But there are “exceptions” to our right to lie. Freedom of speech does NOT protect perjury, which is telling a lie under oath, before Congress, or in a legal contract. Freedom of speech does NOT protect slander or libel or defamation which are lies about another person that are deliberately malicious and are spoken or written with a clear intent to damage another person, his reputation or his finances (but public figures are not protected by libel and slander laws, an interesting exception that president Trump wants to undo – for himself). Freedom of speech does NOT protect shouting fire in a crowded theater. Or threats or incitements to violence. Or conspiracy to commit a crime. Or obscenity. Or plagiarism. All President Trump’s lies are legal as he is not under oath. What a list, and there are a few more.
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| Liar Liar Pants on Fire! |
Many of us feel that our Constitutional RIGHTS are absolutes, when in reality every one of them has (sensible) exceptions (see above discussion). But that is not why I am bringing up the subject. I would like to add some more limits to our precious freedom of speech, our freedom to lie. If you or I lie, we have that right and I will defend that right to the death. But when our trusted news sources (NOT The National Enquirer, NOT The Drudge Report, NOT Comedy Central, but rather The NY Times, The Wall Street Journal, The Washington Post, USA Today, network news, Fox News, CNN), when they lie to us, our country suffers from its citizens being misinformed, which has all sorts of unhappy (but predictable) consequences. When a corporation calls itself a news organization, it needs to be held to account for what it says or prints, it needs to be held to account for telling the truth. Our Founding Fathers did not intend for the press to be free to lie to the public (THIS is a lie!). But who should determine what corporations are news organizations? Why, let it be the corporations themselves! If Drudge claims to be a news organization, it ought to be open to litigation when it lies. Same for The New York Times. Those that don’t claim to be news organizations are admitting to their followers that they are not dependable sources of news, sources of truth. And they are free to lie, the public be damned!
I also want every public servant – when talking to the public – to be held to the same standard. People believe Donald Trump, even when he lies (does Trump ever not lie?). I want to live in a world where the President, or a senator, or a Congressman, or a governor, or a mayor, etc., must pay for lying to us, especially when he gets away with it. This is not a vendetta against the pathological liar President Trump; I want the same for Bernie Sanders when he lies.
Finally, let's not forget corporations – that by right are not natural persons with the Constitutional right to lie – corporations may not lie either. We citizens have a right to expect the truth in a product's label and in its advertising.
Finally, let's not forget corporations – that by right are not natural persons with the Constitutional right to lie – corporations may not lie either. We citizens have a right to expect the truth in a product's label and in its advertising.
Grade the lies (1 – 5 Pinocchios). Count the lies. After a while, the lying news organization ought to lose its right to do business; after a while, a lying politician ought to be removed from office, and face imprisonment, after a while a lying corporation ought to have its charter to do business revoked.
Who will accuse them? What will the penalties be? These are details, important ones. I am planting a seed; please help it grow!
Addendum: Friday, 05/29/2020
I've been thinking about my cop-out ending: YOU think about it!
I mean these limitations on the Right to Lie to be taken seriously. Therefore, I advocate that such "illegal lying" laws be aimed at individuals – never at artificial entities – and that they have criminal penalties in addition to civil ones.
Who should have the power to accuse? Me, you? Of course not. The "accused" are significant players in our society, and one pissed off individual ought not to have the power to put him on trial for a real crime. Political players have a constituency: the voters in their district (where district may be a state or even a nation). News organizations have a reach (how large is their broadcast area?). Manufacturers have a market (local, regional, national).
Let's say a really pissed off individual wants to take down a politician, a news organization, or a corporation. He initiates the process by drawing up a petition with a clear list of complaints of illegal lying, and then by gathering signatures from within his accused's constituency. He needs to be able to collect signatures from a certain percentage – a critical mass – of that constituency to go forward with a court action, say 5 or 10%. That is a huge number of people supporting an action that may ruin a man's life, but enough to be taken seriously. An average Congressional district has a registered voting population of about 350,000. Gathering 17,500 - 35,000 signatures exclusively from that constituency a) will be a tough road to hoe, and b) represents a LOT of pissed off constituents willing to go on record as willing to ruin another man's life.
I believe that there should be degrees of illegal lying, just like murder, 1st to 3rd degrees. Perhaps third degree lying ought to result in a censure or loss of job, second degree lying loss of job and a financial penalty, and first degree lying would land a man in prison. Should the trials be trial by jury or trial by judge? I don't know; maybe the lead petitioners and their lawyers should figure that out.
Lest anyone imagine this would lead to a free-for-all of Democrats going after Republicans, and Republicans going after Democrats, and Democrats going after Fox News and Republicans going after the New York Times, I want you to be reassured there are safeguards to my crazy idea. First, everyone who signs the petition will have to pay for their own lawyers upfront (we can't ask a public servant prosecutor to add these cases to his caseload). Then, whichever side loses the case will be responsible for Court costs and legal fees for both sides. If the accusers prevail, they may come out even financially (the big win is psychic); if they lose they will lose hard (psychically and financially). Needless to say, rules will have to be in place to make these actions fair and possible: the size of a legal team will be proscribed by law, the fees each lawyer may demand will be proscribed by law, and the duration of the trial will be limited by law.
Most Americans are sick of their politicians, sick of news channels lying to them, and scared shitless of corporations that might lie about a product not containing an allergen that might cause a death in the family. I think that they need to be heard. These kinds of laws would be very much like recall elections, and there are few things more empowering to a democracy than its right to recall one of its powerful players for cause.
I invite your comments.
Addendum: Tuesday, 06/09/2020
I wrote my "definitive" piece on freedom of speech back in 2014. I'd like to add some important caveats to it, but who's going to look at a piece written so long ago? So, I'm attaching it here.
The classic example of freedom of speech is commandeering a soapbox in a public park for a while and having your say. No megaphones to force everyone in the park to hear, and reasonable limits on how long the soapbox is yours.
But what rights do the folks in the park have? They have the right to listen or not, they don't have to stick around to listen to you. If they do stick around, maybe they should have the right to question you at some point during or after you have had your say. But it is YOU who is exercising his freedom of speech. Get where I'm going? Hecklers think they have a right to THEIR free speech. But their heckling sabotages YOUR right to speak. So, no, hecklers are exercising their license to sabotage your right to speak. There is no right to heckle that is protected speech under the First Amendment.
What if the assembled crowd is unanimous about not wanting a speaker to speak? If they unanimously heckle the speaker, surely they.... No, they are just a quasi-organized bunch of hecklers sabotaging another's right to speak.
Does this remind you of any real-world situations? Like protesting who a school's administration – or a club on campus – invites to speak? I daresay it is your right to protest that speech ... beforehand. But maybe the school's administration will have the balls to protect the free speech rights of an invited guest speaker, and have the balls to remove (and perhaps punish) hecklers even if they constitute a majority of the audience. Freedom of speech means nothing if some can't speak. Even if you think your freedom of speech should trump someone who is formally invited to make a speech! Hecklers and mobs do not really believe in free speech, except for themselves.
Addendum: Saturday, 11/20/2021
On November 16th, CATO presented an online discussion entitled "A Right to Lie? Presidents, Other Liars, and the First Amendment." Here it is.
Addendum: Sunday, 09/09/2023
I just watched, for the first time, an old movie that few have heard of called Absence of Malice, a 1981 film starring Paul Newman as Michael Gallagher, Sally Field as Megan Carter, directed and produced by Sydney Pollack, with original screenplay by Kurt Luedtke. Reporter Carter learns that businessman Gallagher whose business depends upon Union labor is being investigated for the murder of a beloved union leader. Before printing the story, Carter seeks counsel from the paper's lawyer and he concludes that as the publication of the story would be without malice, "we may say whatever we want about Mr. Gallagher and he is powerless to do us harm." They print the story, the union men who were Gallagher's labor force believe the worst and walk off, effectively putting an end to Gallagher's business, and the rest of the story ... is about getting even, absent of malice.
The reason I am writing about this movie is the newspaper knew what the facts were and they also knew that printing the facts – with no presumption of guilt – would cause an innocent man irreparable harm, and that there would be nothing he could do about it. There oughta be a law!
Borrow the movie from Netflix on my say-so. The story is brilliant and thought-provoking, and it is well worth your time. Say Ben Paine sent you!
Addendum: Thursday, 02/29/2024
More than four years later and what have we learned? What will it take for young fools with high IQs to realize that freedom of speech does not cover heckling or preventing another's speech. Whether speech is protected from government prohibition (aka censorship) or private interference (protests at a university) is a quibble for some. If one person or another has been formally invited to speak, it is ONLY that person who has freedom of speech; those in the audience have the freedom to listen, not to speak or heckle, at least not until questions from the audience are formally called for. If this were not so, freedom of speech would always belong to the loudest, the strongest, the most heavily armed or the best connected. In other words, freedom of speech would belong only to those with power and influence, hardly a freedom that we the people should embrace. It is the "job" of students to learn from their instructors, and it is not the job of an instructor to be lectured by his students.
Addendum: Monday, 04/15/2024
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