William & Mary Bill of Rights Journal Volume 16 (2007-2008) Issue 4 Article 10 April 2008 Falsity, Insincerity, and the Freedom of Expression Mark Spottswood Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Constitutional Law Commons, and the First Amendment Commons Repository Citation Mark Spottswood, Falsity, Insincerity, and the Freedom of Expression, 16 Wm. & Mary Bill Rts. J. 1203 (2008), https://scholarship.law.wm.edu/wmborj/vol16/iss4/10 Copyright c 2008 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj FALSITY, INSINCERITY, AND THE FREEDOM OF EXPRESSION Mark Spottswood* ABSTRACT Three decades ago, the Supreme Court announced that false statements of fact are devoid of constitutional value, without providing either a reasoned explanation for that principle or any supporting citations. This assertion has become one of the most frequently repeated dogmas of First Amendment law and theory, endlessly repeated and never challenged. Disturbingly, this idea has provided the theoretic foundation for a regime in which some speakers can be penalized for even honestly- believed factual errors. Even worse, this dogma is flat wrong. False statements often have value in themselves, and we should protect them even in some situations where we are not concerned with chilling truthful speech. When false statements are spoken sincerely, they are a useful and necessary part of argumentation, which is a powerful means of increasing human knowledge. When confronted with honest errors, proponents of competing beliefs have a natural impulse to contest them; in so doing, they unearth and disseminate facts that deepen the under- standing of both speakers and listeners. False speech, therefore, is valuable because it is an essential part of a larger system that works to increase society's knowledge. The benefits of false speech evaporate, however, when we move from honest errors to deliberate lies. Insincere speech tends to corrode, rather than further, argument. It is associated with a number of practices that deprive argument of its knowledge-promoting features. We may sometimes wish to protect insincere speech to avoid chilling truthful speech, but we should always do so cautiously. After providing a summary of the existing law and scholarship concerning false speech, this Article analyzes the harms and benefits of false, insincere, and misleading speech. This question will be approached from the perspective of social veritistic epistemology, which will permit a detailed assessment of the consequences of various types of deceptive speech for the state of societal knowledge. I will conclude by suggesting some ways in which existing First Amendment doctrine * Law Clerk to the Honorable Rebecca R. Pallmeyer, United States District Court for the Northern District of Illinois. The author wishes to thank Professor Martin Redish for his invaluable guidance and advice in the preparation of this Article; thanks also to Micah Schwartzmann for his insight on the concept of sincerity. © 2008 by the Author. Permission is hereby granted to duplicate this Article for scholarly or teaching purposes, including permission to reproduce multiple copoies or post on the Internet for classroom use, subject to the inclusion of this copyright notice, the title, and the name of the author. 1203 1204 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 16:1203 could be reformed in order to better account for the constitutional value of false speech. Ultimately, it is insincerity, not falsity, which has "no essential part of any exposition of ideas," and is of "slight social value as a step to truth." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Even a false statement may be deemed to make a valuable contribution to public debate, since it brings about "the clearer perception and livelier impression of truth, produced by its collision with error." -New York Times Co. v. Sullivan (quoting J.S. Mill) (1964)' [T]here is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust and wide-open" debate on public issues. -- Gertz v. Robert Welch, Inc. (1974)2 INTRODUCTION The two quotations above illustrate the confusion of the Supreme Court when it has applied the Speech and Press Clauses3 to speech that is false, insincere, or misleading. Sometimes the Court is willing to give quite strong protections to speech that is false, as in the public official defamation context,4 while in other contexts, such as restrictions on commercial speech, the Court has suggested that it would not protect even innocent errors in public discourse.5 The most persistent theme of the Court's decisions in this area, however, is a reluctance to proceed beyond such superficial pronouncements and explain why the First Amendment should, or should not, value speech that is untrue or insincere. The confusion in the Court's treatment is mirrored in the scattered scholarship on this issue. Although John Stuart Mill devoted considerable attention to the relation- ship between a free speech principle and the social value of false speech,6 other scholars noted the defects in his treatment almost immediately, especially the fact that he examined examples of false speech in religious and political contexts to the exclusion of examining discourse about "facts."7 376 U.S. 254, 279 n.19 (1964) (quoting JOHN STUART MILL, On Liberty, in ON LIIERTY AND OTHER WRrriNGs 5, 20 (Stefan Collini ed., Cambridge Univ. Press 1989)). 2 418 U.S. 323, 340 (1974) (citations omitted). 3 U.S. CONST. amend. I. 4 See, e.g., Sullivan, 376 U.S. at 271-86. ' See, e.g., Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U.S. 748 (1976). 6 See MILL, supra note 1, at 19-55. 7 See JAMEs FIT7JAMES STEPHEN, LIBERTY, EQUALITY, FRATERNrrY 74-77 (R.J. White ed., Cambridge Univ. Press 1967) (2d ed. 1874); see also discussion infra Part I.B.1. 2008] FALSITY, INSINCERITY, AND THE FREEDOM OF EXPRESSION 1205 Strikingly, Mill's project was never taken up where he left off; rather, modem scholarly treatments of the relationship between free expression and falsity have tended to whistle their way past important assumptions about the values of falsity and insincerity in public discourse, rarely spending any time trying to justify or assess the degree to which falsity in speech is detrimental to free speech values.8 As a result, both modem case law and scholarship on the relationship between free speech, falsity, and insincerity tend to be "casual, almost offhand," as Justice Douglas once characterized the arbitrary decision to exclude all commercial speech from First Amendment protection. 9 Thus, it is quite possible that these shallow 0 treatments, like the old rule on commercial speech, "[will] not survive[] reflection."' It is the purpose of this Article to analyze the degree to which this might be the case. This Article will, for the first time, undertake a detailed analysis of the harms and benefits that can flow from the various types of deceptive speech, including false speech (speech which does not accurately describe the world), insincere speech (speech which misrepresents a speaker's belief), and misleading speech (speech which may be literally true but which carries false or insincere implications). In this analysis, I will employ the tools of social veritistic epistemology" in order to assess when these types of speech are likely to increase the total number of false beliefs held by speakers and listeners. This epistemological approach has the capacity to illuminate questions that have remained obscure for some time. The thesis of this Article is that speech that is false but sincerely believed by its utterer is generally protected by the First Amendment because such speech generally promotes the growth of social knowledge. Insincere speech, however, is excluded from First Amendment protection in almost all cases because it tends to inhibit, rather than promote, the increase of knowledge. Finally, misleading speech receives constitu- tional protection to the degree that its implied meanings represent what a speaker believes, whether or not those beliefs are false; it is only the insincere use of implied meanings that excludes speech from protection. However, this type of exception should only exist when the implied meaning of the speech is insincere, not merely when inferences might be drawn from a statement that would not be believed by the speaker. The common theory tying all of these claims together is that the practice of good-faith argumentation by proponents of competing views is generally more conducive to the increase of knowledge than a regime that suppresses views that are probably false (when certain supporting conditions are met).' 2 In other words, the 8 See discussion infra Parts I.B.2-3. 9 Cammarano v. United States, 358 U.S. 498, 514 (1959) (Douglas, J., concurring). 10 Id. " See ALvIN I. GOLDMAN, KNOWLEDGE IN A SocLAL WORLD 4-5 (1999) (defining and discussing this term). 12 See discussion infra Part II.C (discussing the Truth-in-Evidence Principle and its relationship with defeater argumentation). 1206 WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 16:1203 best way to arrive at true judgments is to listen to argument by proponents of opposing beliefs, rather than making an initial judgment on the validity of the question and suppressing contrary viewpoints. To the degree we believe that the First Amendment is designed to promote the growth of human knowledge, 3 such considerations point towards recognizing constitutional value in all sincere speech, whether or not it is false. But even if we reject such a view, an assessment of the degree to which false speech can advance our knowledge is critical if we wish to accurately compare the harm of protecting false speech with the harm of prohibiting it.