When Are Lies Constitutionally Protected?: Unpunishable Lies

[I’m working on a draft article called When Are Lies Constitutionally Protected?, and I thought I’d serialize it here, since I still have plenty of time to improve it; I’d love to hear your thoughts on it! (You can also read the whole article here; all the posts about it will go into this thread.) I began with a brief discussion of constitutionally unprotected lies, and turn here to constitutionally protected ones.]

But some lies, the Court told us, are indeed constitutionally protected—again, not just when they are said without “actual malice,” but even if the speaker knows the statements are false. This includes “false statements about philosophy, religion, history, the social sciences, the arts, and the like,” at least “in many contexts.” (I assume physical sciences would be covered as well.[2]) More broadly, this may include lies about any matters that are not “easily verifiable,” or where “it is perilous to permit the state to be the arbiter of truth.”

Five of the Justices in United States v. Alvarez took this view: Justices Breyer and Kagan in the concurrence and Justices Alito, Scalia, and Thomas in the dissent. And it seems likely that the four Justices in the plurality, who generally took a more speech-protective view than the concurrence or the dissent, would have agreed.

When it came to the lies prohibited by the statute involved in Alvarez itself—lies about having been awarded military decorations—the Justices, put together, appeared to apply intermediate scrutiny. The four-Justice plurality would have applied strict scrutiny, but the swing votes in the concurrence applied intermediate scrutiny, and the three dissenters would have found those lies to be categorically unprotected. But as to lies about philosophy, history, science, and the like, a majority of Justices endorsed categorical protection.

And of course in New York Times v. Sullivan the Court held that “prosecutions for libel on government”—in context, including civil liability for such libel—”have [no] place in the American system of jurisprudence.”[5] That included quite specific allegations, such as claims that the police have arrested Martin Luther King, Jr. seven times. The allegations were not a libel of Sullivan, the Court held, because they weren’t sufficiently “of and concerning him”; and they couldn’t be a libel of the city, because that would constitute an unconstitutional seditious libel claim.

The boundaries of this unprotected zone, however, are not defined, though the recent concern about “fake news” makes those boundaries quite important. Courts are sharply split, for instance, on whether the government may generally punish lies in an election campaign.[6]  One court decision has rejected claims of liability for alleged lies about vaccines,[7] but without discussing in detail whether such liability can be upheld on the theory that (to quote Alvarez) it involves “legally cognizable harm associated with a false statement”[8]—in that case, physical injury caused by a person’s believing the false statement.

Of course, the concern about “fake news” and the harms it can cause, both to society broadly and to particular people, is hardly new. Since 2020, many people have condemned false claims of election misconduct on the grounds that those claims damage democracy, and can indeed lead to insurrections.[9] But similar concerns (though not about election results in particular) date back to the debate over the Sedition Act of 1798. Justice Chase’s instructions to the jury in United States v. Cooper, for instance, defended seditious libel prosecutions on the grounds that:

If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government.[10]

Likewise, Justice Iredell in Case of Fries (1799) reasoned that the Fries Rebellion happened because “the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved.”[11] “In consequence of such misrepresentations, a civil war had nearly desolated our country, and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels.” And this showed that sedi