by Matt Barr

Does the First Amendment protect lies?

The Ninth Circuit's opinion in Fields v. Palmdale School Dist. has received wide bloggy activity this weekend, such as here and here and here, and with good reason: Its finding that (among other things) there is no fundamental constitutional right of parents "to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs" is a hearty No Shit, Sherlock moment for America's Funniest Appeals Court, while its reasoning demonstrates fairly conclusively that all anyone slinging around "the Fourteenth Amendment's Substantive Due Process Clause" (the opinion really says that, capital S and all) is doing is deciding whether it agrees with the policy choice at issue or not.

But I find that court's opinion in Chaker v. Crogan to be far more interesting. The court reversed a District Court ruling denying Chaker's petition for a writ of habeas corpus. Chaker was convicted under a California law that makes it a crime to file a false complaint against a police officer. The Ninth Circuit found that law to violate the First Amendment and ordered the writ issued.

Without getting into the down and dirty of the opinion, the thrust is that the court said the California law at issue impermissibly discriminated on the basis of the speaker's viewpoint, contra R.A.V. v. St. Paul, Mr. Justice Scalia's landmark "hate speech" opinion. In that case, Scalia had written that a Minnesota statute that criminalized expressive conduct that aroused anger, hatred or resentment on the basis of race was unconstitutional because "[d]isplays containing abusive invective, no matter how vicious or severe, [were] permissible unless ... addressed to one of the specified disfavored topics."

The Ninth Circuit fit the California law into that hole and found that since the state did not also criminalize false statements in support of the police, the law unconstitutionally discriminated on the basis of viewpoint. It rejected, among other arguments, the contention that false complaints against police officers deflect manpower from actual crimes and misconduct.

While I probably would have gone along with that argument -- how do you file a complaint against somebody a necessary element of which is a lie in support of the police? -- the court's rejection of it led to a result with an interesting issue behind it. Should the First Amendment protect lies?

Start with the proposition (not at all universally accepted, but universally accepted among authors of this blog) that the point of the First Amendment is to ensure full and informed participation in the democratic process. Anyone who wants to persuade people to do something should have that opportunity. Lying itself defeats the purpose of the First Amendment under this formulation: If we want informed participation in public debate and the democratic process, lies should be outside the First Amendment.

I can see a situation where lies about Republican Senators were criminalized but lies about Democratic ones weren't would implicate the kinds of concerns we have a First Amendment for. More broadly than ensuring participation in the democratic process, the Bill of Rights is supposed to ensure a majority can't artificially perpetuate itself by wielding the power of the state against political opponents. And a law like my hypothetical one here would wander into territory where political expression against public figures enjoys greater protection than against you or me. I wonder if someone challenging a law against lies about Republican Senators wouldn't fare better under the Equal Protection Clause.

Prohibiting lies, at least where there is a public safety rationale for doing so, doesn't seem to me to run afoul of the First Amendment. It doesn't put the government in a position to evaluate the weight an opinion should be given, or put it in the business of censoring facts. The California law at issue here doesn't even give the police discretion whether to devote resources to a complaint or not, which might put it in a position to evaluate the importance of someone's speech or the weight his opinion should be given in the decision whether to investigate. The law is broken when someone files a complaint against the police -- which the police must, under state law, investigate -- and it turns out to be false.

Unless this question has been answered by the Supreme Court already -- I would think if it had been, one or the other party in Chaker v. Crogan would have raised the issue -- this would be an interesting basis on which to appeal.

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