Lying and Freedom of Speech

Abstract

800x600 Normal 0 false false false EN-US X-NONE X-NONE /* Style Definitions */ table.MsoNormalTable {mso-style-name:Table Normal; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:; mso-padding-alt:0in 5.4pt 0in 5.4pt; mso-para-margin:0in; mso-para-margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:10.0pt; font-family:Calibri,sans-serif; mso-bidi-font-family:Arial;} The falsity of the claim that lies are inherently without direct and substantial free speech value is the main thesis of this Article. Lies may contribute directly and substantially to the basic values or purposes underlying freedom of speech in general. These include, but are not limited to, autonomy, personal development, truth, privacy, tolerance, respect, dignity, and equality. Some lies may promote free speech values in such a way as to deserve free speech protection. And this is quite apart from any breathing space that protecting some false statement-if not some lies-might provide for good faith speakers. Part II of this Article examines a recent, intriguing example of an alleged lie in a legal context drawn from a variety of related false, fraudulent, misleading, deceptive, or perjurious statements. As it turns out, it is an understandable wish to be able to analytically place all lies somewhere on a simple continuum, but that is doomed. As a concept, lying is a matter of astounding subtlety and complexity. It is probably more accurate to think of lies, collectively, as occupying positions on a nearly infinite gradient. That gradient, in turn, constitutes only a portion of a further, nearly infinite gradient necessary to locate the full variety of lies, false statements, fraudulent statements, misleading statements, deceptive statements, and perjurious or other related sorts of statements. Part III of this Article provides background to identify some general alternative perspectives on lying, and to add rigor and precision to the discussion. First, the work of some of the most influential writers on the subject of lying are sampled, including the classic historical discussions of the nature and value-or disvalue-of lying. Second, attention is devoted specifically to the influential work of philosopher Immanuel Kant. Finally, some of the very careful analytical and normative work of contemporary writers is reviewed, including philosophers, law professors, and social scientists-as well as some current disputes over the very definition and meaning of lying. Comments in this section apply the ideas of these different thinkers on the fugitive slave and Shoah cases described below. Part IV is the emotional center of the Article. It recounts clear instances of intentional lying to both private parties and government officials in two dramatic and extreme, though clearly important, historical contexts. The first involves intentional lies in the context of attempts to re-capture and return escaped fugitive slaves throughout the period ending with the American Civil War (fugitive slave cases). The second involves intentional lies, mainly to Nazi governmental or military officials, in the context of attempts to hide or otherwise protect mostly Jewish citizens from being sent to concentration and extermination camps over the course of the Second World War (Shoah cases). Part V discusses the basic values and purposes thought to be promoted by, and to thereby justify, a regime of freedom of speech. Specifically, the discussion addresses whether a number of the lies, on any familiar definition, told in the fugitive slave and Shoah cases could quite reasonably be described as distinctly advancing one or more of the basic free speech values and purposes. Indeed, in many of the examples considered, this is consistently the case. This Article concludes that lying in such cases, taken individually or collectively, often substantially advances several of the basic free speech values. The general conclusion will also apply to closer calls in related, but less extreme contexts. In summary, this Article will establish that some intentional lies, in themselves, are worthy of protection on free speech grounds.