High Value Lies, Ugly Truths, and the First Amendment (Alan Chen & Justin Marceau)
Lying has a complicated relationship with the First Amendment. It is beyond question that some lies-such as perjury and fraud-are simply not covered by the Constitution's free speech clause. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. Until very recently, however, it has been taken for granted in Supreme Court doctrine and academic writing that any constitutional protection for lies is purely prophylactic–it provides protection to the truth-speaker by also incidentally protecting the liar. What remains unresolved is whether other rationales might also justify First Amendment protection for lies.
Through this Article, Professors Justin Marceau and Alan Chen argue that some lies––what they call high value lies––have instrumental value that advances the goals underlying freedom of speech. The Article develops a trifurcated doctrinal taxonomy of constitutional protection for lies. Some misrepresentations receive no protection at all; some false statements are protected only because the protection of the liar ensures that the speech of the truthful person is not indirectly chilled, and, in their view, some lies must be protected for their own sake. This framework is descriptively novel and doctrinally important because Professors Marceau and Chen provide the first comprehensive look at the wide range of lies that may raise First Amendment issues in the wake of United States v. Alvarez, and analyze the proper level of constitutional scrutiny applicable to regulations of each type of lie. Beyond doctrine, they advance the thesis that constitutional protection for high value lies is firmly rooted in First Amendment theory because false speech can paradoxically facilitate or produce truth.