Electoral Lies and Stolen Valor: Is the Cure Worse Than The Disease?
(Lyrissa Lidsky) Does the First Amendment protect lies that cause only diffuse and intangible harms? That’s the issue at the heart of U.S. v. Alvarez, which is currently before the Supreme Court and which addresses the constitutionality of punishing those who lie about receiving military honors. (Listen to the oral arguments in Alvarez here.) It is also the issue at the heart of a petition for certiorari in 281 Care Committee v. Arneson., 638 F.3d 621 (8th Cir. 2011), which addresses the constitutionality of a Minnesota law that makes it a “gross misdemeanor” to make a knowingly or reckless false statement about a ballot issue or a candidate during an election campaign. ThoughAlvarez and Arneson are p0tentially distinguishable, the Supreme Court decision in the former will inevitably shape the answer to whether the Minnesota election law statute, and the sixteen other state statutes like it, is ultimately deemed constitutional. I’ve long been interested in this topic (see my essay, Where’s the Harm?), so it is particularly nice to come across Christina Wells’ new article (discussed below), which breathes fresh life into the debate over whether lies receive First Amendment protection.
Your stance in this debate is likely shaped by how you begin your analysis. If you start by asking whether intentional or reckless falsehoods have any constitutional value–whether they make any positive contribution to public discourse–then you are more likely to conclude that criminalizing lies is constitutional, even if they cause no harm. If you start with the presumption that government may not regulate speech without an important or perhaps even compelling justification, then you are more likely to presume that lies causing only diffuse harms are protected by the First Amendment.
First Amendment jurisprudence does not protect falsehoods as such, but it does acknowledge that falsehoods are sometimes inevitable in public debate and that it is not always easy to distinguish truth from falsity. Therefore, the First Amendment does not allow punishment of merely negligent falsehoods, and it broadly protects speech that cannot be interpreted as stating actual facts or that is not provably false. But all of the Supreme Court cases allowing the punishment of lies involved lies that caused concrete harms–lies that defamed an individual (or corporation), or invaded his privacy, or enabled fraud. In contrast, the question before the Court in the Stolen Valor case (Alvarez) is whether the First Amendment allows an individual to be punished for an intentional or reckless falsehood, doubtless offensive to most, that harms public discourse by polluting the information stream, and thereby diluting the value of military honors and muddying the message the government tries to convey by awarding them. Similarly, the question with regard to statutes regulating knowingly or recklessly made falsehoods during election campaigns is whether the harm they cause–pollution of the stream of information available to voters about candidates and issues and possible distortion of electoral outcomes–is sufficient to justify government regulation.
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