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Could the Government Outlaw Lying?

Jameel Jaffer,
Director, Knight First Amendment Institute
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January 20, 2012

Could the government outlaw lying? Not just lying that causes injury — lying that defames, for example, or defrauds — but could the government outlaw lying more generally? The Justice Department appears to think so. In a case called United States v. Alvarez, the government is asking the Supreme Court to hold that that the First Amendment doesn’t protect “calculated falsehoods.” Calculated falsehoods, the Justice Department argues, are generally valueless, and Congress should be able to criminalize them if it wants to.

There’s some surface appeal to the government’s argument, because there’s no doubt that some calculated falsehoods lack obvious social value. Some of them are offensive, cowardly, distressing and even harmful to others.

But it’s worth pausing to consider the implications of the government’s argument. Many false statements serve important social interests — think of satire and parody, for example — and many others are integral to autonomy and self-fulfillment interests that the First Amendment has long been understood to protect. Investing the government with the general power to declare speech to be constitutionally valueless on the grounds of its “falsity” would give the government sweeping power to control and censor public debate. It would also permit unprecedented governmental intrusion into private conversations, including the most intimately personal ones.

As federal appeals court Judge Alex Kozinski observed in an opinion well worth reading, perfectly respectable people lie all the time in order to protect their privacy, avoid hurt feelings, make others feel better, avoid recriminations, prevent grief, maintain domestic tranquility, avoid social stigma, avoid loneliness, set up surprise parties, stall for time, keep up appearances, duck minor obligations, maintain their public image, make a point, save face, avoid embarrassment, protect themselves or others from prejudice and bigotry, or simply entertain.

Does the First Amendment permit Congress — or state legislatures, for that matter — to criminalize all of this speech?

The statute at issue in Alvarez — the Stolen Valor Act — outlaws a seemingly narrow category of lies: It imposes criminal penalties on those who falsely claim that they’ve won military honors. (Alvarez himself implausibly claimed that he’d been awarded the Medal of Honor, which is what got him indicted, but he also claimed that he’d played for the Detroit Red Wings, been married to a Mexican starlet, and rescued the American ambassador during the Iranian hostage crisis.)

But even this seemingly narrow statute sweeps rather broadly. As we write in a friend-of-the-court brief filed today:

The Act reaches oral statements as well as written ones, and private statements as well as public ones. It reaches statements that do not cause harm as well as those that do. It reaches statements made with intent to deceive, but it also reaches satire and parody. . . . It reaches the satirist, the actor, the comic, the investigator, the eccentric, and the common braggart. It reaches them whether their claims are made in a newspaper ad, a public speech, a dinner table conversation, a love letter, a blog post, or a tweet. And it reaches them even if their claim was not intended to deceive, no one relied on it, no one was harmed by it, and no one other than the government paid it any attention.

We’ve urged the Court to find the statute unconstitutional. Oral argument will be heard on Feb. 22. You can read our brief here.

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