Archive | Knowingly False Statements of Fact

This is the Raphael Golb (Dead Sea Scrolls) case that has been much talked about over the last few years. Here is analysis in today’s People v. Golb (N.Y. App. Div. Jan. 29, 2013): Defendant’s convictions arise out of his use of emails to impersonate actual persons. Nothing in this prosecution, or in the court’s […]

The Wall Street Journal Law Blog reports on this question, and quoting Prof. Fred Schauer (a leading First Amendment scholar), our coblogger Stuart Benjamin, and me. The relevant statute makes it a crime to “knowing the information reported, conveyed or circulated to be false or baseless,” “circulate[] a false report or warning of an alleged […]

United States v. Alvarez, the Stolen Valor Act case, dealt with an important and recurring First Amendment question: When may the government ban lies — not just innocent mistakes, or statements that wouldn’t reasonably be understood as factual assertions (e.g., fiction, parody, or obvious hyperbole), but knowing falsehoods? That question arises in a wide range […]

In today’s United States v. Alvarez argument, the Justices at times asked: When should knowing lies be restrictable on the ground that they cause emotional distress? True statements and statements of opinion are, after all, generally protected even when they cause very serious emotional distress (see, e.g., Snyder v. Phelps). Yet, as some of the […]

From today’s United States v. Strandlof (10th Cir. Jan. 27, 2012): As the Supreme Court has observed time and again, false statements of fact do not enjoy constitutional protection, except to the extent necessary to protect more valuable speech. Under this principle, the Stolen Valor Act does not impinge on or chill protected speech, and […]

Prof. James Weinstein (Arizona State) and I filed an amicus brief last week in United States v. Alvarez, the Supreme Court’s Stolen Valor Act case. If you’re interested in the First Amendment and knowingly false statements of fact, you might want to have a look at the brief, whether in PDF form or in the […]

We begin by outlining some of the ways that the law punishes knowing falsehoods — restrictions that are generally seen by courts as not violating the First Amendment.

There are six general approaches that this Court might take to these sorts of restrictions. (For purposes of our discussion, we will set aside the question whether, under United States v. Stevens, 130 S. Ct. 1577, 1584-86 (2010), the approach must be chosen based solely on which First Amendment exceptions have been historically long recognized.

This Court could broadly state that restrictions on knowingly false statements are generally not permitted under the First Amendment, with the exception, perhaps, of the most firmly entrenched restrictions, such as those on defamation, perjury, and fraud. This approach would not only invalidate the Stolen Valor Act, but would also effectively overrule Time, Inc. v. […]

Another approach would be to hold that, though knowingly false statements of fact are generally constitutionally protected, there are many narrow exceptions to this rule: one for defamation, one for perjury, one for fraudulent solicitation of money, one for the false light tort, one for intentional infliction of emotional distress through knowing falsehoods, one for […]

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 […]