Fake News and the First Amendment: Free Speech Rules (Episode 3)
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Fake News and the First Amendment: Free Speech Rules (Episode 3)


Can the law punish deliberate lies about
public matters? Well it depends. Here are the six rules of fake news One: false statements that tend to damage reputations can generally be punished. Of course the law doesn’t call this fake newsit calls it defamation. Written defamation is called libel, spoken defamation is called slander, radio and TV broadcasts are usually considered libel except in Georgia where they’re
called “defamacast.” No, really. They made up a new word for it and it’s not catching on. Intentional lies about particular people or companies can lead to massive damages awards including punitive damages. they can even lead to criminal punishment in states that still have criminal libel laws though such prosecutions are pretty rare. Negligent mistakes about particular people or companies can also lead to damages awards unless the statements are about
public officials or so-called “public figures” people or businesses who are
quite famous or influential those plaintiffs have to show the speaker knew the statement was false or at least was likely false and in many states some
falsehoods about particular people can lead to damages even if they don’t harm
a person’s reputation That’s called the “false light tort.” Classic example:
baseball great Warren Spahn once won a damages award because a biographer had
falsely claimed that Spahn was a war hero even though that tended to falsely
enhance Spahns’ reputation rather than harming it. Two: Deliberate lies aimed at
getting money can be punished as fraud that’s true even for political religious
or charitable fundraising which is usually protected by the First Amendment. If you try to get people to donate money to your group but lie about what it’s
doing you could be sued or even prosecuted but it’s not clear how far this goes. For example no appellate court has allowed a fraud lawsuit against a magazine on the theory that it lied in some sensational story so as to sell more magazines. Three: Deliberate lies as well as honest mistakes in commercial advertising can be punished. Commercial advertising is generally less protected than other speech especially when it comes to false statements. Four: Lies about the government can’t be punished. The federal government can’t sue you for
defamation even if you deliberately lie about something the government has done. Cities or public universities can’t sue for defamation either Back in 1798, Congress tried to ban lies about the federal government with the infamous Sedition Act Some justices at the time thought the law was fine but the Supreme Court has since concluded that such a ban violates the First Amendment. Five: Lies about big-picture topics generally can’t be punished either. So a law banning Flat Earth theory for instance would be unconstitutional same for laws that try to punish falsehoods about say climate change or vaccinations. In these broad areas the justices say ‘any attempt by the state to penalize
purportedly false speech would present a grave and unacceptable danger of
suppressing truthful speech.’ Six: Lies about more specific topics are more complicated. In 2012 the Court struck down the Stolen Valor Act which criminalized falsely claiming that you’ve won a military medal but while six justices agreed on that result the reasoning was split into two groups: Four justices said that most non-commercial lies are broadly protected by the First Amendment unless they fit into a few categories such as defamation or fraud or perjury. But two justices concluded that lies are only kinda sorta
sometimes protected. They held that restrictions on such lies warrant neither near automatic condemnation nor near automatic approval. So whether any kind of particular lie is unprotected was left to be decided case-by-case
without much guidance from the Supreme Court. Since it generally takes five
justices out of nine to set a conclusive precedent it’s hard to say what’s allowed and what’s not. You’d think a question that’s this fundamental would have been resolved by now but no. So for instance some states ban deliberate lies
in election campaigns Is that constitutional? Not if it’s applied to statements about the government or about social science or history. But what if it’s more specific like a candidate claiming endorsements that he didn’t actually get? That’s a harder call and lower court’s disagree on whether broad bans on lies in election campaigns are constitutional. Or what about hoaxes that
suck up police resources? Back in 2009 Andrew Scott Haley posted YouTube videos in which he purported to be a serial killer and gave clues to his supposed killings He was eventually prosecuted for making false statements that he knew would come to the attention of law enforcement and trigger an investigation. The Georgia Supreme Court held that the First Amendment to did not protect such a hoax. The US Supreme Court refused to consider the case leaving that issue unresolved outside Georgia. So to summarize: Deliberate lies about particular people or companies are unprotected by the First Amendment, that’s sometimes also true of negligent mistakes, deliberate lies aimed at getting money:
unprotected, Deliberate lies aimed at selling products: also unprotected and honest mistakes might be too, Deliberate lies about the government protected by
the First Amendment, deliberate lies about philosophy, religion, history, social
sciences, the arts and the like: protected, other deliberate lies about more
specific topics? Hard to tell… This is not legal advice.
If this were legal advice it would be followed by a bill. Please use responsibly. Written by Eugene Volokh who is an actual real-life First Amendment law professor at UCLA I’m Eugene Volokh and I approve this message

44 Comments

  • wolfpack4128

    Here's the problem, fake news usually has no victim explicitly. So stating the lie women make 77 cents to the dollar a man makes has no victim that can easily be identified and showing how that statement hurt you is next to impossible. Best way to handle it is to allow the lie and allow the marketplace of ideas to destroy it.

  • room-ten-oh-nine !

    So tell me, is this slander/libel or not? "Beto O'Rourke screwed my dog, now my dog wants to commit suicide" or My mule thinks AOC is mocking him every time she opens her mouth"

  • Kevin Morrison

    We the people need to take responsibility for those that lie to us and make sure they pay socially for their indiscretions! Does not have to be a law for it, all we need to do is stick together as a society and make them wish they would not have! Of course that would depend on educating people and looking at how many idiots believe the lies they are being pumped full of that is not going to happen anytime soon!

  • Willy Evans

    A lot of people are confused about the Constitution and the amendments in it. The Constitution was a compact between the 13 states that existed at the time when those 13 states created the federal government. The Constitution tells the federal government what it can and cannot do. It has nothing to do with your relationship to me. It has to do with your relationship to the federal government. The right to free speech in the 1st Amendment is there so that you can say what you want about the federal government and the federal government can't do anything about it. That's all it is…or is supposed to be anyway. It is to protect your from the federal government. Nothing more.

  • Bushrod Rust Johnson

    This video is hard to take in. It probably looks like gibberish to the five minute video target audience.

  • Adam D

    I think you have to let it all go. but if you cost the government money by lying like Smollet you should have to pay for it.

  • Loathomar

    The Andrew Scott Haley case got partly over turned, but still seems unreasonable. There is a "line in the sand" where Andrew Scott Haley case would be reasonable, which is, when law enforcement contacted him about the case, which they did and he told them the truth once he was informed the police where looking into the case. But his conviction was based on "Giving false statements to a law enforcement officer" simply because of his video, which just seems stupid.

  • Tim Gautier

    So when pushy CenturyLink salesmen come to my door and tell me I need to switch internet providers because 1 Mb/s on CenturyLink is equal to 100 Mb/s on cable, that's a deliberate lie to get money from me and not protected by the 1st?

  • Gallen Dugall

    The answer is better consumers.
    People need to stop listening to morons who are just saying what they think you want to hear.

  • kim wiser

    How do you stop the activists that are attacking people online. Trying to get people fired or threatening their family. Giving out their addresses or spreading lies about them?

  • ceruchi

    Thank you to Prof. Volokh. These short videos are very useful. I would have liked a court precedent for every number though, just so that it would stick in the memory better.

  • Iustinian Constantinescu

    I think the most reasonable solution is to create a few symbols that imply legal action, much like the TM symbol right now.
    Anything without any such symbol would be 100% fully protected no question.
    There could be a symbol for 'I can go to court if this is proven to be a intentional lie', one that includes honest mistakes and maybe a few more.
    The problem of people flat out lying in ads and whatnot would be solved by ads without any such symbol being untrustworthy.

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