A while back, I posed a simple question: do you have a constitutional right to lie? I did this with knowledge that a federal appeals court would eventually answer it. The answer is, in some cases, “yes.” The question was in response to the Stolen Valor Act, a federal law which makes it a crime to knowingly lie about having received any military decoration. A man, who made a mini-career out of pretending to be a highly decorated U.S. Marine, was charged under that law.
I generally agree with the court here. While I should be clear that I find it absolutely abhorrent that anyone would go around lying about such things, I have serious problems about criminalizing such conduct, mostly on free speech grounds. While I have no problem with laws prohibiting lies which can actually harm people (fraud, for example), going to a bar and making up some story about being a decorated Marine, in order to pick up a girl, probably isn’t something in which the criminal justice system should involve itself.
The court even noted as much in its opinion: if the Act is
constitutional, then there would be no constitutional bar to criminalizing
lying about one’s height, weight, age, or financial status on Match.com or
Facebook, or falsely representing to one’s mother that one does not smoke,
drink alcoholic beverages, is a virgin, or has not exceeded the speed limit
while driving on the freeway. The sad fact is, most people lie about some
aspects of their lives from time to time. I find it interesting that a federal
appeals court was comfortable mentioning Facebook and Match.com without
explaining what they are. I guess it’s officially the future. But I digress.
The above quotation hits the nail right on the head: in a free society, some conduct which we find immoral or distasteful is going to be legal. The proper response is not to criminalize conduct which doesn’t actually harm anyone, but is despicable nonetheless; instead you should refuse to associate with (and publicly expose, when possible) people who engage in that conduct.
Now, this isn’t to say that all speech is constitutionally
protected, let alone all lies. There’s a reason why you don’t hear about too
many people challenging fraud laws as unconstitutional. And there’s a reason
for this; while fraud, boiled down to its essence, is nothing more than a lie,
the reasons behind, and the effects of, a fraudulent lie are different from
some of the other lies mentioned above.
Fraud is defined as a lie which is told to someone with the intent that they rely on the statement, with such reliance causing them harm. For example, if I offer to sell you a large diamond, for the standard going rate of such a diamond, and knowingly sell you a much less valuable imitation diamond instead, I’ve committed fraud, and you’ve suffered a direct financial injury. It’s well settled that I would have no constitutional defense in such a situation.
While it could be argued that all lies cause some form of moral or metaphysical harm, either to
the speaker or the listener, that’s not nearly enough to justify legislation on
the subject. As the court mentioned, everybody lies about certain aspects of
their lives, and while those lies may cause some
harm, it’s harm of a type which is almost impossible to quantify. How, after
all, do you create a punishment appropriate for causing hurt feelings? Are hurt
feelings even a legally cognizable injury? I doubt it.
According to the court’s opinion, the guy in this case made a habit of spinning extremely outlandish stories about his past, to the point that nothing he said had any credibility. To criminalize such speech sets a very dangerous precedent, I believe.
If we can criminalize one form of lie, which is admittedly
reprehensible, what’s to stop us from criminalizing other “lies” such as works
of fiction? And then there’s the big elephant in the room: religious texts.
Suppose that the Christian majority in the
What’s to stop the political party in power at any given moment from criminalizing the “lies” spread by other parties? I’m not a huge fan of slippery slope arguments, but history has shown us that governments generally like to push the limits of the power that’s given to them, and such hypothetical situations don’t seem all that outlandish, unless they’re nipped in the bud.
And in the end, it’s utterly pointless to criminalize most
forms of speech. Some people, like the defendant in this case, are apparently compulsive liars.
That’s unfortunate for them, and the people they lie to, but it’s possible that
they truly can’t help it. Furthermore, most people who have known a compulsive
liar for any amount of time figure it out pretty quickly, and learn to take
everything said by known compulsive liars with a grain of salt.
And, really, who hasn’t at least embellished the truth about themselves a bit in a social setting, especially after a couple drinks? Do we really want to set a precedent where we risk going to jail for something like that?
By: Rusty Shackleford