February 22, 2012
The New York Times has the Reuters report on today’s Supreme Court Argument.
From the story:
Justice Ruth Bader Ginsburg questioned whether a law could be adopted covering other false statements, such as denying that the Nazi Holocaust ever occurred. [Solicitor general] Verrilli [who argued for the government] answered that a law seeking to regulate that would have problems.
Of course, it is illegal in several European countries to deny the historical fact of the Holocaust. I have always taken for granted that such a law would be unconstitutional here. Verrilli agrees. Because we value free speech so highly, we (unlike the French or Germans, say) let people make all kinds of outrageous false claims about historical events without criminal liability attaching. We also are much more friendly to defamation defendants than Europeans. Criminalizing telling as specific category of lie is contrary to America’s tradition of vigorous protection of free speech. Republican presidential candidates have been telling us that the Obama administration, which defended this statute, is trying to turn the United States into Europe. I don’t think that this is what they have in mind, however.
February 18, 2012
An Op-Ed in today’s Washington Post. Like me, he’s against it on First Amendment grounds.
If the government can criminalize lies about medals, it can criminalize lies about other subjects.
Once we criminalize lies, someone must determine what is a lie and what is harmless embellishment.
After all, with the power to punish a lie comes the power to define the truth — a risky occupation for any government.
The First Amendment protects free speech, not just truthful speech. It exists to give a certain breathing room to citizens to avoid the chilling effect of the threat of prosecution. Free speech is its own disinfectant. It tends to expose lies and isolate liars. But it means that we often protect speech that has little value in its own right. We are really not protecting the right of Xavier Alvarez to tell lies. We are protecting the right of everyone to speak, even when they may be called liars.
This seems self-evident to me, but obviously not to everyone. It’s interesting to see the comments on Prof. Turley’s article — supporting the statute is seen as conservative, and its opponents are seen as liberals (and as is usual on the internet, are called names). Again, I thought that conservatives were supposed to favor reducing the amount of government intrusion in citizen’s lives. The exception seems to be for criminal sanctions — the most severe form of government intrusion — there they tend to favor more regulation, not less.