Lying and Freedom of Speech

Utah Law Review 2011 p. 1131

30 Pages Posted: 25 Aug 2020 Last revised: 4 Sep 2020

See all articles by R. George Wright

R. George Wright

Indiana University Robert H. McKinney School of Law

Date Written: March 9, 2011

Abstract

This Article, prompted by recent criminal cases involving alleged false claims to have been awarded particular military medals, addresses broad questions of lying and freedom of speech.

The Supreme Court has held that false assertions of fact – let alone outright lies – have no value for free speech purposes. With more nuance, the Court has also said that as a realistic matter, courts should protect some false speech in order to provide “breathing space” for, or to avoid inhibiting, good faith speech on important matters.

This Article argues, however, that lies can actually have substantial, direct, and independent free speech value. Such lies can, under given circumstances, uniquely promote one or more of the standard reasons for protecting speech.

While this may initially seem paradoxical, the Article considers in particular two kinds of extreme cases: first, lying in the context of fugitive slave cases, where the lie is told either by the fugitive slave, or by someone assisting the fugitive slave; and second, lying, especially to officials, by threatened Jews, or by others seeking to protect them, in Nazi-controlled territories. The alternatives to lying in such cases are carefully considered as well.

The Article then considers less extreme cases, and concludes that in particular circumstances, lying, on any reasonable definition, may distinctively promote any or all of the standard free speech values. Whether a particular lie, or kind of lie, should ultimately be constitutionally protected will of course depend upon an appropriate judicial free speech test.

Suggested Citation

Wright, R. George, Lying and Freedom of Speech (March 9, 2011). Utah Law Review 2011 p. 1131, Available at SSRN: https://ssrn.com/abstract=1782215 or http://dx.doi.org/10.2139/ssrn.1782215

R. George Wright (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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