Although the Supreme Court declared almost forty years ago that “there is no constitutional value in false statements of fact,” the Court in United States v Alvarez ruled that the First Amendment protects at least some -- and perhaps many -- intentional lies from government prohibition. In Alvarez, a divided Court struck down the Stolen Valor Act, a federal statute that made it a crime for any person to state falsely that he or she had received a military decoration or medal. In three separate opinions, all of the Justices agreed that the First Amendment permits the government to punish at least some lies, but no majority approach emerged for determining more specifically which lies can be prohibited consistent with the Constitution.
Is there a First Amendment right to lie? As is so often the case, the answer is “it depends.” People lie frequently and for a wide variety of reasons. Some lies are more morally and instrumentally troubling than others; some lies may even be morally or instrumentally valuable. Because some lies may have First Amendment value in their own right and because the regulation of many other lies threatens government overreaching or the chilling of valuable speech, we should presume that lies are fully protected by the First Amendment such that government generally may not regulate them unless it satisfies strict scrutiny. On the other hand, a category of lies about certain objectively verifiable facts within the speaker’s personal knowledge sufficiently frustrates First Amendment interests to justify their treatment as a “low value” category in which greater government regulation may be permitted to prevent certain harms. The great number and variety of lies thus undermine efforts to characterize all – or none – as fully protected by the First Amendment. This requires us to draw some uncomfortable distinctions. Justice Breyer’s approach in Alvarez does not relieve us of this discomfort, but instead challenges us to confront it by transparently grappling with the important competing interests at stake. This Article suggests we can better assess the potential harm of the sorts of lies targeted by the Stolen Valor Act when we understand them as lies about a speaker’s credentials that might cause significant second-party harms to listeners as well as third-party harms to the public trust on which certain important government processes rely. Even so, however, First Amendment interests in checking the government’s power to act as the ultimate arbiter of truth counsel that we take care when regulating such lies. The Article suggests that laws appropriately balance these competing concerns when they target lies that threaten second-party harms that take monetary or similarly tangible form, or lies that cause third-party harms when demonstrably material to high-stakes decisions in circumscribed settings.