The Right to Lie
posted by Frank Pasquale
Has the Washington Supreme Court just endorsed a constitutional right to lie? In 1999, Washington passed a statute that outlawed the following:
political advertising . . . that contains a false statement of material fact [made with with knowledge of falsity or with reckless disregard as to truth or falsity] about a candidate for public office.
Eugene Volokh summarizes the majority’s take on the matter:
The plurality took the view that “only defamatory statements … are not constitutionally protected speech”; the concurrence seemed to agree, reasoning that the statute “is unconstitutionally overbroad” because it “prohibits nondefamatory speech in addition to defamatory speech.”
Volokh believes this is a major misreading of relevant Supreme Court precedent, since the Court has permitted “statutes banning fraud,” the “false light tort,” “out-of-court lies to government officials,” and “trade libel.” On the other hand, he concedes that “New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can’t punish even deliberate lies about the government (the traditional definition of “seditious libel”), so long as no particular person is mentioned.” But Volokh believes that the cases can be reconciled in favor of the Washington statute on the basis of Gertz v. Robert Welch, which held “”there is no constitutional value in false statements of fact.”
I tend to agree with Volokh here on the outcome, and the dissent seems right as a doctrinal matter. Perhaps the only compelling argument for overturning the statute is a suspicion of legal supervision of political discussion. But a real “chicken and egg” problem arises on that view: why should we accord such respect to political discussion if it can be saturated with lies?
What I find least convincing about the majority opinion is its single-minded determination to turn any governmental interest at stake here into an individualistic concern about “reputation” (rather than a democratic stake in more factually grounded political discussions). The majority scuttles the statute largely because it “has nothing to do with ‘compensating private individuals for wrongful injury to reputation.’” Would it be satisfied by some tacked-on requirement that a “reputation valuation agent” assess the degree of loss of reputation due to a lie?
As Lee Greenwood noted in a lecture entitled First Amendment Imperialism (1999 Utah L. Rev. 659), this decision is only part of a much broader trend:
[T[he First Amendment is immensely important in purely economic matters that may not seem to have anything to do with freedom of speech or religion, but are critical limitations on the scope of politics. The Speech Clause of the First Amendment now bars most forms of campaign finance reform, requires that states permit price competition in sales of pharmaceutical drugs, requires states to allow advertising of out-of-state commercial transactions that would be illegal if conducted in-state, . . . . requires allowing utilities to use rate-payers money to promote increased energy use despite a governmental policy of conservation, limits governmental regulation of guns and liquor, bars most traditional State Bar bans on lawyer advertising, requires cities to allow businesses to install advertising-flyer distribution-stands on street corners, limits libraries' evictions of people who use them as flop-houses, prevents states from restricting corporations they create from lobbying (even if the lobbying is effectively mandated by state corporate law), limits the degree to which New York City can regulate panhandling, prevents California from restricting commercial exploitation of the names of crime victims and criminals, and even prevents citizens from requiring milk companies to disclose whether they are feeding cows artificial hormone supplements. If the milk additive case is not a fluke, apparently all consumer protection acts are constitutionally suspect, and if that is so, it is hard to see why much of the civil rights acts and the entire securities regulatory scheme would not be as well.
Rebecca Tushnet explores the potential conflicts between the First Amendment and laws regulating false advertising, and also entertains the possibility that First Amendment absolutism could bring down several parts of the Lanham Act.
What explains this trend toward First Amendment absolutism? Perhaps an overworked judiciary is simply throwing up its hands and refusing to try to distinguish between facts and opinions, public and private figures, truth and falsity. . . and assumes that administrative agencies can do no better than it, even if their officers’ life’s work is the preservation of a fair informational playing field. If the Washington State Supreme Court is allowed to continue that trend into the political sphere, Greenwood’s words become ever more prophetic:
The First Amendment, in the name of preserving the underpinnings of political self-government, is replacing politics with law. Lochner, then, has returned. Once again, our Court is trying to solve the problems of our joint economic life by interpreting the principles of liberal abstention. But the rules of living together are too complicated for that: interpretation asks what the First Amendment means, while we should be asking, instead, how can we best live together in a world where some (but not all) of us want to separate libraries and flop-houses, assure that the invisible hand of the market motivates individuals to promote, not destroy, the public good, or control corporations to preclude their becoming human creations that coerce their creators needlessly and unthinkingly? The Court’s First Amendment stands in the way of this political struggle, by claiming that the difficult compromises of political life can be avoided, independently of the people concerned, as a matter of pure principle. By asking the wrong question, it assures that we cannot reach the right answer.