Liar Liar First Amendment on Fire?

Should it be a crime to lie? Though the First Amendment says that “Congress shall make no law … abridging the freedom of speech, or of the press,” Congress does exactly that in a number of realms. Think perjury. Think false advertising. Think stock market manipulation. Think national security secrecy. With Big Lies now poisoning the body politic, and technology circulating those lies at ever greater velocity, perhaps it is time for more false speech to be forbidden.

Consider what the country has endured over the past dozen years from just the falsehoods propagated by a single man. Even before Donald Trump’s presidency, he advanced the racist myth that Barack Obama was born abroad and, therefore, not eligible for the presidency. Trump’s term in office was marked by lying on a previously inconceivable scale: The Washington Post chronicled some 30,753 Trump lies over the course of four years. More than a few of those lies have been highly consequential. Trump’s false claim that the 2020 election was actually a landslide in his favor, stolen from him by a Democratic cabal, launched a bloody insurrection and has undermined faith in a duly elected President among a broad swath of the public.

Cass Sunstein’s latest book, Liars: Falsehoods and Free Speech in an Age of Deception, could thus not be more timely. Sunstein, the Robert Walmsley University Professor at Harvard, has trained his analytical mind on a problem of increasing urgency.

Sunstein professes two contradictory goals. The first is to “deepen the foundations” of the idea that “falsehoods ought not to be censored or regulated, even if they are lies.” The second is “to qualify these conclusions” and “take some of them back.”

Goal number one is today’s conventional wisdom. The idea behind it is that “we cannot trust officials to separate truth from falsehood; their own judgments are unreliable, and their own biases get in the way. If officials are licensed to punish falsehoods, they will end up punishing dissent.” False speech, in this view—and this is the position famously advocated by John Stuart Mill—should be countered not with censorship or punishment but with truth or “counterspeech.”

Goal number two arises from the limitations of our existing legal framework for handling falsehoods. Under it, false advertising and some kinds of defamation can be controlled. But there are other classes of falsehoods and lies, Sunstein contends, that cry out for a governmental response. And not only a governmental response: Private institutions like big tech and media companies should get more deeply into the act “to slow or stop the spread of lies and falsehoods.”

But one must begin at the beginning, as Sunstein does. From childhood we are all taught that lying is a bad thing. But is it always wrong, and why? Sunstein devotes a chapter to teasing out the differences between two opposing views. In the Kantian view, lying is absolutely forbidden: “Truthfulness in statements which cannot be avoided,” goes Kant’s formulation, “is the formal duty of an individual to everyone, however great may be the disadvantage accruing to himself or to another.” The utilitarian approach, on the other hand, is relativistic: whether lying is wrong depends entirely on the circumstances. For utilitarians, explains Sunstein, “it is not morally obligatory to let someone with a gun know how to find the person he intends to kill. It might well be morally obligatory to lie, if the goal is to save that person’s life.”

Sunstein himself is avowedly a utilitarian, not a Kantian. “We might think that there is a strong presumption against lying (ever),” he writes, “but contrary to Kant we might insist that the presumption can be overcome if the stakes are either very low or very high.”

Thus, in the utilitarian view, white lies are acceptable. So, too, are those which save lives; one need not be honest with that person pointing a gun. This seems far more intuitively reasonable than the strict Kantian view. And Sunstein is surely right that “a world of universal truth-telling would turn out to be quite painful.” Indeed, he continues, “an across-the-board taboo on lying would not be suitable for the human species.”

But how much lying should be forbidden by law? Sunstein believes we have erred in the direction of forbidding too little. Citing Russian interference in the 2016 election, he writes that “falsehoods are increasingly credible, and they pose a serious threat to democratic aspirations.” But even as the problem of falsehoods grows, our system of laws has moved in a more permissive direction. Two seminal Supreme Court cases illustrate the trend.

In 1964, in New York Times v. Sullivan, the Court placed enormous obstacles in the path of a public official who wants to sue for defamation. To win a case, the public official has to prove “actual malice,” a very difficult standard to meet. Sullivan is celebrated today as a triumph for freedom of the press, but Sunstein has serious reservations. He notes that from the point of view of originalism, the decision is almost impossible to defend and approvingly cites Clarence Thomas’ scathing analysis of the case. Sunstein himself calls the decision “radical,” something that eviscerated the law of defamation. The upshot of Sullivan is that “good people are subject to real damage, and those who do the damage usually cannot be held accountable in any way.”

In 2012, in United States v. Alvarez, the Court went even further in the latitudinarian direction, ruling for the first time that false statements, as such, enjoy First Amendment protection. The defendant in the case was Xavier Alvarez, who ran into trouble for saying, “I’m a retired Marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.” Every word of this was false, and one sentence in particular was illegal: Alvarez’s claim to have received the Congressional Medal of Honor violated the Stolen Valor Act.

The Supreme Court struck down this law, ruling that it would embroil the government in compiling a list of subjects about which false statements are punishable, giving it a power that “has no clear limiting principle” and noting that “our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.” Sunstein finds that the Alvarez Court “said a number of reasonable and important things about freedom of speech” but that “its ultimate ruling was wrong, even preposterous.” He notes that Congress has outlawed a variety of lies—perjury and lying to the Federal Bureau of Investigation, for instance—and “those prohibitions have not led to an Orwellian nightmare.”

Sunstein does not confine himself to the legal sphere. He also delves deeply into the role that private corporations like Facebook, Twitter, and YouTube can play in limiting the circulation of falsehoods on their platforms. He pays special attention to the novel issues raised by deep fake videos, which could have particularly pernicious effects in the political realm: “A doctored video might show people supporting a cause they abhor, committing a crime, showing disloyalty to their country, acting inappropriately when they did nothing of the sort, or being inebriated or otherwise impaired.” Sunstein advocates government regulation, which at a minimum might entail disclosure requirements but, in the case of defamatory deep fakes, outright prohibition.

A distinguishing feature of Liars, as with all of Sunstein’s work, is its exceedingly measured approach to the issues under consideration. Throughout, Sunstein holds up opposing views for careful scrutiny and concedes to them where concession is appropriate. Such a thoughtful mode of analysis is especially welcome at a moment when the temperature of the country is so elevated and reasoned discourse in such short supply.

With the country awash in lies, Sunstein’s claim seems persuasive that the time has arrived to rethink a legal structure created under very different conditions in a very different era. Sunstein’s version of that rethinking—including its frontal challenge to a freedom-of-the-press landmark like Sullivan—is sure to raise hackles in the journalistic world and among First Amendment absolutists, making it all the more courageous for Sunstein to advocate for it.

To be sure, Sunstein remains on the side of maximally feasible free speech. The general principal he supports holds that false statements should be constitutionally protected “unless the government can show that they threaten to cause serious harm that cannot be avoided through a more speech-protective route.” He is clear-eyed about the downside of government intervention, including the fact that “regulation of false statements might and probably will chill truthful statements.” But he performs a useful public service in calling attention to the other side of the coin, namely, as he writes, that “a chilling effect can be an excellent safeguard.”

Gabriel Schoenfeld, a contributing editor of American Purpose, is a senior fellow at the Niskanen Center and an opinion columnist for USA Today.