I’ve often blogged about whether there is (1) a general First Amendment exception for knowingly false statements of fact (though perhaps with some exceptions to the exception), or (2) a bunch of specific First Amendment exceptions, for fraud, defamation, perjury, highly offensive but nondefamatory factual statements about particular people (the “false light” tort), and also presumably trade libel, false statements to investigating officials, and so on. I’m inclined to view 1, though that’s a complicated question, especially in light of the Court’s endorsement in United States v. Stevens (2010) of a historical approach to First Amendment exceptions. The lower courts are split on the issue, and perhaps the Supreme Court will soon address it in deciding the constitutionality of the Stolen Valor Act (which the Ninth Circuit has held unconstitutional, and which the Tenth Circuit is now considering).
Here is the latest case I’ve seen that deals in some measure with this question, People v. Farmer (Ill. Ct. App. 2011). Do you think the law involved here is unconstitutional? Constitutional under a general “knowingly false statements of fact” exception? Constitutional under some other theory? (I focus on the legal analysis, not the specific facts of the case, because the Court was deciding whether the statute was unconstitutionally overbroad on its face.)
Section 32-5.3 of the Criminal Code of 1961 … provided [at the time of the offense]: “A person who falsely represents himself or herself to be the parent, legal guardian or other relation of a minor child to any public official, public employee, or elementary or secondary school employee or administrator commits a Class A misdemeanor.” …
Generally, a person to whom a statute may be constitutionally applied is not allowed to challenge the statute solely on the grounds that it could, in another context, be applied unconstitutionally to another person. The exception is in first amendment cases, where the concern that the constitutionally protected activity may be deterred or chilled allows a statute to be challenged as overbroad….
[T]he statute targets words about a specific subject: family relationships to minors. The statute is thus a content-based regulation of speech.
Content-based speech restrictions ordinarily are subjected to strict scrutiny. However, an exception to the ordinary rule applies to “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.” …
False statements of fact are often at the heart of the traditional categories of unprotected speech. E.g., Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 612 (2003) (“[T]he First Amendment does not shield fraud.”); United States v. Dunnigan, 507 U.S. 87, 96 (1993) (“[A] defendant’s right to testify does not include a right to commit perjury.”); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (false statements in advertising are unprotected); Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974) (libel). “The First Amendment requires that we protect some falsehood in order to protect speech that matters.” Nevertheless, the State has a compelling interest in safeguarding minors; courts have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights, including the right to free speech.
In this case, the statute criminalizes false representations that a person is the parent, legal guardian or other relation of a minor child to various public officials or employees. On one hand, family relationships are not ordinarily a matter of public interest or concern. On the other hand, as Farmer notes, many such false statements of this sort lack the element of private or public injury that accompanies traditionally unprotected categories of speech like perjury or fraud. A neighbor may pretend to be a relative believing he or she is protecting a minor child from talking to an adult stranger, who turns out to be a plainclothes policeman or school teacher. Young people may colloquially refer to their friends as “brothers” or “cousins” in situations that are entirely innocent, just as old family friends may refer to their friends’ children as nephews or nieces. Those in a charitable “Big Brother” program might innocently refer to their minor charges as “little brothers.”
The State argues that these interests can be reconciled by placing a limiting construction on the statute, requiring that the false statement be given knowingly and with the intent of deceiving the relevant public official or employee…. [W]here a statute does not specify a mental state in the first instance, the court may read a culpable mental state into the statute.
The construction the State proposes advances the State’s interest in protecting minors, while limiting the punishment of speech to cases where a person knowingly deceives a public official or employee to frustrate the operations of government in the protection of minors. Such an intent is similar to that required to prosecute obstruction of justice for knowingly furnishing false information to the police. Given that limiting construction, section 32-5.3 of the Code is not unconstitutionally overbroad.