Alvarez Brief, Part II.C: Recognizing Several Broad Exceptions Covering Various Kinds of Knowing Falsehoods

The danger discussed in the previous subsection could be diminished if, instead of recognizing a dozen exceptions, this Court recognizes a few exceptions that are capacious enough to fit the examples given above. Thus, for instance, this Court might recognize a general exception for “false statements about other individuals, companies, or products,” a category that includes defamation, false light, and trade libel. Likewise, this Court might recognize another exception for “deceitful statements that ‘cause the deceived person to follow some course he would not have pursued but for the deceitful conduct’” (quoting United States v. Lepowitch, 318 U.S. 702, 704 (1943)), or that attempt to cause such a result. This category would cover fraud, attempted fraud, perjury, unsworn knowing falsehoods to government agents, impersonation (the field from which the Lepowitch quote is drawn), misuse of trademarks in an attempt to deceive voters, and so on.

But a definition broad enough to include the many kinds of fraud and attempted fraud, beyond just fraudulent attempts to get money, would likely cover nearly all knowing falsehoods — including knowing falsehoods about one’s military medals. After all, the usual reason people lie is precisely to get something from listeners, and to deceive listeners in order to get them “to follow some course [they] would not have pursued but for the deceitful conduct.” The speakers might be seeking money, a job, a vote (which, when political candidates do it, is indeed an attempt to get a job), a good grade, information, business opportunities, romantic opportunities, or even just unearned respect. [Footnotes omitted. -EV] But all such attempts are a form of attempted fraud, once the requirement of trying to get money or property is relaxed.

And indeed it is not clear why, as a First Amendment matter, knowing falsehoods aimed at getting a $50 contribution should be constitutionally unprotected, but knowing falsehoods aimed at getting a vote, a high grade, a business opportunity, information, friendship, or sex should get First Amendment protection. Such line-drawing is doubtless often sensible as a matter of the substantive law of crimes or torts. But we see no basis for viewing knowing falsehoods to get sex, friendship, votes, information, or even respect and attention as more protected as a First Amendment matter than knowing falsehoods to get modest amounts of money.