From the abstract for Alan K. Chen & Justin F. Marceau, Developing a Taxonomy of Lies Under the First Amendment, 89 U Colorado Law Review 655 (2018):
In previous work, we argued that the First Amendment limits the power of government to regulate lies that, paradoxically, promote the democracy and truth-finding functions of free speech. See Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 VAND. L. REV. 1435 (2015). In doing so, we claimed that the Supreme Court had previously protected lies solely to avoid chilling truthful speech, and not because they might have intrinsic value in our constitutional democracy. In that work, we did not fully address a related question – under what circumstances are lies subject to valid government regulation because they cause material harm or yield material gains to the speaker. What harms and benefits count to disqualify a lie from first Amendment coverage? Contemporary controversies about the role of falsehoods in our democracy, ranging from investigative deceptions to facilitate undercover investigations by activists on both the left and the right, to a Presidential campaign filled with claims that both major party candidates were liars, to an apparent epidemic of fake news stories on social media, suggest that there exists some urgency to further define the contours of the First Amendment’s protection of lies.
The Supreme Court’s fractured decision in United States v. Alvarez offers some clues, but does not elaborate sufficiently to explain the boundaries of constitutional protection for lies. For instance, Justice Kennedy’s plurality opinion distinguished laws that regulate lies because those falsehoods cause some form of “legally cognizable harm” from laws that regulate lies without reference to such harms. In addition, Justice Kennedy notes that one of the flaws of the Stolen Valor Act was that it did not limit criminal liability to those who lied about military honors to gain a “material advantage.” Similarly, in his concurring opinion, Justice Breyer observed that the saving feature of most statutory and common law provisions prohibiting lies was that they typically require “proof of injury.” But these limiting principles are stated at too great a level of generality to be useful. All lies cause some harm to the listener or produce some benefit to the speaker. The harm or benefit might often be largely abstract, symbolic, or psychological, but there is still a harm or a benefit. Indeed, all of the Court’s opinions in Alvarez acknowledge there is some harm associated with lies told about earning military honors, including a general dilution of the prestige associated with such honors, and there was some benefit to Alvarez in telling the lie to his local, political constituents. Yet six of the current eight Justices agreed that the lie in question fell within the protections of the First Amendment.
In this article, we explore what the Alvarez Court did not. We set out some general parameters to guide courts in determining whether the harms or gains resulting from a particular lie are sufficiently material to justify excluding the lie from First Amendment coverage. Some cases are easy even under existing doctrine, before and after Alvarez. Perpetrating a fraud to persuade a person to give away money unequivocally causes both harm to the victim and material gain to the speaker, both of which provide a sufficient state interest to allow punishment of the lie. But do other types of more intangible benefits to the liar count as material gains under Alvarez? A lie might bring a feeling of satisfaction from having fooled another. What if lying makes one feel better about her place in the world? What if it enhances one’s political agenda, providing benefits to one’s psyche and self-esteem? May the state proscribe a lie that leads to information used in an award-winning piece of investigative journalism because it yielded a material gain to both author and publication? What about a lie that generates favorable publicity, which then leads to more donations to an advocacy group with which the liar is affiliated? And in the context of political campaigns, what about a lie designed to get a voter to favor a particular candidate or ballot measure? For that matter, should lies on political topics receive more or less protection because of the context? Does the motive for the lie matter? Is a lie designed to produce truth within the ambit of free speech doctrine even if it causes harm or produces benefits to the liar?
Ultimately, we argue that many lies will be protected even though they will produce some benefit to the speaker and some harm to the listener. Lies that are consistent with the values and goals of free speech will receive the most protection. Some benefit-producing and harm-causing lies that are largely worthless, as with the lie in Alvarez, will also be protected. There may need to be a middle category of lies that receive some protection, but may be regulated as long as the state meets some form of intermediate scrutiny. And those lies that cause tangible harm or produce material benefits in contexts that are divorced from the underlying purposes of free speech theory will not be protected, and indeed not covered by the First Amendment at all.