I’ve blogged about this important but unresolved question before, and it has arisen as well with regard to the Stolen Valor Act. The Supreme Court’s recent United States v. Stevens decision may bear on this as well, to the extent that it suggests that the categorical exceptions are limited to those that have been historically recognized — there needs to be some historical research on the question. (For my pre-Stevens analysis of the issue, see this amicus brief that I filed on my own behalf in a Stolen Valor Act case.)
So far, the Supreme Court has expressly upheld restrictions on knowing (or reckless or, in some instances, negligent) defamation; statutes banning fraud, including fraudulent solicitation of charitable donations (though nonfraudulent solicitation of charitable donations is generally treated as fully protected speech); and the false light tort, which compensates people for the emotional injury of having false or misleading statements said about them that “would be highly offensive to a reasonable person,” even when the statements don’t damage the subject’s reputation. It has also suggested, in Brown v. Hartlage, that knowingly or recklessly false statements in election campaigns are generally punishable, but it didn’t squarely hold this, and lower courts are split on the subject. Lower courts have uncontroversially upheld criminal punishment of perjury and out-of-court lies to government officials (for instance, under 18 U.S.C. § 1001). They have also generally upheld trade libel law, which imposes liability for (at least) lies about people’s and corporations’ products, not just about the people themselves. Only in one situation has the Court strongly suggested that even some recklessly or knowingly false statements are constitutionally protected: New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can’t punish even deliberate lies about the government (the traditional definition of “seditious libel”), so long as no particular person is mentioned.
The issue has arisen again in today’s State v. Crawley (Minn. Ct. App., decided today), but in an unusual way. (See also Chaker v. Crogan (9th Cir. 2005) and People v. Stanistreet (Cal. 2002), which basically reach opposite results from each other on this issue.) A Minnesota law bans knowingly falsely reports of police misconduct. The panel majority says that, though such reports fall within an “intentional falsehood” exception to the First Amendment, the law is unconstitutional under R.A.V. v. City of St. Paul, partly because it is viewpoint discriminatory — “The provision challenged in this case punishes only those known falsehoods that are critical of police conduct,” as opposed to “knowingly making false statements to absolve an officer of wrongdoing.”
The dissenter, however, says that the exception is just an exception for “defamation” and not for “lies” generally. That is in principle a more speech-protective position. But in this case, it leads the dissenter to uphold the law, because the statements banned by the law (knowingly false claims of misconduct) are defamatory, while the statements that the majority points out are not banned (knowingly false statements that absolve an officer) are not defamatory. An interesting debate, and one that helps highlight the importance of the underlying First Amendment question that I ask in the title to this post.
Thanks to Matthew Bosworth and Scott Flaherty for the pointer.