There’s a hot controversy about the constitutionality of the Stolen Valor Act, which bans lies about one’s own military decorations. I tentatively think such lies may be punished; my view is that there is a general “knowing lies” exception to the First Amendment, albeit with some exceptions-to-the-exception in situations where punishing the lies poses an unacceptable risk of deterring true statements as well (e.g., lies about science and history, and “seditious libel,” which is to say lies about the government). Others argue the contrary, taking the view that there are instead several much narrower exceptions, for libel, fraud, false statements to government investigators, nondefamatory statements that place an identifiable person in a false light that a reasonable person would find highly offensive, and such.
I want to probe a bit further at this question, and argue that lies about one’s achievements (including one’s military decorations) are similar to attempted fraud and attempted obstruction of justice through false statements to government interests. All of these involve speech that may harm listeners by deceiving them; and attempts to do this should generally be punishable whether or not the deception involves money, and whether it interferes with government decisionmaking or with other decisionmaking. The exception is that some categories of lies should nonetheless be protected, because punishing them is especially likely to deter true statements as well. But lies about one’s own specifically identifiable accomplishments are especially unlikely to fall in that category.
Let me begin by pointing to fraud and attempted fraud. Fraudulent speech is punishable, even outside the context of normal commercial transactions that might fall within the less protected category of “commercial speech.” The Supreme Court has held that requests for charitable contributions are fully constitutionally protected, but that lies in such requests are punishable fraud. I take it that fraud is seen as constitutionally unprotected because it harms listeners by causing them to give up money based on a falsehood. The loss to each listener may be slight — likely just a few dollars — but the listener has still been wronged, and the law may punish the speaker for that.
Now let’s turn to false statements to government investigators, which are also punishable. They might be punished as perjury, if they are under oath; under 18 U.S.C. § 1001, which bars knowingly false statements to federal investigators; under obstruction of justice law, if they interfere with a criminal investigation; under statutes banning the filing of false police reports; and so on. And there too the concern is that the speech may harm listeners — the government officials — by causing them to waste time and effort (and maybe make wrong decisions) based on a falsehood.
I also take it that both fraud and false statements to investigators are punishable even if the listener quickly sees through the lie, and the lie therefore doesn’t actually cause harm to the listener. Attempted fraud and attempted obstruction of justice by lying are constitutionally unprotected. Also, such statements (whether or not initially successfully) are punishable even though listeners might often be able to avoid being defrauded or misled by being extra skeptical.
My question is: What, if anything, is the constitutional distinction between lies that might injure listeners in those ways, and lies that might injure listeners in other ways — for instance, by leading listeners to vote based on a lie, to give someone a job based on a lie, to give someone a business opportunity based on a lie, or even to make friends with someone based on a lie? Is money so constitutionally special that an attempt to get money by a lie may be punished but attempts to get other valuable (even if intangible) things may not be? Is the government is so constitutionally special (for these purposes) that lies that interfere with government decisions may be punished but lies that interfere with people’s voting decisions, business decisions, or social decisions may not be?
I recognize that there might be good policy reasons for treating some lies as punishable and others as not punishable. But my question here is whether the First Amendment should be read as mandating such distinctions. (Note that I focus on knowing lies, which is to say knowingly false statements that are intended to be believed; I set aside honest mistakes, fiction, parody, and the like.) In particular, let me ask you folks what you think about these laws, as a matter of First Amendment law and not jut of sound criminal justice policy:
- Laws that ban attempting to get money (including charitable contributions) through knowingly false statements about yourself.
- Laws that ban attempting to get a job — which would involve the payment of money by the employer to you — through knowingly false statements about yourself. (Some states, for instance, specifically ban the use of false academic degrees to try to get a job.)
- Laws that ban attempting to get elected to a government office — which would involve the payment of money by the taxpayers to you — through knowingly false statements about yourself.
- Laws that ban attempting to interfere with police decisionmaking by telling the police knowingly false statements about yourself.
- Laws that ban attempting to interfere with voter decisionmaking by telling voters knowingly false statements about yourself (even when you are, for instance, an endorses of the candidate and not the candidate yourself, so you’re not trying to get money for yourself).
- Laws that ban attempting to interfere with people’s decisionmaking about their sex lives by telling prospective sexual partners knowingly false statements about yourself.
- Laws that generally ban making false claims about your military medals, on the theory that most such claims are attempts to interfere with listeners’ decisionmaking about something, whether money, sex, respect, affection, and so on.
Should all of these laws be constitutional? Should none of them be constitutional? If some should be constitutional and others shouldn’t be, where would you draw the line and why?
(Note that I limit the items in this list to knowing lies about yourself. I recognize that as we get to alleged knowing lies about other matters, the risk of error becomes higher, as does the danger that banning lies will deter true statements as well.)