What Is a Lie and Is It Constitutionally Protected?

I think that the three judge panel’s decision to recommend dismissal of ethics charges against Justice Michael Gableman is the right outcome. I doubt that we really want tribunals passing upon the truth and falsity of campaign speech – even for judges.

There were differing approaches taken by the panel judges. Judges Snyder and Deininger found that the Gableman campaign’s ad criticizing Louis Butler for “finding a loophole” for a convicted rapist who went on to offend again was literally true, nohwithstanding that “the loophole” did not result in Butler’s client’s release and he offended again only after serving his sentence.  It was, they believed, a misleading ad but true because each sentence in the ad, taken in isolation, was literally true. Although the Judicial Code also addresses true, but misleading statements, its admonition against such statements is only aspirational and cannot form the basis for discipline.

Judge Fine, on the other hand, wants to take the statement as a whole and that has substantial intuitive appeal.  We don’t, in common discourse,  isolate a message’s individual words, phrases and sentences to discern its meaning.

He goes on, however, to find that the Code’s prohibition on knowingly false statements to be unconstitutional. But that finding  seems itself to be a function of his willingness to apply the language of that Code in a more expansive way. 

Judge Fine concedes that demonstrably false statements are not constitutionally protected. But suggests, however, that the truth and falsity of political speech as nonjusticiable, i.e., not for judges to decide. (Indeed, he also seems to believe that the legislature could not pass upon the question either, saying that the election is the only forum in which truth and falsity can be assessed.)

I suppose that, in some metaphysical sense, there may be a distinction between constitutional protection of speech and the constitutional proscription of the examination of such speech by any arm of government, but, if there is, it is passingly small.  Constitutional protection of speech is some measure of freedom from state interference.

Indeed, Judge Fine seems to be saying that the problem is with the rule and not necessarily the idea of sanctioning the speech at issue here. Thus, he emphasizes that he is holding the rule prohibiting knowingly false statments to be facially unconstitutional.

He clearly regards the prohibiton of “false” statements to be vague, i.e., he wants more guidance for courts than a simple admonition against knowing falsity before permitting sanctions on political speech.

But what would that be? There is certainly no blanket First Amendment protection against the judicial assessment of the truth and falsity of political speech. In the defamation context, the Supreme Court has permitted the imposition of liability for false speech that is defamatory if it is made with knowledge, or in reckless disregard, of its truth and falsity. There are those who argue – and with good reason – that the assessment of the veracity of political speech should not go past the defamation context, but that’s not what Judge Fine says – at least not in so many words.

It may be that Judge Fine wants a more objective standard of truth and falsity than one in which a tribunal may interpret a statement to identify the false implication of a collection of literally true statements. If that’s so, then  doesn’t his his view elide into that of the majority? They read the rule strictly to require finding an explicit and literally false statement. Perhaps he would uphold a rule that required a finding that a discrete claim is literally false.

This Post Has 6 Comments

  1. Sean Samis

    I am still reading this decision, but a question occurs to me: is it a viable defense to fraud to parse up the allegedly fraudulent statements, claiming that individually the parts are true, and that implication or interpretation of the whole is not significant?

    Been awhile, I’ll have to look this up tonight . . . .

  2. Richard M. Esenberg


    It’s been awhile for me as well and I think one has to keep in mind what variety of “fraud” is at issue, but I think the answer is, in a general sense, “no.” Another analogy is the law of perjury which has some rather strict requirements for falsity.

  3. Mike McChrystal

    In response to your question, Sean, the Restatement (Second) of Torts sec. 529 provides that a “representation stating the truth as far as it goes but which the maker knows or believes to be materially misleading because of the failure to state additional or qualifying matter is a fraudulent misrepresentation.”

  4. Sean Samis

    The analogy to perjury is rather weak, there is no oath-taking involved. The better analogy is to tortious fraud or misleading advertising. It is not clear that the framers intended the first amendment to protect fraud.

  5. Mike McChrystal

    As the Court said in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), “erroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” For this reason, the Court expansively protected false and defamatory assertions, but it drew the line at a false statement uttered “with knowledge that it was false or with reckless disregard of whether it was false or not.”

  6. Sean Samis

    The record shows Gableman delayed the ad in question “while he sought to verify the accuracy of its contents” (in the Undisputed Facts) so these misrepresentations appear to have been done “with knowledge” of their falsity.

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