Asked and Answered: You Do Have a Constitutional Right to Lie (sometimes)

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.

In a similar case (see also), involving another person, the Ninth Circuit Court of Appeals has found the Stolen Valor Act unconstitutional.

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 U.S. decides that all non-Christian religious texts are “lies,” and decides to criminalize them.

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