Does the First Amendment Protect Falsehoods? A Framework

5 Pages Posted: 5 Dec 2022 Last revised: 15 Mar 2023

See all articles by Cass R. Sunstein

Cass R. Sunstein

Harvard Law School; Harvard University - Harvard Kennedy School (HKS)

Date Written: November 26, 2022

Abstract

Are falsehoods protected by the First Amendment? To answer that question, we need a framework. Four questions matter. The first question involves the speakers’ State of Mind (and hence their level of culpability). In saying something that is false, people might be (1) lying, (2) reckless, (3) negligent, or (4) reasonable but mistaken. The second question involves the Magnitude of Harm. How much damage is caused by the falsehood? There is a continuum here, but for heuristic purposes, let us say that the damage might be (1) grave, (2) moderate, (3) minor, and (4) nonexistent. The third question involves the Likelihood of Harm. Here too we have a continuum, including (1) certain, (2) probable, (3) improbable, and (4) highly improbable. The fourth and final question involves the Timing of Harm. Yet again there is a continuum, but for heuristic purposes, it might be (1) imminent, in the sense of occurring immediately, (2) imminent, in the sense of the occurring in the near future, (3) occurring not in the near future but reasonably soon, or (4) occurring in the distant future. As we shift from the four sets of (1) to the four sets of (4), the argument for constitutional protection gains force.

Keywords: freedom of speech, falsehoods, lies, First Amendment, libel

JEL Classification: K00, K1

Suggested Citation

Sunstein, Cass R., Does the First Amendment Protect Falsehoods? A Framework (November 26, 2022). Harvard Public Law Working Paper No. 23-02, Available at SSRN: https://ssrn.com/abstract=4286750 or http://dx.doi.org/10.2139/ssrn.4286750

Cass R. Sunstein (Contact Author)

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Harvard University - Harvard Kennedy School (HKS) ( email )

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