SSRN-‘Telling Me Lies’: The Constitutionality of Regulating False Statements of Fact by Mark Tushnet
Using recent decisions dealing with the constitutionality of the Stolen Valor Act as its starting point, this Essay examines the First Amendment questions raised by statutes prohibiting lies as such, that is, outside the context of fraud and defamation. It evaluates the constitutionality of statutes imposing strict or negligence liability for lying, concluding that the First Amendment does not bar legislatures from adopting such statutes if the statutes are carefully drawn. It then assesses arguments that deliberate falsehoods can be prohibited because they have no social value, concluding that that judgment, while somewhat overbroad, is correct. In reaching that conclusion the Essay offers an interpretation of United States v. Stevens, the recently decided “animal snuff video” case, which some have thought stands as an obstacle to statutes prohibiting lies as such. The Essay also deals with false statements made by those who do not believe the statements to be false, observing that many such statements are “ideologically inflected” in ways that make is unwise, and probably unconstitutional, to regulate their dissemination. A final section briefly discusses statutes prohibiting false statements in political campaigns.