Lies About Science, Government, Etc. in Specific Libel or Fraud Lawsuits
[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.)]
We see, then, that courts are generally allowed to determine whether a statement about an individual is true, or whether a statement said to government officials is true, or whether a statement aimed at getting money is true. They are generally not allowed to determine whether a statement about the government, or about history or science, is true (at least in the context of punishing speech, as opposed to litigating nonspeech claims). What happens, though, at the intersection of those two categories?
Say, for instance, that someone testifies before a grand jury—or even just tells government investigators—”I saw a police officer beat John Smith,” even without any reference to a specific police officer. If a prosecutor believes that the witness knowingly lied, could such a statement lead to a perjury or false statement prosecution? Or say that someone makes the same claim in a fundraising letter (“Give money to the Anti-Police-Brutality Foundation, so we can deal with abuse such as the police beating of John Smith”). If a prosecutor or a consumer protection agency claims that the author knowingly lied, could such a statement lead to a fraud prosecution?
Or let’s take an example of a speech that is not within an existing First Amendment exception, but that would likely be restrictable under intermediate scrutiny, the test adopted by the controlling Alvarez concurrence: Someone files an unsworn complaint with the police department, claiming the police beat him. If the prosecutor believes this is a knowing lie, could this lead to a prosecution for filing a false police report? (Three Justices of the Minnesota Supreme Court recently suggested the answer is “no.”)
The same questions arise not just with statements alleging government misconduct, but also with statements about “history, the social sciences, the arts, and other matters of public concern.” The government may not ban newspaper articles about whether or not human activity is warming the Earth, or about whether there are biological differences between the sexes’ or races’ cognitive faculties. But say that a scientist testifies in court that his study showed that t
Article from Reason.com