129 Harvard Law Review Forum 242 (2016)
17 Pages Posted: 10 Apr 2016
Date Written: 2016
I appreciate the opportunity to think further about lying and freedom of speech alongside Professor Leslie Kendrick, who legitimately presses me on a number of important issues. In particular, I’m grateful for the occasion to expand and clarify my position in response to three of her insightful and constructive criticisms: first, that I overestimate the fragility of our moral practices of trust, second, that I overvalue both sincere speech and free speech, and third, that given the high value I attribute to sincere speech, it is perplexing and perhaps revealing of a latent ambivalence about my methodology that I do not advocate for stronger, more comprehensive legal regulations on lying.
I start in Part I by describing the dilemma Kendrick poses for my argument against lying: namely either that it depends on empirically dubious premises and underestimates the resilience of our moral culture of trust in each other’s word, or that it normatively places inordinate value on the symbolic value of sincere speech. This second horn corresponds directly to her related criticism that I overvalue freedom of speech. In Part II, I clarify that my argument does not depend on the empirical predictions of which she is skeptical. Rather, my concerns about lying relate primarily to the way in which lies affect the rationality of testimonial trust. In Part III, I resist the characterization of my argument as a symbolic argument and explain why a commitment to preserve the rational reliability of testimonial practices escapes both horns of Kendrick’s dilemma. In Part IV, I respond to Kendrick’s complaint that I overvalue freedom of speech, and I argue against crafting exceptions to freedom of speech protections based on the repellant content contained in sincere speech or the unwelcome consequences that follow from its contemplation by audiences. In Part V, I address one concrete challenge Kendrick raises about how a moral theory intersects with law: if, as I maintain, lying threatens public values and should fall outside the scope of First Amendment protection, then shouldn’t it always be illegal?
Keywords: lying and freedom of speech, moral agency, reliability of testamonial practices
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