Eleanor Finch
The First Amendment protects free speech, even when it involves lying. However, there are some exceptions, such as lying under oath during an official government proceeding, or perjury, defamation, fraud, and plagiarism. The Supreme Court has recognised that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation.
| Characteristics | Values |
|---|---|
| Lying under oath during an official government proceeding | Perjury |
| Lying about someone else | Defamation |
| Lying to gain an unjustified benefit | Fraud |
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What You'll Learn
Lying under oath during an official government proceeding
The First Amendment provides strong protection for speech, even in situations where a person is not telling the truth, intentionally or unintentionally. However, there are a few narrow and formally recognised categories of unprotected speech, including perjury, defamation and fraud.
Defamation is when someone tells a lie about someone else, but the legal definition is narrow and hard to meet. It goes beyond simply telling a lie about someone. Plagiarism is also not protected by the First Amendment as it involves stealing someone's creative or commercial expression and falsely claiming it as your own.
The Supreme Court has recognised that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, which the First Amendment seeks to guarantee. Justice Thurgood Marshall wrote in the 1972 Supreme Court case Police Department of Chicago v. Mosley that "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content".
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Perjury
The First Amendment provides strong protection for speech, even in situations where a person is not telling the truth, intentionally or unintentionally. However, the Supreme Court has recognised that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation. Justice Anthony Kennedy wrote for the majority that "Absent from those few categories where the law allows content-based regulation of speech, is any general exception to the First Amendment for false statements".
The First Amendment does not protect all lies. While it may protect some lies as free speech, it does not protect perjury, defamation, or fraud. Defamation is when someone tells a lie about someone else, and fraud involves lying to gain an unjustified benefit. Perjury, defamation, and fraud are all examples of unprotected speech that involve lies.
The government must show something more than just a lie to criminalise falsehoods. This could include harm to others or an unjustified benefit to the liar. While there is no broad "constitutional right to lie", the government cannot punish lies just because they are false.
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Defamation
While defamation is not protected by the First Amendment, it is important to recognise that the line between free speech and defamation can be blurry. Determining whether a statement constitutes defamation requires a careful analysis of the specific facts and circumstances of each case.
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Fraud
The First Amendment protects free speech, even when that speech involves lying. However, this protection is not absolute and there are some exceptions. For example, lying under oath during an official government proceeding or perjury is not protected by the First Amendment. This is because perjury involves making false statements after swearing to tell the truth, which undermines the integrity of the legal system and can lead to wasted resources and incorrect decisions. Similarly, defamation, which involves making false statements that harm someone's reputation, is generally not protected by the First Amendment. While the legal definition of defamation is narrow and challenging to meet, it still falls outside the bounds of protected speech.
The Supreme Court has acknowledged that some false statements are inevitable in an open and vigorous expression of views, which the First Amendment seeks to guarantee. As a result, the Court has recognized that bans on specific lies are content-based restrictions on speech and has generally taken a neutral stance on the content of the speech it defends. This means that outside of a few narrow and formally recognized categories of unprotected speech, such as perjury, defamation, and fraud, the First Amendment does not differentiate between truthful and untruthful speech.
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Plagiarism
The First Amendment provides strong protection for speech, even in situations where a person is not telling the truth. However, this does not mean that all lies are protected by the First Amendment. The First Amendment is neutral regarding the content of the speech it defends. As Justice Thurgood Marshall wrote in the 1972 Supreme Court case *Police Department of Chicago v. Mosley*, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content".
However, this does not mean that all speech is protected. There are a few narrow and formally recognised categories of unprotected speech, such as incitement, obscenity, perjury, defamation, and fraud. These are content-based restrictions on speech. For example, lying under oath during an official government proceeding, or perjury, is not protected. In these cases, decision-makers rely on your word to spend resources on investigations, determine guilt or innocence, make judgments or pass laws.
The government must show something more, like harm to others or unjustified benefit to the liar, before it can criminalise falsehoods.
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Frequently asked questions
Yes, sometimes lies are protected by the First Amendment. The First Amendment provides strong protection for speech, even in situations where a person is not telling the truth.
Yes, there are some circumstances in which lies are not protected by the First Amendment. For example, lying under oath during an official government proceeding, or perjury, is not protected. Defamation is also an example of when lying is not protected by the First Amendment, although the legal definition of defamation is narrow and hard to meet.
Defamation is defined as a false statement about another person that harms their reputation. The legal definition of defamation is narrow and hard to meet, and it goes way beyond simply telling a lie about someone else.
Yes, in addition to certain types of lies, other forms of unprotected speech include incitement and obscenity.
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