Academic

Spottswood on Insincerity & Freedom of Expression

By Lawrence Solum

Mark Spottswood (U.S. District Court for the Northern District of Illinois) has posted Falsity, Insincerity, and the Freedom of Expression (William & Mary Bill of Rights Journal, Vol. 16, No. 4, 2008) on SSRN. Here is the abstract:

Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly believed factual errors. Even worse, this dogma is flat wrong.

False statements often have value in themselves, and we should protect them even in some situations where we are not concerned with chilling truthful speech. When false statements are spoken sincerely, they are a useful and necessary part of argumentation, which is a powerful means of increasing human knowledge. When confronted with honest errors, proponents of competing beliefs have a natural impulse to contest them; in so doing, they unearth and disseminate facts that deepen the understanding of both speakers and listeners. False speech, therefore, is valuable because it is an essential part of a larger system that works to increase society's knowledge.

The benefits of false speech evaporate, however, when we move from honest errors to deliberate lies. Insincere speech tends to corrode, rather than further, argument. It is associated with a number of practices that deprive argument of its knowledge-promoting features. We may sometimes wish to protect insincere speech to avoid chilling truthful speech, but we should always do so cautiously.

After providing a summary of the existing law and scholarship concerning false speech, this Article analyzes the harms and benefits of false, insincere, and misleading speech. This question will be approached from the perspective of social veritistic epistemology, which will permit a detailed assessment of the consequences of various types of deceptive speech for the state of societal knowledge. I will conclude by suggesting some ways in which existing First Amendment doctrine could be reformed in order to better account for the constitutional value of false speech. Ultimately, it is insincerity, not falsity, which has no essential part of any exposition of ideas, and is of slight social value as a step to truth. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

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Full post as published by Legal Theory Blog on May 08, 2008 (boomark / email).