interfere with people’s voting decisions, business decisions, or social decisions may not be?
I recognize that there might be good policy reasons for treating some lies as punishable and others as not punishable. But my question here is whether the First Amendment should be read as mandating such distinctions. (Note that I focus on knowing lies, which is to say knowingly false statements that are intended to be believed; I set aside honest mistakes, fiction, parody, and the like.) In particular, let me ask you folks what you think about these laws, as a matter of First Amendment law and not jut of sound criminal justice policy:
- Laws that ban attempting to get money (including charitable contributions) through knowingly false statements about yourself.
- Laws that ban attempting to get a job — which would involve the payment of money by the employer to you — through knowingly false statements about yourself. (Some states, for instance, specifically ban the use of false academic degrees to try to get a job.)
- Laws that ban attempting to get elected to a government office — which would involve the payment of money by the taxpayers to you — through knowingly false statements about yourself.
- Laws that ban attempting to interfere with police decisionmaking by telling the police knowingly false statements about yourself.
- Laws that ban attempting to interfere with voter decisionmaking by telling voters knowingly false statements about yourself (even when you are, for instance, an endorses of the candidate and not the candidate yourself, so you’re not trying to get money for yourself).
- Laws that ban attempting to interfere with people’s decisionmaking about their sex lives by telling prospective sexual partners knowingly false statements about yourself.
- Laws that generally ban making false claims about your military medals, on the theory that most such claims are attempts to interfere with listeners’ decisionmaking about something, whether money, sex, respect, affection, and so on.
Should all of these laws be constitutional? Should none of them be constitutional? If some should be constitutional and others shouldn’t be, where would you draw the line and why?
(Note that I limit the items in this list to knowing lies about yourself. I recognize that as we get to alleged knowing lies about other matters, the risk of error becomes higher, as does the danger that banning lies will deter true statements as well.)
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.
What can courts do with all this?
Continue reading ‘The First Amendment and Knowingly False Statements of Fact’ »
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 before the Court considers a government petition, likely in the Fall, there’ll be a contrary decision from the Tenth Circuit, in the Strandlof case; oral argument in that case is scheduled for May 12, 2011. (The Fourth Circuit case hasn’t yet been appealed, because the defendant hasn’t yet been sentenced.) Thanks to How Appealing for the pointer.
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 categories of speech that are excluded from this protection. [Footnote: ... In its recent opinion in United States v. Stevens, 130 S.Ct. 1577, 1584, 1586 (2010), the Supreme Court noted examples of excluded categories such as obscenity, defamation, fraud, incitement, speech integral to criminal conduct, and child pornography. There is no indication that the Court intended to make this listing exhaustive, and, indeed, its mention of "defamation" as an excluded category supports the historical exclusion of false statements of fact. See Alvarez, 617 F.3d at 1225 (Bybee, J., dissenting).]
One of the recognized categories involves falsity. While “there is no such thing as a false idea” undeserving of protection, Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974), “there is no constitutional value in false statements of fact.” Id. at 340.... The general exclusion of false statements from First Amendment protection is consistent with Supreme Court cases dealing not only with defamation, but also with fraud, see Ill. ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612 (2003) (“[T]he First Amendment does not shield fraud.”), and commercial speech, see Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 771 (1976) (holding that false statements in advertising are not protected).
I would have added to this list Cantrell v. Forest City Publsihing (1974), in which the Court held that false light invasion of privacy tort is constitutional as well, even though it restricts speech. (See also Time, Inc. v. Hill (1967).) In any case, if you’re interested in the issue, you should read the rest of the opinion; among other things, the court goes on to explain why some kinds of knowing falsehoods — such as libels against the government — remain constitutionally protected, and why the knowing falsehoods banned by the Stolen Valor Act differ from those protected knowing falsehoods.
I take it the defendant will appeal here, just as the government has appealed in Strandlof, and just as the government has asked for rehearing en banc in Alvarez.
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 the government (the traditional definition of “seditious libel”), so long as no particular person is mentioned.
The issue has arisen again in today’s State v. Crawley (Minn. Ct. App., decided today), but in an unusual way. (See also Chaker v. Crogan (9th Cir. 2005) and People v. Stanistreet (Cal. 2002), which basically reach opposite results from each other on this issue.) A Minnesota law bans knowingly falsely reports of police misconduct. The panel majority says that, though such reports fall within an “intentional falsehood” exception to the First Amendment, the law is unconstitutional under R.A.V. v. City of St. Paul, partly because it is viewpoint discriminatory — “The provision challenged in this case punishes only those known falsehoods that are critical of police conduct,” as opposed to “knowingly making false statements to absolve an officer of wrongdoing.”
The dissenter, however, says that the exception is just an exception for “defamation” and not for “lies” generally. That is in principle a more speech-protective position. But in this case, it leads the dissenter to uphold the law, because the statements banned by the law (knowingly false claims of misconduct) are defamatory, while the statements that the majority points out are not banned (knowingly false statements that absolve an officer) are not defamatory. An interesting debate, and one that helps highlight the importance of the underlying First Amendment question that I ask in the title to this post.
Thanks to Matthew Bosworth and Scott Flaherty for the pointer.
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.