Should we protect false speech in the era of ‘alternative facts’?

Does the First Amendment protect your right to lie? Is it still protected speech if it is false speech? The short answer is yes and no. Yes, false statements are protected as a form of speech, but no, it isn’t in all cases. As Brandon May explains in a recent article, The Supreme Court states that ‘falsity alone is not enough to warrant regulation and that there must be some extenuated circumstance attached to the falsity — like malice or perjury, for example — for government sanction of false speech to be valid.’

Simply lying to a friend or a random passerby about a fact about yourself doesn’t constitute false speech that is able to be regulated. Rather, statements such as those when committing perjury, calling 911 and reporting a nonexistent crime, or yelling fire in a crowded theater when there is none, are examples of false speech that can be regulated.

Whether it’s causing public panic, wasting the time and resources of public services, or said with malice, if it is connected to extenuating circumstances, then government may regulate falsehoods. Thus far this has been very limited in its application, usually only done in cases for the betterment of public safety or commercial falsehoods that would cause harm. For instance, medications cannot promise to cure a disease or make grand claims on its effectiveness unless they include a warning that these statements aren’t proven. This sort of getting around the rules is something frequently seen and perfectly okay to the Supreme Court because it contains the disclaimer.

But it’s another matter entirely to me, when government officials give objective lies to their constituencies and the press without any form of disclaimer or consequence. False speech can be incredibly dangerous, as we learned all too well with the telephone game that was “weapons of mass destruction.” If you were to look at history, there are likely hundreds of tragedies and wars based upon falsehoods. Do I think we should never lie? Of course I don’t, lying is great. Getting away with a white lie sometimes just makes life easier, and sometimes it’s just kinder if you veil the truth.

It is understandable when the Executive must lie in order to protect national security or retain confidentiality. However, when the government is releasing objective falsehoods and statistics that can be easily disproven, it’s frustrating that there are not rules surrounding misinforming the public. When it’s not a matter of top secret information, but rather lying about statistics, events, and news, it shouldn’t be so easy for government officials to lie when their statements hold a lot of power.

I’m not saying the qualitative statements, mistaken falsehoods, or political maneuvering should be regulated. Of course not, this is politics we’re talking about. However, objectively false speech where the numbers or news reported ignore the facts and reports, it should be a question on whether this is negligent or not.

Most people won’t bother to fact check or read the dozens of fact checking articles published everyday. If you get yours news directly from the sources, government officials have a responsibility to not intentionally misguide their constituents with false information. It is negligent to warp reality to conform with a political agenda, particularly one that would directly harm a community. I’m looking at you Mr. “Mexicans are rapists”

I’m unsure if legally there would be a path to regulate false speech without chilling unintentional falsehoods. I look forward to see if a case were to come to Supreme Court in today’s era of “alternative facts” challenging the First Amendment protection of false speech, whether the Supreme Court would decide in the same way. But with the new makeup of the Court, this may just be one of the other things thrown in the bin waiting for Congressional action to one day come.



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