Facts and the First Amendment (the Melville Nimmer Memorial Lecture)

Abstract

A pervasive problem in public discourse is the seemingly increasing prevalence in public debate of demonstrably false factual propositions, such as the non-American birth of President Obama, the prior knowledge of President Bush of the September 11 attacks, the intentional creation of AIDS by physicians and pharmaceutical companies, the non-existence of the Holocaust, and the predictive accuracy of astrology. Yet although this phenomenon is a serious problem for public discourse, it is one that the First Amendment tradition fails to address. In relying on the implausible epistemic claims of “marketplace of ideas” and “search for truth” rationales for freedom of speech, the First Amendment tradition is embarrassed by the way in which falsity thrives even under conditions of widespread freedom of speech. Moreover, a close look at the landmarks of the free speech literature from Milton’s Areopagitica to the present shows that the problem of factual falsity was simply not the concern of those who created and fostered our free speech tradition. This is not to say that widespread government regulation of non-commercial factual falsity is wise or constitutionally permissible. It is to say, however, that making progress against the problem of public falsity will require recognizing that free speech doctrine and principles are only a small corner of a wise communications policy, and that such a policy will attempt to deal with widespread factual falsity in ways that the free speech tradition cannot.