Constitutionally Protected Lies and the Practical Difficulties with the Fact vs. Opinion Distinction
[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.]
Keeping some kinds of lies—especially those about the government, about history, and about science—unpunishable is especially valuable given the frequent difficulty of drawing the line between opinion and factual assertions, exacerbated by the human tendency to draw that line based on our own attitudes towards the merits of the speech. This difficulty has been evident throughout the history of attempts to regulate alleged “fake news.”
Consider, for instance, United States v. Cooper, one of the Sedition Act of 1798 cases. Cooper was convicted of false and malicious statements based essentially on these passages in a leaflet:
Nor were we yet … threatened [in 1797], under [President Adams’] auspices, with the existence of a standing army. Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace ….
Mr. Adams had not yet … interfered, as president of the United States, to influence the decisions of a court of justice—a stretch of authority which the monarch of Great Britain would have shrunk from—an interference without precedent, against law and against mercy. This melancholy case of Jonathan Robbins, a native citizen of America, forcibly impressed by the British, and delivered up, with the advice of Mr. Adams, to the mock trial of a British court-martial, had not yet astonished the republican citizens of this free country; a case too little known, but of which the people ought to be fully apprised, before the election, and they shall be.
Lies!, said Justice Chase to the jury (and the jury through its verdict agreed): a “scandalous and malicious libel,” containing three “false” elements: The charge related to the nation’s credit was supposedly false because the late 1790s weren’t really a “time of peace.” The condemnation of the president’s conduct in the Jonathan Robbins matter was supposedly false because the president was required by treaty to hand Robbins over. And the “standing army” statement was supposedly false because (Justice Chase reasoned) the army couldn’t be “standing” given that, in accordance with the Constitution, its expenses could only be authorized for two
Article from Reason.com