True and False Speech
Christopher P. Guzelian
Thomas Jefferson School of Law
August 16, 2008
Boston College Law Review, Vol. 51, p. 669, 2010
Stanford Public Law Working Paper No. 924722
Northwestern Public Law Research Paper No. 924722
First Amendment law suffers from structural instability because it does not properly address liability for false speech. It is, in other words, "unpredictable." ("Unpredictability" means a speaker cannot accurately predict whether her contemplated communication is protected from legal liability. Scholars have long recognized that unpredictable law causes the Rule of Law's collapse.)
This article demonstrates that an effective first step in making First Amendment law more predictable is to create explicit liability for false scientific speech, governed by predictable liability rules. We demonstrate that the most serious objections to formalized false scientific speech liability apply with equal force to any form of legal liability. Thus, rejection of predictable false scientific speech liability requires deep reconsideration about how most legal liability, not only First Amendment liability, should be wielded.
Number of Pages in PDF File: 50
Keywords: First Amendment, Predicted Liability, Predictable Liability, Free Speech, False Speech Liability, Misleading Scientific Opinions, Uncertainty, Science, Evidence-Based Logic, EBL
JEL Classification: K13, K32, K41, L15, L40, D81, D61, D62, D80, Z00
Date posted: August 18, 2006 ; Last revised: December 29, 2010
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