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High Value Lies, Ugly Truths, and the First Amendment

2015; Cambridge University Press; Volume: 68; Issue: 6 Linguagem: Inglês

0042-2533

Alan K. Chen, Justin F. Marceau,

Legal Systems and Judicial Processes

I. INTRODUCTIONLying has a complicated relationship with the First Amendment. It is beyond question that some lies-such as perjury and fraud-are simply not covered by the Constitution's free speech clause.1 But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection.2 Until very recently, however, it has been taken for granted in Supreme Court doctrine and academic writing that any constitutional protection for lies is purely prophylactic-it provides protection to the truth-speaker by also incidentally protecting the liar. What remains unresolved is whether other rationales might also justify First Amendment protection for lies.This Article argues that some lies-what we call high value lies-have instrumental value that advances the goals underlying freedom of speech. It develops a trifurcated doctrinal taxonomy of constitutional protection for lies. Some misrepresentations receive no protection at all;3 some false statements are protected only because the protection of the liar ensures that the speech of the truthful person is not indirectly chilled,4 and, in our view, some lies must be protected for their own sake.5 This framework is descriptively novel and doctrinally important because we provide the first comprehensive look at the wide range of lies that may raise First Amendment issues in the wake of United States v. Alvarez,6 and analyze the proper level of constitutional scrutiny applicable to regulations of each type of lie.Beyond doctrine, we advance the thesis that constitutional protection for high value lies is firmly rooted in First Amendment theory because false speech can paradoxically facilitate or produce truth. High value lies, though unacknowledged in the literature and cases to date, have played an important role in American history, and affirmatively further the three most commonly invoked theoretical goals of free speech-enhancing political discourse, revealing truth, and promoting individual autonomy.7 A prototypical category of high value lies is what we label deceptions. An investigative deception is the sort of misrepresentation necessary for an undercover journalist, investigator, or political activist to gain access to information or images of great political significance that would not be available if the person disclosed her media affiliations or political objectives. Investigative deceptions are intentional, affirmative misrepresentations or omissions about one's political or journalistic affiliations, educational backgrounds, or research, reportorial, or political motives to facilitate gaining access to truthful information on matters of substantial public concern.8We develop our claim by examining the confluence of two contemporary developments in the law of free speech-the Supreme Court's decision in Alvarez, and the emergence of new laws aimed at stifling undercover investigations or whistleblowing, particularly the so-called laws.9 Ag Gag laws provide a timely and straightforward case study of the First Amendment's role in protecting high value lies because a key component of these laws is the criminalization of misrepresentations made in order to gain access to agricultural facilities.10 Under these laws, lies used to facilitate information gathering for a news story,11 an academic book,12 or political mobilization13 are criminalized.14At least since Upton Sinclair lied to gain critical access to the meatpacking industry to gather information for his novel, The Jungle, investigators have been misrepresenting their identities and motives to expose unlawful and unethical behavior to the light of day.15 This Article is the first to consider the relationship between these high value lies and the First Amendment. In Part II, we explore the current jurisprudence and scholarship about lying under the First Amendment. Here, we trace the development of the law from earlier understandings that seemed to categorically exclude lying from First Amendment coverage, to a contemporary, post-Alvarez, binary understanding of free speech theory-some lies are protected and others are not. …