Lying and Freedom of Speech

Abstract

This Article, prompted by recent criminal cases involving alleged false claims to have been awarded particular military medals, addresses broad questions of lying and freedom of speech. The Supreme Court has held that false assertions of fact – let alone outright lies – have no value for free speech purposes. With more nuance, the Court has also said that as a realistic matter, courts should protect some false speech in order to provide “breathing space” for, or to avoid inhibiting, good faith speech on important matters. This Article argues, however, that lies can actually have substantial, direct, and independent free speech value. Such lies can, under given circumstances, uniquely promote one or more of the standard reasons for protecting speech. While this may initially seem paradoxical, the Article considers in particular two kinds of extreme cases: first, lying in the context of fugitive slave cases, where the lie is told either by the fugitive slave, or by someone assisting the fugitive slave; and second, lying, especially to officials, by threatened Jews, or by others seeking to protect them, in Nazi-controlled territories. The alternatives to lying in such cases are carefully considered as well. The Article then considers less extreme cases, and concludes that in particular circumstances, lying, on any reasonable definition, may distinctively promote any or all of the standard free speech values. Whether a particular lie, or kind of lie, should ultimately be constitutionally protected will of course depend upon an appropriate judicial free speech test.