The better solution, we believe, is to treat knowing falsehoods as categorically constituting a First Amendment exception, with some limitations we note below. Such a rule would reflect this Court’s repeated judgment that “there is no constitutional value in false statements of fact.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974); Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003) (relying in part on Gertz’s holding that “the ‘intentional lie’ is ‘no essential part of any exposition of ideas’” in concluding that fraud is constitutionally unprotected); see also, e.g., Herbert v. Lando, 441 U.S. 153, 172 (1979) (quoting Gertz); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (“Untruthful speech, commercial or otherwise, has never been protected for its own sake.”) (citing Gertz); Garrison v. Louisiana, 379 U.S. 64, 75 (1964) (“Calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality * * *.’”) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).
Such a rule would keep the list of exceptions manageably small, and thus less likely to grow. And by reserving strict scrutiny for content-based restrictions on true statements, statements of opinion, and other constitutionally valuable expression, such a rule would allow strict scrutiny in free speech cases to remain the very demanding, almost never satisfied test that it is today.
To be sure, as this Court’s libel cases have recognized, some restrictions on falsehoods also tend to unduly deter true statements. “[P]unishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press.” Gertz, 418 U.S. at 340. Because of this, reasonable mistakes and even negligent falsehoods should generally remain constitutionally protected, except in special cases, such as when compensatory damages for negligent errors are sought by private-figure libel plaintiffs, as in Gertz.
Furthermore, even some restrictions on knowing falsehoods involve an unusually high risk of factfinder error, factfinder bias, prosecutorial bias, legislator bias, or interference with scientific or historical investigation. For instance, New York Times Co. v. Sullivan held that false statements about a government agency (as opposed to a particular government official) may not be punished, period. “For good reason, ‘no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence.’” New York Times Co. v. Sullivan, 376 U.S. at 291 (quoting City of Chicago v. Tribune Co., 139 N.E. 86, 88 (Ill. 1923)); see also Rosenblatt v. Baer, 383 U.S. 75, 83 (1966) (following New York Times Co. v. Sullivan on this point).
Likewise, the First Amendment should limit prosecutions for alleged lies about history or science (at least outside commercial advertising, and absent defamation of a specific living person). The truth about such matters is especially likely to be uncertain, and outside the speaker’s personal knowledge. Resolving what is true may be an especially politicized endeavor, with judges, prosecutors, and jurors of different ideological persuasions reaching different conclusions about science, history, or complex current events. The chilling effect of possible liability would thus be especially great in many such cases.
Moreover, “[e]ven a false statement may be deemed to make a valuable contribution to public debate, since it brings about ‘the clearer perception and livelier impression of truth, produced by its collision with error.’” New York Times Co. v. Sullivan, 376 U.S. at 279 n.20 (quoting John Stuart Mill, On Liberty 15 (1947)). What is our main assurance that conventional wisdom among historians or scientists is likely to be correct, even when we ourselves lack the expertise to personally evaluate the question? Precisely the fact that scholars have reached and maintained a consensus on the conventional wisdom, in the face of others’ unfettered freedom to challenge and try to rebut that consensus.
But say that factual criticism of a historical or scientific theory were banned, even using a ban limited only to criticism that a jury finds to be false and insincere. Confidence in the consensus view would then be less justified. First, we could not know whether the continued consensus stems from scholars’ not being exposed to outsider challenges, rather than from its continued scholarly acceptance despite the challenges. Second, we could not know whether the continued consensus is more apparent than real, because scholars who do find themselves having doubts are deterred from expressing them.
Thus, a case like State v. Haffer, 162 P. 45 (Wash. 1916), in which defendant was found guilty of libeling George Washington — Washington state law then allowed prosecutions for defaming the dead — would almost certainly come out differently today. To give another example, prosecutions for Holocaust denial should be similarly forbidden by the First Amendment, even if a factfinder could be persuaded that the deniers are knowing liars and not just reprehensible fools. Likewise, Schaefer v. United States, 251 U.S. 466 (1920), in which speakers were convicted for “willfully * * * [publishing] false reports” during World War I, should also come out in favor of First Amendment protection today. See id. at 494 (Brandeis, J., dissenting) (concluding that allowing such prosecutions “subjects to new perils the constitutional liberty of the press,” and “will doubtless discourage criticism of the policies of the government”).
But while this means that the boundaries of the false statements of fact exception will be in some ways complex, such complexity cannot be avoided by choosing the many-exceptions or several-exceptions models described in Parts II.B and II.C. For instance, even a narrow exception for fraudulent attempts to get money could in principle end up being potentially applicable to statements about the government, science, or history: A candidate running for office could be prosecuted for making false claims about the government, on the theory that he was lying to his prospective employers (the people) in order to get money (the salary that he would get as an officeholder). The lower courts are currently split on whether general prohibitions on knowing falsehoods in election campaigns are constitutional. [Footnote: For cases stating that such prohibitions are constitutional, see State v. Davis, 499 N.E.2d 1255, 1259 (Ohio Ct. 1985); Pestrak v. Ohio Elections Comm’n, 926 F.2d 573 (6th Cir. 1991); Snortland v. Crawford, 306 N.W.2d 614, 623 (N.D. 1981) (dictum); Commonwealth v. Wadszinski, 422 A.2d 124, 129-30 (Pa. 1980) (dictum); Vanasco v. Schwartz, 401 F. Supp. 87, 91-93 (S.D.N.Y. 1975) (3-judge court) (dictum). For cases so stating as to judicial elections, see North Carolina State Bar v. Hunter, 2010 WL 2163362, *10 (N.C. Ct. App. June 1); In re Chmura, 608 N.W.2d 31, 40 (Mich. 2000); Mahan v. State of Nevada Judicial Ethics & Election Practices Comm’n, 2000 WL 33937547, *4 (D. Nev. Mar. 23); Weaver v. Bonner, 309 F.2d 1312, 1319 (11th Cir. 2002) (dictum). Under Republican Party v. White, 536 U.S. 765 (2002), restrictions on the speech of candidates of judicial office are subject to the same First Amendment scrutiny as restrictions on the speech of candidates for other offices.
For cases holding that restrictions on knowing falsehoods in political campaigns are or might be generally unconstitutional, see State ex rel. Public Disclosure Comm’n v. 119 Vote No! Comm., 957 P.2d 691 (Wash. 1998) (striking down a law imposing civil liability for knowingly false statements in election campaigns); 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011) (holding that a law criminalizing knowingly false statements in election campaigns had to be reviewed to determine whether it passes strict scrutiny, and remanding for such review). For a case in which the judges split 3-3 on the question, compare In re Gableman, 784 N.W.2d 605, 618, 624 (Wis. 2010) (Abrahamson, C.J.), with In re Gableman, 784 N.W.2d 631, 644-45 (Wis. 2010) (Prosser, J.).]
Likewise, a book author might be sued or prosecuted for fraud on the theory that he was making money through knowingly false allegations about the government, or knowingly false claims about history. The majority in In re Grand Jury Matter, Gronowicz, 764 F.2d 983 (3d Cir. 1985) (en banc), held that it was indeed constitutional to prosecute an author for allegedly defrauding a publisher and a movie producer based on the author’s alleged misrepresentations about his contacts with Pope John Paul II, misrepresentations that appeared in the book itself. But three judges disagreed with the majority on this. See id. at 993 (Hunter, J., dissenting) (concluding that such fraud prosecutions were unconstitutional); id. at 1001 (Sloviter, J., dissenting) (concluding that such fraud prosecutions were unconstitutional, though civil liability would be constitutional); and id. at 997-98 (Leon Higginbotham, J., dissenting) (agreeing with Judges Hunter and Sloviter as a matter of First Amendment first principles, but concluding that the then-existing First Amendment precedents did allow punishment of such fraud).
Presumably in such cases courts would have to be careful to prevent undue restrictions on First Amendment rights, whether the relevant exception is a general exception for knowing falsehoods or a specific exception for fraudulent attempts to get money. Whether courts conclude that an “actual malice” mens rea requirement suffices to avoid undue deterrence of speech in such cases (the view taken by the Gronowicz majority), or that there should be categorical protection even for some alleged knowing falsehoods (the view taken by the Gronowicz dissenters), that difficult inquiry would have to take place regardless of which broad approach this Court takes to crafting the First Amendment exceptions.
Finally, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), would provide some extra protection against improper speech restrictions even if a general exception for knowing falsehoods is recognized. “[C]ontent discrimination” even within a class of “proscribable speech” is presumptively unconstitutional, id. at 387, because it may “impose special prohibitions on those speakers who express views on disfavored subjects,” id. at 391. Thus, for instance, a law specifically punishing knowingly false statements about the war in Afghanistan might well be unconstitutional, because it might be an attempt to specially burden one side of the debate, and make criticisms of the war more dangerous. Likewise, a law banning Holocaust denial would likely violate the R.A.V. principle.
We recognize that our proposed approach means that, in principle, the government could criminalize a wide range of lies, including on comparatively minor matters, such as lying about one’s age on a dating service or lying to a spouse about how much one lost at poker. See United States v. Alvarez, 638 F.3d 666, 673-75 (9th Cir. 2011) (Kozinski, C.J., concurring in the denial of rehearing en banc). And we agree that many such lies should not be criminalized.
But the very fact that such lies are generally not illegal shows that the political process can generally be trusted to prevent the imposition of criminal liability for casual social lies. Indeed, the very fact that many such social lies are common, id. at 674-75, is a powerful political check on the growth of the criminal law in this area.
Yet when lawmakers think that a particular kind of lie is harmful enough, they should generally be free to prohibit it. Thus, for example, if legislators conclude that adults should not be allowed to falsely claim to be children in order to build an online relationship with a real child, the legislature would be free to criminalize such speech. See United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009) (describing the Lori Drew/Megan Meier case, in which the 13-year-old Megan Meier committed suicide after having been psychologically manipulated by Lori Drew, an adult woman who won Meier’s trust and affection by pretending to be a 16-year-old boy in her communication with Meier).
Under the approach we propose in this subsection, the Stolen Valor Act would be constitutional, precisely because it is highly unlikely to unduly chill true statements or statements of opinion. Whether we have received military decorations is easy for us to be sure about, and generally much easier than it is for us to be sure about whether some other person has done something (the issue in most defamation cases). Cf. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 n.25 (1976) (concluding that false statements in commercial advertising should be more easily punishable than other false statements because “[t]he truth of commercial speech * * * may be more easily verifiable by its disseminator than, let us say, news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else”).
The truth of such claims is also unusually easy for the jury to determine with precision, so jurors’ ideological sentiments are relatively unlikely to influence their factual judgment, compared even to jury decisions made when implementing permissible speech restrictions, such as libel law. Protecting false statements about such matters is not necessary for protecting the soundness of historical or scientific debate. And though the Stolen Valor Act does treat false statements about one’s military decorations differently from other false statements, it appears to fit within one of the exceptions to the R.A.V. principle: “[T]he nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.” 505 U.S. at 390. False claims of military honors are not limited to any particular viewpoints, or even particular topics of debate. They can equally be made by people who are anti-war, who are pro-war, or who are just trying to stay in an office that is unrelated to the military or to have more influence in such an office.