Is Lying Protected by the First Amendment?
Disinformation can erode trust in democratic institutions and harm national security, public health and our sense of community. But does that mean the government can — or should — punish falsehoods?
Former President Trump was indicted on charges related to his claims about the 2020 election. He has raised the First Amendment free speech right to make these claims as protected political speech, which is at the heart of the First Amendment. Prosecutors are likely to respond that these claims are lies that are not protected by the First Amendment because his words themselves are criminal in nature, that they are evidence of fraud and conspiracy to commit fraud — going beyond words into actions.
Does intentionally lying (as opposed to sincerely believing in some provably false statements) disqualify someone’s speech from First Amendment protection? Or is there some room under the First Amendment for lying to allow people to discuss political issues?
Is lying protected by the First Amendment, or can the government punish lying?
So, is lying protected by the First Amendment? Short answer: Sometimes lies are not protected by the First Amendment. In other cases, they may be considered free speech.
When is lying protected by the First Amendment?
The First Amendment provides strong protection for speech, even in situations where a person is not telling the truth — intentionally or unintentionally.
People may often point to defamation as an example of when lying is not protected by the First Amendment. But the legal definition of defamation is narrow and hard to meet. It goes way beyond telling a lie about someone else.
Each state and the District of Columbia have laws defining defamation that allow anyone who feels they have been defamed to bring a civil lawsuit seeking compensation for damage to their reputation. These laws are permissible under the First Amendment if drafted in a way that meets the high bar set by the Supreme Court in a series of cases, starting with New York Times Co. v. Sullivan.
In that case, the court held that even false statements about public officials or figures are protected, as long as the speaker doesn’t know that they are false or take reckless disregard for their truth or falsehood. In addition to this "actual malice" standard, to be defamation, the lie in question must:
- Harm the subject’s reputation.
- Be "material or substantial" (not minor).
- Be a provable assertion of fact (not an opinion).
- Identify the person bringing the lawsuit.
- Be published, i.e., heard by someone other than the speaker and the subject of the statement.
- Cause actual economic damage.
The Supreme Court has also said that lying about your military service is protected. In the 2012 case of United States v. Alvarez, the court said that a federal law that criminalized lying about receiving military medals violated the First Amendment. Then-Justice Anthony Kennedy explained that in addition to identifying a specific — not general — harm from the speech, the government must demonstrate that the restriction is necessary to prevent that harm, and this law did not meet those standards.
Lying about the government is specifically protected.
In the Freedom Forum’s 2021 "Where America Stands" survey, 72% of approximately 3,000 respondents agreed that "Political ads that misrepresent the truth should be outlawed."
But in New York Times Co. v. Sullivan, the court held that deliberate lies about the government are fully protected. That’s because the government can counter falsehoods about it with its own speech. And it’s likely that other members of the public will come to the government’s defense, either for outright political reasons or simply to ensure the stability of the country, which also continues an open conversation on matters of public concern.
When is lying not protected by the First Amendment?
Despite its strong protection for speech, the First Amendment does not provide absolute protection for everything you say. There are exceptions for some clearly defined "low value" categories of speech, some of which involve lying.
One example is committing fraud or false advertising. These unprotected lies induce others to misspend their hard-earned money.
Lying under oath during an official government proceeding, or perjury, is also not protected. These lies come after you have sworn to tell the truth in the sanctity of a courtroom or in filing a false report to police, like the hoaxes of actor Jussie Smollett and Carlee Russell, an Alabama woman who staged her own kidnapping. In these cases, decision-makers rely on your word to spend resources on investigations, determine guilt or innocence, make judgments or pass laws.
Plagiarism is effectively stealing someone’s creative (and perhaps commercial) expression and falsely claiming it as your own. It is not protected by the First Amendment.
Why is lying protected by the First Amendment in some cases?
It can be complex, but lying is not automatically excluded from First Amendment protection.
Shouting "Fire!" in a crowded theater is always trotted out as an example of why the First Amendment isn’t absolute. But the people who cite this are either lying or wrong when they use it. The actual quote comes from Justice Oliver Wendell Holmes who wrote, "The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic."
There is a difference between protecting someone who shouts "Fire!" to avoid danger when there is a fire and punishing someone who falsely shouts that word to intentionally put people in danger when none exists. In the second example, the government restricts the lie to prevent injury. This is to ensure we avoid punishing any speech that may have value.
Yes, lies can have value. It is often difficult to decide truth versus falsity, especially in the moment. Theories that are later disproven can be — and often are — labeled as "lies." But without the ability to challenge otherwise accepted viewpoints, our understanding of the world around us — and of ourselves — might never change. We have a right to learn and to get things wrong in the process.
Most important, if lies were always illegal, we would never be able to hold our government accountable — one of the key reasons the First Amendment is in the Bill of Rights. We force the government to tread lightly around protected speech so we can work things out for ourselves. The First Amendment envisions public discussion without government intervention unless and until a statement might cause direct harm to specific people that cannot be countered quickly through public debate.
The First Amendment demands patience before government intervention, "putting the brakes" on government determining the outcome of truth versus falsity. This is, as Justice William Brennan explained in New York Times Co. v. Sullivan, to provide the "breathing space" necessary for free speech to survive.
Simply put: The more people who are affected by a false statement, the more incentive and ability there is to counter it. When it’s left to the people to decide, the space between government participating in that debate and government declaring a winner of that debate remains as large as possible.
Kevin Goldberg is the First Amendment specialist for the Freedom Forum. He can be reached at [email protected].