Lies in the Land of Confusion

Should there be legal consequences for telling falsehoods? The Supreme Court has created a complicated, murky landscape

Labyrinthine. The Supreme Court has created confusing conditions when it comes to the legality of telling lies. Image Credit: Flavio Coelho/Getty Images

This is the third in a series of essays looking at the challenges of a commitment to free speech. The first, on what it means to be a free speech absolutist, can be read here, and the second, on obscenity and free speech, can be found here.

For a free speech absolutist, all speech and every speaker, no matter how repugnant, are protected by the First Amendment. That principle even extends to someone as exasperating as Xavier Alvarez.

Alvarez couldn’t be trusted with the time of day. He lied ceaselessly and compulsively. He hungered for attention and unearned admiration. The life story he dreamed up for himself was so far-fetched that it could’ve been the subject of epic biographies: He’d been a professional athlete, married a “Mexican starlet [who] caused paparazzi to swoon” and performed great feats of international heroism. Each of his claims was as spectacular as it was false. He wound up lying his way straight into a prison cell for insurance fraud and theft.

The Supreme Court tells us that some lies are protected by the First Amendment and some aren’t. Alvarez told all kinds. After years of contentious litigation, his place in history has been secured not by the lies for which he was ultimately punished, but for those the Supreme Court chose to protect.

On July 23, 2007, while attending a local water board meeting, he announced that he was a retired Marine, wounded in battle, and had won the Congressional Medal of Honor. These deceptions violated the Stolen Valor Act, which sought to preserve the prestige of military honors by punishing those who dilute their value with lies about winning them. Alvarez was sentenced to probation, community service and a fine before his conviction was overturned.

One can’t be blamed for asking why someone like Alvarez—who even stood for a picture wearing a fake military uniform with pretend medals on his chest—should be protected by the same Constitution many of the servicemen he insulted died defending.

The Supreme Court failed to give us a clear answer. There was no majority opinion in Alvarez’s case. Instead, a fractured coalition of six justices left two minority opinions striking down the Stolen Valor Act, both firmly rejected by three justices in dissent. The plurality opinion, which got four of nine votes, argued that the Stolen Valor Act is unconstitutional because, while many kinds of lies can be punished, those Alvarez told hadn’t caused any “legally cognizable harm”—the type of harm that provided a basis for a legal claim—and involved mere “falsity and nothing more.”

However, the three justices in dissent—Justices Samuel Alito, Antonin Scalia and Clarence Thomas—described his duplicity in dire terms. We were living through an “epidemic of false claims,” they announced, “[that] were undermining our country’s system of military honors and inflicting real harm on actual medal recipients and their families.”

How could four justices see mere falsehood and three see an epidemic of harm against “only the bravest of the brave”? There’s no evidence that either side of this debate considered ruling that even the worst fibs—as long as they’re just fibs—don’t require police intervention.

Lies are always at least a little harmful, because even at their most benign—even when they’re comforting—they steer listeners away from the good that comes by learning something that’s true. Most lies do far worse. They often destroy friendships, break hearts and sow confusion. By perpetuating the court’s longstanding tradition of balancing free speech against other social interests, and drawing arbitrary lines between lies that the Constitution does and doesn’t protect, the court has invited Congress and state legislatures to pass laws that turn law enforcement agencies into truth detectives with confusing, irrational mandates—and they’ve accepted that invitation.

The text of the First Amendment reads that “Congress shall make no law … abridging the freedom of speech.” In an opinion dealing with illegal falsehoods written more than 50 years ago, Justice William O. Douglas explained that “Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated with reasonable searches and seizures,” the First Amendment contains no such temporizing language. Its promise of free speech is absolute. Because lies are speech, it protects them absolutely—even when, to most of us, doing so seems unreasonable. None of the other justices joined Justice Douglas’ opinion, and none has adopted his view on this issue since.

This absolute protection is beginning to meet a new challenge. Artificial intelligence programs are suddenly everywhere. They amplify malicious fiction disguised as news, and social media gives the bad actors who spread it an unprecedented audience. How many of the virtually infinite online deceptions will courts find “legally cognizable”? The Supreme Court could’ve given us a clear answer in the Alvarez case. Instead, this area of the law is a land of confusion.

Lying and the Law

It makes perfect sense that governments should want to regulate lies. Not only are they harmful, they’re ubiquitous. While most of us aren’t pathological fabulists like Alvarez, research shows that we lie with alarming regularity. According to one famous study, the average person bears false witness at least once per day.

Within fluctuating limits, courts have always allowed legislatures to regulate falsehoods. Perhaps the most notorious example is the Sedition Act of 1798, which made it a crime to publish “false, scandalous and malicious writing or writings against the government of the United States.” In short order, President John Adams, whose signature enacted the law, converted his administration into an aggressive ministry of truth. Prosecutors convicted newspaper publishers and a sitting congressman who spoke “falsely” about the government with a 100% success rate.

One author was fined and sentenced to nine months in jail for publishing that Adams was a “repulsive pedant, a gross hypocrite, and an unprincipled oppressor.” In anticipation of the act’s passage, an editor was arrested after his paper referred to the president as “[o]ld, querulous, Bald, blind, crippled, Toothless Adams.” While the Supreme Court never heard any appeals from these defendants, and eventually denounced the Sedition Act in a 1964 opinion, the federal judiciary did nothing to curb the government’s effort at the time.

While his views on free speech may not have been altogether consistent throughout his long life, Adams’ political rival, Thomas Jefferson, whose Republican supporters were being imprisoned as liars, had a radically different view of the First Amendment, especially during this period. “Libels, falsehood and defamation … are witheld from the cognisance of federal tribunals” by the Constitution, he wrote.

After defeating Adams for the presidency in 1800, he decided to repudiate rather than imitate Adams’ abuse of power. He welcomed the expiration of the Sedition Act and pardoned everyone who’d been convicted under it. In his inaugural address, he promised reconciliation and an administration that would tolerate falsehoods directed against it, no matter how objectionable or incendiary. “We are all Republicans, we are all Federalists,” the address reads. “If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.”

Notice that Jefferson refers to “error of opinion,” not fact. State legislatures and Congress understand that matters of opinion are protected by the First Amendment. For that reason, the text of the Sedition Act, like that of the Stolen Valor Act and every other truth-policing statute, prohibited only false assertions of fact.

However, in practice, the line between fact and opinion can be impossibly blurry, as Jefferson learned first-hand during the Sedition Act prosecutions. Was John Adams really “bald,” for instance? Or was that just publisher Benjamin Franklin Bache’s opinion? How many hairs can one have on one’s head and still, as a matter of fact, be bald? To Jefferson—and the Constitution—whether the president is or isn’t bald should always be up to individual citizens, not courts, to decide.

Instead, under the court’s current categorical approach to First Amendment interpretation, some lies “are of such slight social value as a step to truth” and so apt to cause harm that they fall outside the protection of the First Amendment. Defamatory lies, for instance, aren’t protected because they both attack truth-seeking and injure the reputations of their victims. This is what happened when The Saturday Evening Post falsely reported that University of Georgia football coach Wally Butts had fixed a football game against rival The University of Alabama, resulting in an embarrassing 35-0 loss.

It only seems fair to require that, in cases like this, liars pay for the harm they cause. Throughout our history, the Supreme Court has carved a section out of the First Amendment to give victims like Coach Butts a legal remedy.

However, this isn’t how justice is served in a society that prioritizes free expression above every other social interest, as the First Amendment requires. Instead, each of us should get to decide for ourselves what’s true, what isn’t and whom to trust without being issued unchallengeable instructions from a state authority.

The cost of this freedom is shared social and political responsibility. As Justice Louis Brandeis once explained in an opinion that reads like literature, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” We have a civic duty, he tells us, to persuade our fellow citizens to correct the bad speech we hear with good speech. “Outrage” over lies, Justice Anthony Kennedy explains in one of the better passages of his plurality opinion in Alvarez, should “reawaken and reinforce the public’s respect” for truth.

The Constitution presumes an intellectually curious and conscientious citizenry that honors its truth-seeking responsibilities. “The greatest menace to freedom,” Brandeis writes, “is an inert people.” It’s the job of a free press, staffed by fearless investigative journalists, to get to the bottom of every story and disabuse the public of any falsehoods, like those spread about Coach Butts.

Determination, counterspeech, social pressure and the stigmatization of dishonesty, not the proclamations of politicians or judges, is the remedy “those who won our independence” had in mind for us. To the extent news media, whose problems are real and well-documented, are failing at their task, we should restore them rather than give their responsibilities to the judicial system.

This worked in Alvarez’s case. Even before he went to trial, he was exposed, discredited and shunned by those around him. The public didn’t need a judge to tell it he was a liar. The marketplace of ideas corrected itself.

From Tech Anxiety to Censorship

Throughout history, every invention that has amplified human communication has been accompanied by anxiety and the urge to censor. It was true of the printing press, movie camera, television, the internet—you name it. When radio listeners suffered a collective meltdown after listening to Orson Welles’ broadcast of “War of the Worlds” in 1938, wondering if Martians really had invaded Earth, the Federal Communications Commission launched an investigation. While it took many years to adopt, the FCC has since imposed a “rule against hoaxes” that limits free speech on the radio.

Politicians have been beset with similar fears about social media for the past several years. Now, with the advent of artificial intelligence programs, fear has exploded into panic.

About 10 years ago, many of America’s most credentialed legal experts began ringing alarm bells for more censorship. Some wrote as if a latent “War of the Worlds”-type hoax existed on every Facebook page. Nothing less than our “democracy” and “national security” was at stake, they insisted.

The quintessential example of this type of article is Columbia University Law Professor Timothy Wu’s “Is the First Amendment Obsolete?” Wu argues that, in light of new communications technology, the unregulated exchange of ideas is no longer advisable and that criminal laws are necessary to protect the “channels of online speech” from “fraud, deception, or harassment.” Wu values freedom of expression, he assures us, and finds rereading the “canonical” Supreme Court opinions that describe a robust First Amendment “stirring and exciting.”

”Unfortunately,” he writes, “there is reason to fear it is entering a new period of political irrelevance.” It’s with more sorrow than anger, as if thanking them for their service, that he counsels the abandonment of fundamental speech rights. Instead of trusting the people, as the authors of the “outdated” canonical opinions did, Wu would bring in “law enforcement,” which, he tells us, “has its work cut out for it.”

By 2024, Wu had abandoned the question mark in his article’s name: He wrote an essay for The New York Times that year titled “The First Amendment Is Out of Control.”

In 2022, former President Obama presented a popularized version of these scholars’ renunciation of free speech principles to a thrilled audience at an event co-sponsored by Stanford’s Cyber Policy Center. “I’m pretty close to a First Amendment absolutist,” Obama assured the crowd, as he delivered a lengthy address on the pressing need to censor the internet. A Russian menace of state-sponsored trolls, he warned, “could almost guarantee that whatever disinformation they put out there would reach millions of Americans. And that the more inflammatory the story, the quicker it spread.”

Obama didn’t use the words “censor” or “censorship” in his speech, though. Instead, he spoke of “content moderation” and “managing toxic content.” What he was urging, though, was censorship. When a social media company removes your post or deletes your account, you’ve indeed been censored.

Whenever someone replaces a perfectly good word with a vaguer one that sounds less frightening and has more syllables, he’s either a bad speaker or up to no good—and Obama’s an excellent speaker. The only meaningful difference between “censorship” and “content moderation” is that those using the former might be trying to warn you about what those using the latter are trying to do to you. Whichever term you prefer, they both mean that someone is forcibly silencing someone else.

The greatest political writer in our language, George Orwell, and our greatest stand-up comedian, George Carlin, explain how politicians assail us with these euphemisms more eloquently than I can.

Thanks to some intrepid reporters, we’d later learn that the site of Obama’s speech, Stanford University, was one of the hubs of a vast “Censorship Industrial Complex.” Researchers at Stanford’s Cyber Policy Center had been working closely with federal agencies, including the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) to scrub and de-amplify what they believed to be disinformation, misinformation and “malinformation.” The latter, journalist Michael Shellenberger explains, “is when accurate facts are used to ‘mislead’ people through ‘false narratives.’”

Our leaders didn’t trust us to distinguish fiction from falsehood, so they decided to do it for us. CISA Director Jen Easterly announced that her agency had jurisdiction over our national discourse. “[W]e’re in the business of protecting critical infrastructure,” she announced at a conference, “and the most critical is our cognitive infrastructure.” She helped lead the effort to pressure social media companies to censor what she and her colleagues in the federal government deemed false speech, especially on the COVID pandemic but on other issues, including political elections, as well.

She couldn’t have been clearer about her motive: “We live in a world where people talk about alternative facts, post-truth, which I think is really, really dangerous if people get to pick their own facts.” Easterly and her colleagues decided it was time to pick them for us.

According to Shellenberger, CISA “deputized” Stanford Internet Observatory Director Alex Stamos, previously Facebook’s chief security officer, as the government’s “domestic ‘disinformation’ flagger.” The Internet Observatory was part of Stanford’s Cyber Policy Center. Stamos attended Obama’s Stanford speech and helped explain its urgency to the public on MSNBC.

President Biden didn’t merely regard the problem of internet lies as urgent. He publicly announced that social media companies were “killing people.” The White House, the Federal Bureau of Investigation, the surgeon general, the Centers for Disease Control and other agencies worked largely in secret with universities and private organizations to scour the internet for falsehoods they could silence. The states of Missouri and Louisiana fought back, claiming in Murthy v. Missouri that the administration was pressuring social media companies into targeting conservative critics in particular.

Supporters of the Biden administration have described the Supreme Court’s decision in Murthy as having cleared the president’s team of censorship charges. That’s untrue. In that case, the court merely ruled that, for complex jurisdictional reasons, the censored plaintiffs didn’t have standing to bring their suit. It was a procedural, not a substantive, decision. To have standing, they’d need to more convincingly show both that social media companies were acting as government surrogates while censoring them and were likely to do so again.

Just two months later, with additional information, a federal judge in Louisiana ruled that the plaintiffs, including current Secretary of Health and Human Services Robert F. Kennedy, had met the standard the Supreme Court announced in Murthy. However, that decision was overturned by the Fifth Circuit Court of Appeals and sent back down to the lower court in Louisiana for further consideration. Trump’s electoral victory and Kennedy’s appointment as a cabinet secretary have complicated the case. The upshot of this complex jurisdictional odyssey is that no court has ever ruled on the essential question of whether the Biden administration violated the First Amendment.

The courtroom drama in this case has given us a welter of legal opinions thick enough to fill volumes. The legal issues are complex, but the factual story the opinions tell is clear and easy to follow. They describe, in detail, the most comprehensive federal censorship apparatus in American history. Meta CEO Mark Zuckerberg seems to have resented how he was pushed around. He largely confirmed the core claim against the Biden administration recently when he acknowledged in a letter to Congress that government officials “repeatedly pressured” his company to take down content that challenged the administration’s COVID policies, “including humor and satire.”

“I believe the government pressure was wrong,” he explained in his letter, “and I regret that we were not more outspoken about it.” Zuckerberg’s quote underscores two eternal truths about censorial regimes: They always indulge in more of it than necessary to achieve their stated purposes and they always target jokes, even when, as with COVID, people need them most.

“President Joe Biden is the most anti-free speech president since John Adams,” law professor and television pundit Jonathan Turley writes. His comparison to the Adams administration is especially apt. Both presidents claimed to be censoring false factual assertions, but instead targeted dissenting opinions, especially those of their political rivals. Just as Adams only targeted Jeffersonians, Biden’s censorship efforts focused primarily on Trump supporters.

Perhaps no one has written about the Censorship Industrial Complex more eloquently and exhaustively than journalist Matt Taibbi, who noticed some parallels between the Biden and Adams administrations in testimony to Congress, as well. “You cannot have a state-sponsored system targeting ‘disinformation’ without striking at the essence of the right to free speech,” he testified. “The two ideas are in direct conflict.”

Just as the American people rejected Adams for Jefferson, they rejected Biden for Trump—though Trump has hardly been as gracious to his political opponents, or as unwilling to censor, as Jefferson. Expression using artificial intelligence and deep-fake technology, especially on social media, where most Americans get their news, has already resulted in deeply intrusive state and federal speech regulations, including a major bill signed into law by Trump.

Again, it’s easy to see why. Machine-generated sounds and images have never looked more real, spread so quickly or been a bigger part of our national discussion. They’re doing a good job of tricking us, too. A Utah Valley University study shows that deep-fake videos fool Americans more than half the time.

During the 2024 presidential campaign, satirist Christopher Kohls posted a deep-fake video depicting an exaggerated version of Kamala Harris looking foolish and making embarrassing statements. The video was re-posted by Elon Musk, went viral and got lots of laughs. Failing to recognize a joke when it saw one, Harris’ home state of California responded by passing a “deceptive media” law punishing deep fakes that harm the “electoral prospects” of political candidates and undermine “confidence in election results.”

The satirist who posted the video just won the first battle of the litigation war to decide whether the law is constitutional. While California argued that the law “falls into the possible exceptions [to the First Amendment] recognized in Alvarez,” the judge cited a 1964 case that gave special protections to lies told about government officials, like Harris.

More litigation is coming—fast. As a result of the Supreme Court’s fractured and confused response to the fake Medal of Honor winner’s case 13 years ago, it’s anybody’s guess what the next court is going to say.

The Cure Is Worse Than the Disease

New technology doesn’t require the abandonment of our nation’s core ideals. To the contrary, it’s precisely those ideals that will protect us and keep us free.

If allowed, Americans will solve the problem of online fakery without government interference. We don’t like being lied to. We resent it and are apt to take action against it. Necessity breeds invention, and in this case, it may do so in the form of new fraud-catching technology. AI-detection programs are already proliferating. The more we practice catching and exposing high-tech liars and their techniques, the better we’ll get at it.

Not long ago, a friend sent me a poignant photo of a battlefield that, after who knows how much bombing, had become a desolate hellscape devoid of life. I found it so compelling that I showed it to my 15-year-old son. Unimpressed, he instantly recognized it as AI-generated. He then began teaching his clueless middle-age dad what to look for so he doesn’t get tricked again. I then informed the friend who sent it to me.

Like everyone else in a free marketplace of ideas, the government may share its views on what’s true and what’s false. However, it can’t lawfully use force to win political debates against its own people, as the Adams administration did. Nor can it suppress claims on important issues of public concern, as the Biden administration did. Politicians who presume to eliminate lies always wind up doing so in ways that promote their own interests. The cure is always worse than the disease.

When it comes to the law, there are always exceptions—even for absolutists. There are, in fact, certain kinds of deceptions that are so inseparably connected to criminal conduct that even the most adamant free speech defender would concede that they aren’t protected. In these exceptional cases, the lies are treated like conduct rather than speech because they both cause harm and are themselves the harm they’re causing.

Those who impersonate police officers, lie to federal investigators or, to quote Justice Oliver Wendell Holmes, “falsely shout … fire in a theatre and caus[e] a panic” are examples. Shouting “Fire!” is a particularly good example because the speech is virtually indistinguishable from the physical act of pulling a fire alarm. In cases like these, where speech is devoid of intellectual content, inherently harmful and “brigaded with action,” it isn’t considered “speech” at all for First Amendment purposes. Just as a mob boss can be punished for ordering another to kill because his words are an inherent part of the murder, a perjurer can be punished because his lies are inherently injurious to our system of justice. Most lies don’t fit into this narrow—and admittedly complex—subcategory.

At bottom, lies and censorship inflict the same injury: They push those seeking the truth further away from it. Healthy societies reduce both to an absolute minimum. Fool me once, shame on you. Fool me twice, there’s still no need to call the police.