Tuesday, December 14, 2004
Volokh on the "thou shalt not lie" exception to the freedom of speech.
Remind me never to litigate against this guy.
It is indeed an oversimplification, but a necessary one (I made the change for clarity, not to change the substance): The exception is not accurately called a "defamation" or "libel" exception, as some say, since that doesn't explain cases like Time v. Hill or Madigan, the lack of protection for perjury, and so on. Saying that it's an exception for deliberate lies is not completely accurate (NYT v. Sullivan says that one class of deliberate lies, deliberate lies about the government, is categorically immune), but it's closer to accuracy than the easy alternatives. It's a tangential point, so I didn't want to get into a long disquisition about all the uncertainties about the scope of the exception (something that I've thought a lot about -- I assigned this as one of the topics in my Harvard seminar last Fall, and organized a panel on the subject at the Federalist Society conference this Fall).
In any case, for S. Ct. cases that note the lack of protection of deliberate lies (the First Amendment rules for criminalization and civil liability, as you know, are largely identical), see Time v. Hill and Madigan. For lower court cases reaching the opposite result from No on 119, see State v. Davis, 27 Ohio App. 3d 65 (1985), Briggs v. Ohio Elections Comm'n, 61 F.3d 487 (6th Cir. 1995), and Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) (the last is in a somewhat different context).
So I think there is an exception for deliberate lies, whether they are defamatory (Sullivan), place people in a false light even without injuring their reputations (Hill), get charitable contributions under false pretenses (Madigan), or (likely) constitute perjury, false statements of fact to government officials (a la 18 USC 1001), and the like. There might be an exception to this exception, for seditious libel and possibly, if No on 119 is right, for some statements in election campaigns and such. But that lies are unprotected is a close first approximation, especially in the context of my post, which dealt with civil liability, where the usual claims based on lies are libel, false light invasion of privacy, or fraud.
- Hide quoted text -
-----Original Message-----
From: arbitrary aardvark
Sent: Tue 12/14/2004 12:19 AM
To: Volokh, Eugene
Cc:
Subject: Re: blog proofreading comment
(e.g., the "false statements of fact" exception, which allows lawsuits
or even criminal punishments for deliberate lies).
You seem to have added more words while retaining the error.
No on 119! and Moses v. Louisiana show that "deliberate lies" or
"false statements of fact" cannot be punished without more.
But maybe there are statutes which criminalize deliberate lies?
Have they been upheld?
On Mon, 13 Dec 2004 20:13:26 -0800, Volokh, Eugene wrote:
> Good point, thanks!
> -----Original Message-----
> From: arbitrary aardvark [mailto:gtbear@gmail.com]
> Sent: Mon 12/13/2004 10:58 PM
> To: Volokh, Eugene
> Cc:
> Subject: blog proofreading comment
>
> "But they are permissible only because the speech on which they're
> based falls within an exception to First Amendment protection (e.g.,
> is a lie)."
>
> Now I know you know that a lie is not an exception to the first
amendment -
> you even went on to cite nyt v sullivan.
> But some of your readers might not.
> Is that what you meant?
> I tonight saw a fox news case characterized as a "right to lie" -
> didn't read the case myself.
>
> I expect you also know that alien and sedition acts contained the
same "false malicious and defamatory" standard as Sullivan.
> No response required.
There are cases where deliberate lies are not protected, but they tend to contain some additional element.
defamation,
under oath in court,
fraud, or
false light (vanishly small number of cases, at least in my state.)
i have read briggs v ohio but not recently.
i don't know these other cases, and don't have lexis.
off to look at hill and madigan.
Madigan (the lisa madigan who argued the drug dog case) was the viet vet telemarketing case, in which a unanimous court said "public deception...is unprotected speech." This was in a fraud context, but it establishes eugene's point. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. __, 123 S.Ct. 1829 (2003) (No. 01-1806)
Time, inc v. Hill (1967)http://laws.findlaw.com/us/385/374.html
Richard M. Nixon reargued the cause and filed a brief for appellee.
brennan:
But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity [385 U.S. 374, 390] in the case of alleged defamation of a public official concerning his official conduct.
OK, so the court is saying that deliberate lies are unprotected. This reminds me of a discussion in Plato's Republic, in which Socrates says fiction will be banned in the ideal republic. Yet the Republic is fiction. Plato made it up, unlike earlier works that were transcriptions of actual Socratic oral argument.
Is the court saying fiction is unprotected? Twain, a fellow alumnus of the U of Missouri School of Law, was a big fan of the art of lying. I think Eugene is right where he says that the court has said that lies are unprotected, but I think some of the time they should be.
Proper scope of the exception:
Libel, per sullivan standard.
Fraud, when the 9 elements of fraud are present.
Perjury, when statements are freely given rather than coerced.
Occasionally there is a false light or invasion of privacy case where other privately held rights trump the free speech interests.
But I believe there is a right to lie, that is part of the freedom of speech that the court should but does not recognize. A good lie is a work of art, and the constitution protects art. Now can I find that fox news case? Ah, it's project censored, which is itself a lie about the news - project censored covers stories that aren't censored, just editing decisions. Akre v Fox. Reporter fired over Monsanto BGH story dispute.
See also Al Franken, Lies and the lying liars who tell them. Saw him once as part of Franken and Davis, at the blue note in Boulder, ages ago. "How to drive drunk" was the best part of that show.
Off to court today for a routine continuance.
Remind me never to litigate against this guy.
It is indeed an oversimplification, but a necessary one (I made the change for clarity, not to change the substance): The exception is not accurately called a "defamation" or "libel" exception, as some say, since that doesn't explain cases like Time v. Hill or Madigan, the lack of protection for perjury, and so on. Saying that it's an exception for deliberate lies is not completely accurate (NYT v. Sullivan says that one class of deliberate lies, deliberate lies about the government, is categorically immune), but it's closer to accuracy than the easy alternatives. It's a tangential point, so I didn't want to get into a long disquisition about all the uncertainties about the scope of the exception (something that I've thought a lot about -- I assigned this as one of the topics in my Harvard seminar last Fall, and organized a panel on the subject at the Federalist Society conference this Fall).
In any case, for S. Ct. cases that note the lack of protection of deliberate lies (the First Amendment rules for criminalization and civil liability, as you know, are largely identical), see Time v. Hill and Madigan. For lower court cases reaching the opposite result from No on 119, see State v. Davis, 27 Ohio App. 3d 65 (1985), Briggs v. Ohio Elections Comm'n, 61 F.3d 487 (6th Cir. 1995), and Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982) (the last is in a somewhat different context).
So I think there is an exception for deliberate lies, whether they are defamatory (Sullivan), place people in a false light even without injuring their reputations (Hill), get charitable contributions under false pretenses (Madigan), or (likely) constitute perjury, false statements of fact to government officials (a la 18 USC 1001), and the like. There might be an exception to this exception, for seditious libel and possibly, if No on 119 is right, for some statements in election campaigns and such. But that lies are unprotected is a close first approximation, especially in the context of my post, which dealt with civil liability, where the usual claims based on lies are libel, false light invasion of privacy, or fraud.
- Hide quoted text -
-----Original Message-----
From: arbitrary aardvark
Sent: Tue 12/14/2004 12:19 AM
To: Volokh, Eugene
Cc:
Subject: Re: blog proofreading comment
(e.g., the "false statements of fact" exception, which allows lawsuits
or even criminal punishments for deliberate lies).
You seem to have added more words while retaining the error.
No on 119! and Moses v. Louisiana show that "deliberate lies" or
"false statements of fact" cannot be punished without more.
But maybe there are statutes which criminalize deliberate lies?
Have they been upheld?
On Mon, 13 Dec 2004 20:13:26 -0800, Volokh, Eugene
> Good point, thanks!
> -----Original Message-----
> From: arbitrary aardvark [mailto:gtbear@gmail.com]
> Sent: Mon 12/13/2004 10:58 PM
> To: Volokh, Eugene
> Cc:
> Subject: blog proofreading comment
>
> "But they are permissible only because the speech on which they're
> based falls within an exception to First Amendment protection (e.g.,
> is a lie)."
>
> Now I know you know that a lie is not an exception to the first
amendment -
> you even went on to cite nyt v sullivan.
> But some of your readers might not.
> Is that what you meant?
> I tonight saw a fox news case characterized as a "right to lie" -
> didn't read the case myself.
>
> I expect you also know that alien and sedition acts contained the
same "false malicious and defamatory" standard as Sullivan.
> No response required.
There are cases where deliberate lies are not protected, but they tend to contain some additional element.
defamation,
under oath in court,
fraud, or
false light (vanishly small number of cases, at least in my state.)
i have read briggs v ohio but not recently.
i don't know these other cases, and don't have lexis.
off to look at hill and madigan.
Madigan (the lisa madigan who argued the drug dog case) was the viet vet telemarketing case, in which a unanimous court said "public deception...is unprotected speech." This was in a fraud context, but it establishes eugene's point. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. __, 123 S.Ct. 1829 (2003) (No. 01-1806)
Time, inc v. Hill (1967)http://laws.findlaw.com/us/385/374.html
Richard M. Nixon reargued the cause and filed a brief for appellee.
brennan:
But the constitutional guarantees can tolerate sanctions against calculated falsehood without significant impairment of their essential function. We held in New York Times that calculated falsehood enjoyed no immunity [385 U.S. 374, 390] in the case of alleged defamation of a public official concerning his official conduct.
OK, so the court is saying that deliberate lies are unprotected. This reminds me of a discussion in Plato's Republic, in which Socrates says fiction will be banned in the ideal republic. Yet the Republic is fiction. Plato made it up, unlike earlier works that were transcriptions of actual Socratic oral argument.
Is the court saying fiction is unprotected? Twain, a fellow alumnus of the U of Missouri School of Law, was a big fan of the art of lying. I think Eugene is right where he says that the court has said that lies are unprotected, but I think some of the time they should be.
Proper scope of the exception:
Libel, per sullivan standard.
Fraud, when the 9 elements of fraud are present.
Perjury, when statements are freely given rather than coerced.
Occasionally there is a false light or invasion of privacy case where other privately held rights trump the free speech interests.
But I believe there is a right to lie, that is part of the freedom of speech that the court should but does not recognize. A good lie is a work of art, and the constitution protects art. Now can I find that fox news case? Ah, it's project censored, which is itself a lie about the news - project censored covers stories that aren't censored, just editing decisions. Akre v Fox. Reporter fired over Monsanto BGH story dispute.
See also Al Franken, Lies and the lying liars who tell them. Saw him once as part of Franken and Davis, at the blue note in Boulder, ages ago. "How to drive drunk" was the best part of that show.
Off to court today for a routine continuance.
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