Ethics

Why are lies wrong? The Kantian answer sees lies as close cousins to coercion; they are a violation of individual autonomy and a demonstration of contempt. By contrast, the utilitarian answer is that lies are likely to lead to terrible consequences, sometimes because they obliterate trust, sometimes because they substitute the liar’s will for that of the chooser, who has much better information about the chooser’s welfare than does the liar. The utilitarian objection to paternalistic lies is akin to the utilitarian embrace of Mill’s Harm Principle. It is possible to see the Kantian view as a kind of moral heuristic, welcome on utilitarian grounds. The Kantian and utilitarian objections to lying have implications for the family, the workplace, advertising, commerce, and politics, and also for constitutional law.

Lies and Falsehoods

Falsehoods are all around us. They come from advertisers. They come from angry or vicious people, trying to destroy reputations. They come from people who are simply trying to attract eyeballs or “clicks.” They come from Russia, attempting to divide the citizens of other nations. They involve—and threaten—public health. We need new principles to orient our thinking about when falsehoods are protected as free speech. Governments should be able to restrict and punish lies and falsehoods that pose serious threats to public health and safety—or to democracy itself. Private institutions, such as Facebook and Twitter, have a great deal of room to stop the spread of lies and falsehoods. They should be doing more. Real people are being badly hurt by their inaction.

A Framework

To know when and whether falsehoods should be protected, we need to investigate four separate questions. (1) The State of Mind of the speaker. Was he lying? Was he reckless? Did he make an innocent mistake? (2) The Magnitude of the Harm. Did the falsehood hurt anyone? A lot? Or just a little? (3) The Probability of the Harm. Is it very likely to occur, or highly improbable? (4) The Timing of the Harm. Is it expected to occur tomorrow, or in ten years? Answers to these questions can provide a framework to help answer seemingly intractable questions, involving fraud, lies about one’s achievements, attacks on enemies, altered videos, and much more.

Harm

A false statement might create risks to public health and safety. It might endanger the operation of the criminal justice system. It might make it difficult to run the tax system. How far should lawmakers and regulators, concerned about truth, go beyond libel? In the modern era, a pervasive concern is the dissemination of falsehoods about actual or potential public officials. Importantly, they might be positive, as, for example, in a statement that a particular candidate served with great distinction in the military, competed in the Olympics, performed heroic actions, or invented some technology. It is important here to focus on the question of harm; if the harm is great enough, regulation should be acceptable. Public officials should have considerable power to regulate deepfakes and doctored videos. They are also entitled to act to protect public health and safety, certainly in the context of lies, and if innocent falsehoods create sufficiently serious risks, to control such falsehoods as well.

Your Good Name

Can people protect their reputations? What if someone is circulating vicious lies about them? The US Supreme Court has given broad protection to libelous statements, saying that it must do so in order to allow “breathing space” for free speech. That idea is a cornerstone of the law of free speech. But in the modern era, and in light of the potentially devastating effects of falsehoods on individual lives and democracy itself, constitutional law should be updated. People should be allowed to demand retractions when they have been libeled, and they should also be able to obtain at least a modest amount of compensation. Much more needs to be done to allow people to protect their good name.

Falsehoods Fly

Why do people believe falsehoods? One reason is “truth bias”; we tend to think that what we hear is true, even if we are explicitly told that it is not. Another reason is that falsehoods often trigger strong emotions, which can intensify their hold on us. Falsehoods also get a grip on people as a result of “cascades,” which occur when misinformation travels from one person to another, increasing the sense that many people think that it is true—which adds force to its credibility. We learn from others, even if what we learn is false. Self-interested people are exploiting that psychological fact every day.

Stolen Valor

In 2012, the US Supreme Court ruled, for the first time in its history, that lies and falsehoods are protected by the US Constitution. In the relevant case, a politician said that he had won the Congressional Medal of Honor, which was a palpable lie. Referring to the risks that would come from an Orwellian Ministry of Truth, the Court ruled that the government could not punish that lie. The Court was quite right to say that some false statements are protected by the Constitution, but its decision was wrong, even preposterous. A lie is worse than an innocent mistake, or even a negligent one, and if a politician says that he obtained a great honor, he imposes real harm on the public. The Court’s decision seems especially ill-considered in light of the nature and power of modern social media. It should not be read to say that falsehoods and lies are generally protected by the Constitution.

Truth

When free nations protect falsehoods, and even lies, they do so for identifiable reasons. Officials cannot always be trusted; they are fallible and possibly biased. They might be trying to protect their own power. Whenever you punish falsehoods, you deter people from saying things that are true. People can learn from falsehoods; their own convictions might be clarified or fortified. In any case, it is important for people to know what others think, and censorship or regulation can give oxygen to falsehoods. These points are important, but they are too abstract to answer many concrete questions—involving, for example, fraud, perjury, libel, and false commercial advertising. They provide orientation, but not trump cards.

Truth Matters

Truth matters; in some ways, it matters more than anything else. Public and private institutions, including social media providers, should be acting more aggressively to control defamation and other falsehoods and lies. They should be doing more than they are now doing to prevent the spread of misinformation involving health and safety and of doctored videos. These are specific conclusions, but they bear on some of the largest and most general questions in all of politics and law, and indeed in daily life itself. The principle of freedom of speech should not be taken to forbid efforts to protect reality.