Liberty and the Right to Lie

Ordinary lying shouldn't, and can't, be illegal.

News of today's latest judicial atrocity comes to us from Politico:

In a major First Amendment decision Tuesday, the U.S. Court of Appeals for the 9th Circuit struck down a federal law making it a crime to falsely claim a military honor or decoration... Judge Milan Smith, writing for colleague Thomas Nelson, said the law went too far, even though many legal experts view deliberately false speech as unprotected by the Constitution[emphasis added]

So, to the ephemeral Constitutional "right" to privacy, "right" to murder your unborn child, and pending "right" to "marry" someone with whom you are inherently biologically and physically incompatible can be added a right to lie through your teeth.  Used-car dealers and politicians, rejoice!

Except that in this case, the judge is right, and the moralizers are wrong.  Listen to the judge's written opinion:

We have no doubt that society would be better off if Alvarez [the defendant, a proven liar] would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.  [emphasis added]

There are a whole host of things that are morally wrong and reprehensible to the point that all decent and reasonable people should avoid and look down upon then, and yet which government has no business policing.  Most Americans of all political stripes would agree that adultery is wrong, for example, but do any of us want the police breaking down bedroom doors and hauling adulterers off to prison or to be stoned to death?  No.

Not a crime in progress.

How about lying?  The judge's ruling shines a powerful spotlight on the problem: if lying is a crime, then the government gets to decide what is a lie.  Anyone with a pulse in the last couple years knows that our political arena is constantly criss-crossed with accusations of lying, from Rep. Joe Wilson vs Obama on down to the meanest pundit.

Do we really want the government to be in the business of deciding who is lying, as a general rule?  We've just seen an example of why that's a bad idea, when California Judge Walker ruled that six thousand years of societies arranging marriages around a man and a woman and considering homosexual relationships to be "something else" at the very best, was nothing more than a bigoted, biased, and bogus lie.  If that's the way the government distinguishes lies from truth, they have no business going there.

There are some situations where lying is and ought to be illegal: lying to the court, for example.  We call this perjury, obstruction of justice, and contempt of court.  You can also go to jail if you con money out of someone by lying to them; this is fraud by deception or some other form of consumer fraud.

In normal daily life, though, people lie all the time.  Alvarez claimed to have military honors he didn't earn; this makes him a dastardly scoundrel.  Unless he got money from someone under false pretenses, however, there is no crime here, and the judge's ruling is the right one.

There is such a thing as absolute truth - either Alvarez received the Medal of Honor, or he did not; either Obamacare will change the level of care you're allowed to get or it will not; either taxes will be raised or they will not.  Being a free people means that we get to make our own decisions about who is lying and who is telling the truth and hopefully express them at the polls and elsewhere using our other rights of free speech and freedom of the press.

Just because we don't like something someone is doing - just because it's morally wrong, even - making moral failings into crimes generally only makes the situation worse.

That government is best which governs least.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Reader Comments
I agree with your conclusion. The court made the right decision and people should have the right to lie.

Why then, did you start out saying "latest judicial atrocity"? No atrocity. This was a win.
August 24, 2010 8:22 AM
This is a slight branch off from the right of protection from self incrimination. In reality, we don't take the 5th in situations where we are not in the court: we either disseminate or we tell a lie to avoid self incrimination. Criminalize lying and we are all guilty of some small infraction: a situation Big Brother would love to have us in. You will see anti-lying verbiage on many government documents these days: tax returns, government grants, loans, etc. As taxes become more and more repressive, more people "cheat", enter the black market, and, (gasp) of all things, lie. Go to any good dictatorship and lying is the normal, and often only way to survive. We are getting there.
August 24, 2010 10:32 AM
How true, lfon. It's a rhetorical technique called exaggeration for effect - or, in this case, an eye-grabbing lede that, like so much of politics today, is the exact opposite of the underlying reality.

Except that unlike other media, we actually do wind up revealing the underlying reality. :-)
August 24, 2010 3:32 PM
you speak of "rights" as though they were government granted sanctions: since when is the decision between a woman and her doctor the government's business, let alone any man who knows her not?
since when is the private arrangements between citizens subject to the tyranny of the majority, as in the Calif. Prop 8?
Either you are for Liberty, or you demand that citizens behavior, however moral, be subject to the scrutiny of the state and the irrational fear of those who claim allegiance.
August 25, 2010 10:53 PM
@moxy - A decision that truly is just between a woman and her doctor is none of government's business. Like all pro-aborts, though, you totally disregard the presence of the third party being murdered: the unborn human fetus.

Likewise with homosexuality - the private actions of consenting adults is no business of government or anyone else. The problem is that homosexual couples are not satisfied merely to do as they see fit and be left alone; the issue behind Prop 8 was their desire to force government and everyone else to affirm, accept, and solemnize their perversion. If it was just about private actions between two people nobody much would care and it wouldn't be a political issue.
August 26, 2010 12:25 PM
To Moxy,
I too believe in abortion, but I believe the mother and the father should have the right to abort difficult children up to the age of 18, when the government then has a more compelling right, the right to protect the individual for the purpose of collecting taxes.
At what age do you believe children should be protected from being killed by their parents? And please don't give me that old had about when they start breathing on their own. There is very little difference in brain activity, pain and suffering or dreaming before and after birth. So when do you think the child's right to life outweighs the parents rights to peace and quiet and not having their live ruined by an ill behaved kid kicking in the womb or throwing a temper tantrum on the kitchen floor? Please make your case for where the dividing line is. Mine is when the kid starts paying taxes.

By the way, my philosophy works wonders when explained to the kids. I have raised 11, and they all turned out good.
August 28, 2010 5:54 PM
Your view is not without historical precedent, but in the past, it required a bit more formality and was limited to offing sons:

If a man have a stubborn and rebellious son, which will not obey the voice of his father, or the voice of his mother, and that, when they have chastened him, will not hearken unto them: Then shall his father and his mother lay hold on him, and bring him out unto the elders of his city, and unto the gate of his place; And they shall say unto the elders of his city, This our son is stubborn and rebellious, he will not obey our voice; he is a glutton, and a drunkard. And all the men of his city shall stone him with stones, that he die: so shalt thou put evil away from among you; and all Israel shall hear, and fear. Deuteronomy 21:18-21

They didn't stone daughters because no one could afford to waste a uterus and after she was married, she became her husband's problem anyway.
August 28, 2010 7:33 PM
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