Should lies be protected as free speech?

[superrific]

Here's how our laws currently establish the legal status of falsehoods:

1. falsehoods are not protected speech.
2. But, they enjoy the protections of free speech because we wouldn't want a crackdown on falsehoods to chill acceptable and valuable speech.
3. Those protections allow people to lie about public figures with virtual impunity, unless it can be shown that they acted with "actual malice." That is a difficult showing to make and because it comes up in the defamation context -- where damages can be hard to prove, except in fairly extreme cases -- people just don't have the incentive to follow through. Thus has defamation law become a tool for the powerful to punch down on targeted victims. It's not only a tool for that (thank you Ruby Freeman!) but it's way more of an offensive weapon for wealth than it should be.
4. Criminal sanctions against defamation are not prohibited (yet, as far as I know), but are disfavored.
5. Outside of defamation, lying in public discourse is fine unless it is fraud.

This is not how free speech works in many other countries. In many places, the mere uttering of falsehoods -- or certain types of falsehoods, at least -- can carry criminal penalties. For instance, Holocaust denial is criminal in many European countries and, I think, Canada.

The question is whether we should think more about criminal sanctions or civil penalties for lies. That's not the same as criminalizing falsehoods; a lie is intentional and isn't subject to a slippery slope where mere mistakes can lead to ruinous liability. And of course, we would only want to criminalize the lies insofar as they are a part of public discourse. If I lie to the cashier at the grocery store, who cares? It's not a matter of state concern. But when a presidential campaign is built almost entirely on lies, and knowingly built on lies, that definitely is a matter of public concern.

I don't know. I just refuse to accept that there is nothing in principle we can do when a presidential candidate talks endlessly about black people eating pets, and continues to repeat that even well after he has been corrected. When a guy like Musk can take to twitter and unleash a firehose of lies.

What the "marketplace of ideas" advocates of the 20th century didn't understand -- probably because it wasn't visible in an age before social media -- is the problem that a lie can travel all around the world several times before anyone has time to refute it, and that the refutation rarely defeats the lie because of the asymmetries involved. The only way to combat untruth is to hit it at the source.

what do people think?

 

[Bobfripp]

Isn't freedom of speech as defined in the Constitution, only guaranteed in regards to government not infringing on that right? In other words, private institutions like the former Twitter, and other social media platforms, are, in fact, allowed to ban any speech on their platforms. It seems Musk bought Twitter to allow anyone to freely lie, even about issues that are critical to the state.

 

[superrific]

Isn't freedom of speech as defined in the Constitution, only guaranteed in regards to government not infringing on that right? In other words, private institutions like the former Twitter, and other social media platforms, are, in fact, allowed to ban any speech on their platforms. It seems Musk bought Twitter to allow anyone to freely lie, even about issues that are critical to the state.

Yes. I'm talking about government curtailment of speech, not whether twitter can ban people.

 

[Bobfripp]

One problem is that government officials who lie simply claim that their lies aren't lies, but are 'alternative facts.' That's the Trump playbook. The only recourse I can see is just don't vote for the liar, but apparently half the voters are just dandy with being lied to - or they too see these lies as alternative facts.

 

[Centerpiece]

“Should lies be protected as free speech?”​

No. Not when it harms others. Libel. Slander.
Yelling fire - when there is none - in a crowded theater is a “lie” and not protected under free speech laws… correct?
So, no. Telling lies should not be protected, free speech.

 

[superrific]

No. Not when it harms others. Libel. Slander.
Yelling fire - when there is none - in a crowded theater is a “lie” and not protected under free speech laws… correct?
So, no. Telling lies should not be protected, free speech.

1. The "fire in the crowded theater" thing is the most commonly cited example of limitations on free speech. It's the paradigmatic response that always gets cited -- not just in discussions like these, but up and down the judiciary and law professoriate. It's ironic, because I don't think there was ever a significant case resembling it. It was a hypothetical raised, I think, by Holmes as a justification for imprisoning someone, maybe Debs or Schenck. Can't remember. I used to think it was anomalous (though innocuous). Now it seems par for the course.

2. That example is famous because it's correct and intuitively obvious. OF COURSE free speech can't extend that far. The constitution is neither a suicide pact nor an anarchist document.

But the issue in the crowded theater hypo isn't exactly falseness. If there's a fire in a trash can in the theater that is being managed, and someone runs into the main chamber and yells, "there's a fire in the lobby," the same harm would follow. The social ill is the needless panic that is caused by the yelling of fire, not specifically the falseness of it. In fact, I'm pretty sure Congress could pass a law saying that nobody can shout fire in a crowded theater for any reason, including the presence of an actual fire. Let the fire alarms or the management handle it. It might not be an intelligent law, but I think it would pass 1A muster.

3. I'm now thinking that maybe this hypothetical can make for a great thought experiment. Per my argument and yours (implicitly), we have lost something when we focus entirely on the effect of the speech and ignore its truth value. We are afraid of stampedes of people fleeing a theater; the law is not afraid of stampedes of people engaging in stochastic terrorism as a direct result of lies.

So new hypos:

A. Should shouting fire in the crowded theater be punishable regardless of whether the fire is real or not?
B. Should shouting falsehoods in the theater be illegal specifically because they are lies? For instance, suppose someone doesn't shout fire but rather shouts that there's an outbreak of COVID-24, which everyone in the theater knows to be false. Now, I would tend to be against that sort of law on a no harm, no foul type of principle, but the wisdom of the particular law isn't the same thing as the wisdom of the principle allowing or preventing it. Note that people can be convicted of counterfeiting currency that doesn't exist (I believe someone went to jail for a long time after trying to pass a $16 bill).
C. Should our definition of incitement change? Right now, if Trump says "we need to get illegals out of the country by any means possible" and a MAGA predictably kidnaps a Mexican person in a DIY deportation effort, he is protected from charges or liability by the Brandenburg standard. Maybe in an age of stochastic terrorism, it should actually be illegal to say something to the effect of "will nobody rid me of this turbulent priest"?
D. Should the recitation of lies that are intended to provoke that sort of effect be actionable even if the person doesn't exhort anyone to do anything directly.

 

[SnoopRob]

The "Marketplace of Ideas" concept is a terrible idea that has few redeeming qualities, the only important one is that it is better than any of the other options.

Let's say that we tried to put into place some sort of government-based model to prevent lies within the public life of the country. There is no way that it would have worked over time because the Republican Party would not have allowed it to work.

Even if it functioned well at some point, by the Reagan Administration it would have been under fire. Reagan and the Pubs would have attacked it as a fundamental assault on free speech and sought to dismantle it as much as possible. And whatever remained would have been further torn apart under Dubya to the point of near irrelevancy. And whatever remains now would be weaponized under Trump to be used against his political enemies.

And this entire time, any use by Dems would be the subject of widespread complaining by Pubs and that it was "an overactive government impugning the free speech rights of "real Americans".

The problem isn't that we don't have sufficient mechanisms to promote truth and facts, it's that we have a large portion of the country who don't care about truth/facts and rather hear/share lies/falsehoods that support what they believe. And given that the entire Republican Party knows that promoting such lies/falsehoods via any and all avenues is foundational to their success, there is no way that nearly any checks on their ability to spread falsehoods would be allowed to flourish.

 

[ZenMode]

“Should lies be protected as free speech?”​

No. Not when it harms others. Libel. Slander.
Yelling fire - when there is none - in a crowded theater is a “lie” and not protected under free speech laws… correct?
So, no. Telling lies should not be protected, free speech.

I think all speech is assumed to be Constitutionally protected until it is deemed to not be protected by the Supreme Court. As you mentioned, things like slander, libel, defamation.....

I could start a website tomorrow dedicated to nothing but lies and, as long as it didn't legally harm anyone, it would be protected. I could claim the Earth is flat, the 2020 election was stolen, there's an epidemic of pet-eating Haitians in Springfield.

I don't want the United States to turn into a Western European country where you can be fined or jailed for simply saying things that are divisive, even though you aren't calling for violence.

 

[gtyellowjacket]

“Should lies be protected as free speech?”​

No. Not when it harms others. Libel. Slander.
Yelling fire - when there is none - in a crowded theater is a “lie” and not protected under free speech laws… correct?
So, no. Telling lies should not be protected, free speech.

As you pointed out, we already have mechanisms to address certain lies. I don't think we need to create new mechanisms to shut down platforms that spread the lies.

Who gets to say what is a lie? Do we choose that by voting or appointment by someone who was selected by voting? I can't see a different way to do it and most people aren't going to be happy about half the time. How many lies get a platform shut down? 10% of posts? 30%? One if someone with enough power disagrees with it?

I just don't like politicians choosing which speech should be punished. Its unworkable to do it right and prone to political shenanigans if its done wrong.

 

[ZenMode]

The "Marketplace of Ideas" concept is a terrible idea that has few redeeming qualities, the only important one is that it is better than any of the other options.

Let's say that we tried to put into place some sort of government-based model to prevent lies within the public life of the country. There is no way that it would have worked over time because the Republican Party would not have allowed it to work.

Even if it functioned well at some point, by the Reagan Administration it would have been under fire. Reagan and the Pubs would have attacked it as a fundamental assault on free speech and sought to dismantle it as much as possible. And whatever remained would have been further torn apart under Dubya to the point of near irrelevancy. And whatever remains now would be weaponized under Trump to be used against his political enemies.

And this entire time, any use by Dems would be the subject of widespread complaining by Pubs and that it was "an overactive government impugning the free speech rights of "real Americans".

The problem isn't that we don't have sufficient mechanisms to promote truth and facts, it's that we have a large portion of the country who don't care about truth/facts and rather hear/share lies/falsehoods that support what they believe. And given that the entire Republican Party knows that promoting such lies/falsehoods via any and all avenues is foundational to their success, there is no way that nearly any checks on their ability to spread falsehoods would be allowed to flourish.

The government-run Department of Truth was tried and failed before it got off the ground. I think that's a good thing. I'd rather people learn the hard way about which are legitimate sources of news and which aren't vs giving the federal government a platform for determining "truth". That is a terrifying prospect in my opinion.

Way too Orwellian for me.

 

[superrific]

The "Marketplace of Ideas" concept is a terrible idea that has few redeeming qualities, the only important one is that it is better than any of the other options.

Let's say that we tried to put into place some sort of government-based model to prevent lies within the public life of the country. There is no way that it would have worked over time because the Republican Party would not have allowed it to work.

Even if it functioned well at some point, by the Reagan Administration it would have been under fire. Reagan and the Pubs would have attacked it as a fundamental assault on free speech and sought to dismantle it as much as possible. And whatever remained would have been further torn apart under Dubya to the point of near irrelevancy. And whatever remains now would be weaponized under Trump to be used against his political enemies.

And this entire time, any use by Dems would be the subject of widespread complaining by Pubs and that it was "an overactive government impugning the free speech rights of "real Americans".

The problem isn't that we don't have sufficient mechanisms to promote truth and facts, it's that we have a large portion of the country who don't care about truth/facts and rather hear/share lies/falsehoods that support what they believe. And given that the entire Republican Party knows that promoting such lies/falsehoods via any and all avenues is foundational to their success, there is no way that nearly any checks on their ability to spread falsehoods would be allowed to flourish.

Chicken and the egg, though. The Republicans got so addicted to lying because they paid no price for it. You're right -- there's a large number of people who don't care about truth. That would typically be considered a reason to regulate, not a reason not to. That's why we have consumer protections instead of just relying on the marketplace to deter bad actors. It's why we have zoning. It's why we have class actions. It's why we have criminal penalties for corporate insiders who say false things to investors.

And why are Americans unable to manage what other countries have done? What if we start with a criminal law against Holocaust denial. That has proven workable in virtually every country that has tried it, to the best of my knowledge.

 

[superrific]

I could start a website tomorrow dedicated to nothing but lies and, as long as it didn't legally harm anyone, it would be protected. I could claim the Earth is flat, the 2020 election was stolen, there's an epidemic of pet-eating Haitians in Springfield.

Not surprising that a serial liar wants lies to be protected.

 

[lawtig02]

The government-run Department of Truth was tried and failed before it got off the ground. I think that's a good thing. I'd rather people learn the hard way about which are legitimate sources of news and which aren't vs giving the federal government a platform for determining "truth". That is a terrifying prospect in my opinion.

There was never a “Department of Truth.” That was, ironically enough, a lie promulgated by right wing disinformation sources.

 

[ZenMode]

There was never a “Department of Truth.” That was, ironically enough, a lie promulgated by right wing disinformation sources.

No, according to the "right wing disinformation site" The Hill it was called Ministry of Truth, I just couldn't remember the exact name at that moment.

Ministry of Truth sounds even MORE Orwellian.

 

[lawtig02]

No, it was called Ministry of Truth, I just couldn't remember the exact name at that moment.

Ministry of Truth sounds even MORE Orwellian!

No it wasn’t. Please stop posting lies like that.

 

[ZenMode]

No it wasn’t. Please stop posting lies like that.

What part of the government was Nina Jankowicz hired to run?

Sorry, it was under a different name; same idea:

Nina Jankowicz
Former Executive Director of the Disinformation Governance Board of the United States

 

[superrific]

As you pointed out, we already have mechanisms to address certain lies. I don't think we need to create new mechanisms to shut down platforms that spread the lies.

Who gets to say what is a lie? Do we choose that by voting or appointment by someone who was selected by voting? I can't see a different way to do it and most people aren't going to be happy about half the time. How many lies get a platform shut down? 10% of posts? 30%? One if someone with enough power disagrees with it?

1. The mechanisms we have to address lies are obviously not working. As I mentioned, defamation is a joke.
2. "Who gets to say what is a lie" is a valid concern, but there are a few rejoinders. First, that problem already exists everywhere. In a fraud prosecution, the government has to prove that the defendant made false statements. That has not proven to be an intractable problem.

Second, we can address that concern with a buffer (using the term metaphorically). We could say that the falseness has to be established by clear and convincing evidence. And of course, intent matters. If the government can show intent to spread falsehoods (which would be required under any sensible system), it shouldn't be that hard to infer that the defendant's words were in fact false.

Third, isn't it an indictment of our current approach and the state of our society that "who gets to say what is a lie" is such a common response? This concern is almost pathological in itself. It shouldn't be hard to establish a lie, no matter who is saying it. Again, it depends on the nature of the lie. But most falsehoods that are close to the line of truth aren't necessary spread with conscious knowledge of its falseness, so they wouldn't be impacted.

To use an example: should it be illegal in some fashion for a registered nurse to claim on TV (let alone a congressional hearing) that the COVID vaccines makes a person magnetized? Are we really going to bat for that, even with awareness of the slippery slope problem? Should there really be no consequence at all? Shouldn't she at least lose her professional qualifications?

3. It's true that any system of punishing lies would likely require other changes to our political and judicial systems. For one thing, we need different judges. But again, there's a chicken-and-egg problem. We might get a better system and better judges if it was much harder to lie your way into power.

 

[superrific]

No, according to the "right wing disinformation site" The Hill it was called Ministry of Truth, I just couldn't remember the exact name at that moment.

Ministry of Truth sounds even MORE Orwellian.

The exact name, according to the link you provided, was "disinformation governance board" Not responding to this bullshit any more. I'll just say that you're providing terrific evidence as to why our system requires changing. You just took a person's pejorative characterization of something, accepted it as truth, and republished it as a straight-up lie. Why should we allow that if it were to lead to terrible consequences?

 

[ZenMode]

Not surprising that a serial liar wants lies to be protected.

You, beacon of truth that you are, I'm sure will be honestly answering this simple question at any moment.

 

[superrific]

You, beacon of truth that you are, I'm sure will be honestly answering this simple question at any moment.

I already replied to that question. You merely restated it again. I'm not going to engage again, because I do try to be a beacon of truth and not a firehose of untruth. I'm also not letting this thread be derailed by your bullshit. If you want to bitch about fictitious ministries of truth, start a thread.