Hoaxes and the First Amendment

Haley v. State, decided July 8 by the Georgia Supreme Court, is the latest case dealing with the thorny problem of the First Amendment and knowingly false statements of fact. Andrew Scott Haley apparently created an online hoax:

The evidence at trial, viewed in the light most favorable to the verdict, showed that Haley, under the user name “catchmekiller,” made and posted two videos on the YouTube website. The videos were part of an online murder mystery “game” for participants who could post and review comments on the YouTube page to learn the identity of the “catchmekiller.”

Haley posted his first video on February 1, 2009. He appeared in the video, but his face and voice were distorted. Haley said that during the game he would “confess to 16 murders.” Each week there would be a new video with new clues, which would lead to the body of a missing murder victim, and “[o]nce all 16 bodies are found, you’ll know exactly who I am and I will release the video or where I can be found.” The video also made numerous references to the highly publicized nature of the underlying cases, the involvement of law enforcement agencies in investigating the cases, and the possibility that viewers of the videos might seek to identify and find who was releasing them. Thus, Haley said on his first video:

The only clues that I am giving you are clues never released by the press or by a police department. What you may find out on a lot of these people was I’m going to tell you one thing, the police and the news will release something completely different. They may have released what she was wearing or what he is wearing that day and I’ll prove different. That’s the only way I’m gonna be able to prove that this video is real because I have knowledge that the police know about, the FBI know about and you don’t. So every week a new clue, every clue leads to a new body, every new body leads to a new clue that eventually leads to me, hoping that no one else finds out who I am and why I’ve done this. Don’t try to chase me. Don’t try to catch me…. The first person to solve all murders becomes the hero…. Be prepared to answer to the police, to answer to the FBI, to answer to the News. They’re all gonna want to know how you did it …. If you decide to play the game, please go to video number two.

The video then listed the first “clues,” which related to the case of Tara Grinstead, a young Georgia schoolteacher who had disappeared in 2005. [More details of the hoax omitted; see the opinion if you want to read them. -EV]

The court’s account suggests that the statements were reasonably read as actually claiming that the poster was the killer, rather than being clearly visible to be fiction or parody. (Such fictional or parodic statements are constitutionally protected, precisely because they are not reasonably seen as making false statements of fact.) Does the knowing falsehood strip the statements of First Amendment protection?

Yes, said the court, when the defendant “contemplated that [the statements] would come to the attention of” the police. In that situation, the statements violate the Georgia false-statements-to-the-government statute, which criminalizes “knowingly and willfully … mak[ing] a false … statement … in any matter within the jurisdiction of any department or agency of state [or local] government.” And when limited to knowingly false statements that are “knowingly and willfully [made] in a matter within the jurisdiction of a state or local department or agency,” which is to say statements when the defendant “contemplated that it would come to the attention of an agency with the authority to act on it,” the statute is constitutional — even when the defendant did not “ma[k]e the false statement directly to the government agency.”

It is debatable whether a false statement, standing alone, lacks any First Amendment protection, as discussed at length by the majority and dissenting opinions in United States v. Alvarez, 617 F3d 1998 (9th Cir. 2010) [a case striking down the Stolen Valor Act -EV]. However, a knowingly and willfully false statement that is made knowingly and willfully in a matter within a government agency’s jurisdiction is a lie that threatens to deceive and thereby harm the government, if only because the government may need to expend time and resources to determine the truth. See id. at 1212-1213. Such harm would not be self-inflicted by the government, as might be said if an agency reached out to act on a false statement someone made without any expectation that it would reach the government. Instead, the State may lawfully punish such a course of potentially deceptive and injurious conduct.

Earlier the court does mention that reading the statute more broadly, to cover any knowingly false statements that might eventually come to the attention of a government agency that has jurisdiction over the behavior described in those statements — even when the speaker does not expect that this will happen — might raise serious First Amendment problems:

If all it took for a Georgia citizen to be convicted of a felony was the convergence of a lie and a government agency’s jurisdiction over the subject matter of the lie, a wide swath of communication would be criminal. And even recognizing that some types of false statements may not qualify as “speech” with First Amendment protection, see, e.g., Garrison v. Louisiana, 379 U.S. 64, 74-75 (85 SC 209, 13 LE2d 125) (1964) (holding that knowingly or recklessly false defamatory statements do not enjoy constitutional protection), the broad criminalization of false statements would have a chilling effect on protected speech that may be close to the line, including statements about public officials and public affairs that are in the heartland of First Amendment protection. As the United States Supreme Court explained…, while “there is no constitutional value in false statements of fact,” such erroneous statements are “nevertheless inevitable in free debate” and “punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press.” Accordingly, “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.”

[Reading the statute without a limitation to knowing false statements made with the contemplation that they would come to the government’s attention] would also raise significant due process concerns. Even assuming that a knowingly false statement should be viewed as a verbal “act” rather than protected “speech,” lying is commonplace, lies are often considered innocent (e.g., “white lies”), and we are aware of no federal or state laws (as opposed to moral and religious doctrines) that have deemed the making of a knowingly false statement, without more, a criminal act. If a person making a false statement need have no knowledge or intent of any kind that his deceptive statement will come to the attention of a government agency with authority to act on it, then the basic due process notion of fair notice would be in doubt. Section 16-10-20 would then criminalize a wide array of statements that have always been deemed (at least legally) innocent, and the statute would be a trap for the unwary. Likewise, if § 16-10-20 allowed prosecutors to charge any knowingly false statement that the State happened to learn of and that happened to come within the jurisdiction of some state or local agency, then the opportunities for arbitrary and discriminatory enforcement would be substantial. See Kolender v. Lawson, 461 U.S. 352, 357 (103 SC 1855, 75 LE2d 903) (1983) (“As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”).

[Footnote:] A couple of the many possible hypothetical scenarios illustrate this point. A man might return from a fishing trip to Lake Oconee, during which he caught nothing, and tell his friends a “fish story” — that he caught a “dozen big bass.” If this story unexpectedly was passed on to the Department of Natural Resources, which decided to investigate because the number of fish the man lied about catching was above the legal limit of ten largemouth bass, see Ga. Comp. R. & Regs. 391-4-3-.05 (1) (a), the man could be convicted as a felon under § 16-10-20 — even if, when DNR rangers went to ask him about the story, he immediately admitted it was a lie. Or an opponent of a powerful elected official might write angrily, and falsely, in his private journal that the official had stolen public funds, an issue that local police have jurisdiction to investigate. If the opponent lost his journal in a taxi and it was found and given to the local police, he could be targeted for criminal prosecution under § 16-10-20, even if he immediately admitted to the police that the statements were false and he had no idea that they would ever come to the attention of the government.

As I’ve noted before, I think the question of which classes of knowingly false statements of fact are constitutionally unprotected is a difficult one. My view was generally that there was a First Amendment exception for knowingly false statements of fact (and not just for particular subclasses, such as libel, fraud, perjury, false statements to government officials, statements that put another in a nondefamatory false light, and the like) with an exception to that exception for certain kinds of statement the punishment of which was especially likely to deter even true statements (such as false statements about the government generally, and false statements about science and history). I think that’s the best way of explaining the Court’s past statements on the subject; and I think that saying instead that there are lots of narrow First Amendment exceptions, one for libel, one for fraud, one for perjury and false statements to government officials, one for statements that put another in a nondefamatory false light, and so on, is likely to threaten free speech protection more broadly, since the more exceptions there are, the more arguments can be made for adding “just one more.” (I similarly think that upholding some such laws under “strict scrutiny” would pose similar problems, because it would make strict scrutiny look like a much easier test to satisfy in free speech cases.)

At the same time, I agree that this is a difficult question, and there are good arguments against my position — arguments that the Ninth Circuit accepted in the Alvarez case that the Georgia Supreme Court cited. Moreover, United States v. Stevens (2010) suggests that First Amendment exceptions should be defined based on their historical boundaries, and I haven’t done any serious research on the history of this particular exception (nor do I know of such research done by others). But, setting aside the Stevens historical inquiry, I think the Haley court was correct that knowingly false statements to government agencies, and knowingly false statements that one contemplates will come to the attention of a government agency that has jurisdiction over the matter you describe, should be seen as constitutionally unprotected. And this case, involving a knowing hoax that seemed pretty sure to waste a considerable amount of police time, strikes me as a good example of why that should be so.