Does the First Amendment Protect False and Misleading Speech?

Last week I wrote an article titled Stopping Online Piracy in the Age of Entitlement, which lamented the egregiously false claims made by those who challenged and protested the Stop Online Piracy Act (SOPA).  The truth is there are anarchists who simply believe that they have the right to steal creative works of others without paying for them and that causes real damage to businesses, to the economy and to workers who lose their jobs or are not hired.

A recent comment to the aforementioned article explained the problem perfectly.  The commenter — Big Greg — explained:

[T]heft of our company’s creative works occurs regularly and costs real money. The effort our small group is forced to spend policing our IP from both ignorant and purposeful Internet thieves is so unproductive. And, win or lose, the cost to play in federal court is so daunting. I’d much rather put that effort and those resources into growing a business, hiring creative staff and making tangible contributions to our customer’s lives.

Those who don’t want to believe the Chamber of Commerce statistics about how many jobs are lost as the result of rampant copyright infringement are more than welcome to stick their heads in the sand.  But where are the fact based arguments?  All I hear is “you can’t trust the Chamber.”  Fine, what is the truth?  Do you really believe the theft of intellectual property doesn’t cost jobs?  Sadly there are some that do seem to believe that, or who at the very least want to convince themselves and others that intellectual property theft is a victimless crime.  It is extremely naive to pretend that such theft doesn’t negatively impact the economy and jobs.

If a wild crowd of angry hooligans raged into your real world store and stole from you no one would question the damage, but the intellectual property anarchists find it acceptable that movies that cost $100 million or more to make are copied and freely distributed on the Internet on opening day.  Talk about intellectual dishonesty.

One of the things that irritated me the most about the SOPA debate, if you can even call it that, was the lying.  The New York Times was once known as the paper of record in the United States, but now it seems to print lie after lie as if it is their right under the First Amendment to spew falsehoods in an attempt to sway public policy.  I said in a comment to the aforementioned article that I thought it was about time the New York Times be sued for the lies they tell.

Subversion of the truth to forward a personal agenda or to dominate debate should not be protected speech under the First Amendment.  The press is supposed to protect and inform, not pick a side and then lie and misrepresent so that the chosen side prevails.  The First Amendment was never intended to provide media elite with the ability to dominate public discourse.

Before going any further, let’s set the table and expose the New York Times lie once again. In the New York Times Rebecca MacKinnon wrote:

The bills would empower the attorney general to create a blacklist of sites to be blocked by Internet service providers, search engines, payment providers and advertising networks, all without a court hearing or a trial.

For whatever reason MacKinnon choose to lie and build her entire argument around something that is provably false if only you read Section 102 of SOPA.  Section 102 of SOPA required the Attorney General to file an action in federal court, and Section 102 specifically explained how service of process is to be affected and what the Federal District Court Judge can Order in terms of a remedy against a website that blatantly engages in infringing activities.  So for MacKinnon, or anyone else, to say that SOPA violates due process or allows for penalties “without a court hearing or a trial” is simply false.  Either it is a lie purposefully intended to manipulate public policy and defend intellectual property thieves or it shows the utter clueless nature of the commentary allowed in the New York Times.

Let’s return to my comment that started the firestorm.  I wrote:

As far as SOPA, protests are fine. What is not fine, in my opinion, is lying to manipulate the outcome. The NY Times and others lied about the provisions of SOPA. Lying to prevail shouldn’t be protected speech under the First Amendment. The First Amendment doesn’t absolutely allow false speech or speech that misrepresents. Someone ought to sue the NY Times and other news agencies for the clearly false things they say that impact policy. Their lies shouldn’t be allowed to negatively impact decision making.

Yes, I had the audacity to say what is objectively correct.  There is no absolute right under the First Amendment to engage in false or misleading speech.  Despite the fact that this statement is legally 100% correct you would have thought I was engaging in treasonous behavior.  What made it all the more comical was that it was the anarchists who seemed most upset, both in comments on IPWatchdog and in a variety of Twitter and blog articles that sought to paint me as some kind of crazy.  You see the anarchists got so upset because the only play in their playbook is to lie and misrepresent in order to pull the wool over the eyes of enough people that they can get their way.  That is where America is currently and if you ask me that is wholly unacceptable.

The First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So Congress cannot make any law abridging the freedom of speech, or of the press.  Simple enough, right?  The only trouble is that the First Amendment does not actually mean what is says.  The First Amendment talks in broad, sweeping terms, but there are a plethora of instances where there are laws that affect the freedom of speech, and the freedom of the press.  For example, defamation law has always been considered to be consistent with the First Amendment despite the fact that individuals that engage in libel or slander are held to account for the false or misleading things that they say.  Even those who publish things that are found to be defamatory are held to account, so obviously that is one instance where laws are allowed to abridge the freedom to lie and/or misrepresent, as well as the right to publish lies and/or misrepresentations.

There are other examples as well.  The Federal Trade Commission describes its mission as preventing “business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive process…” This mission is achieved, at least in part, by going after those who commit fraud or engage in misrepresentations.  For example, see this sampling of FTC actions that restrict speech that was fraudulent or deceptive, all from 2012:

• FTC Shuts Down Robocallers
• FTC Settlement for Alleged Consumer Deception
• FTC Shuts Down Deceptive Websites
• FTC Stops Marketer from Tricking Consumers into Buying High Risk Investments

The Securities and Exchange Commission similarly goes after publicly traded companies for making false or misleading statements.  To illustrate the point see, for example:

• SEC Charges Former Biotech Company Executive for False Claims About Down Syndrome Test
• SEC Charges Former Fannie Mae and Freddie Mac Executives with Securities Fraud
• SEC Halts Scam Touting Access to Pre-IPO Shares of Facebook and Groupon

Still further, 37 CFR 240.14A-9 says:

No solicitation subject to this regulation shall be made by means of any proxy statement, form of proxy, notice of meeting or other communication, written or oral, containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading.

Then there is trademark law, which also prevents false or misleading statements.  15 U.S.C. 1125(a)(1)(B) says:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false or misleading description of fact, or false or misleading representation of fact, which . . . misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person=s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Moreover, recently the United States Supreme Court has said that it is not a violation of the First Amendment even when Congress removes works previously in the public domain and grants copyright protection to them.  See Supreme Court OKs Public Domain Works Being Copyrighted.

So to anyone paying attention to the law in general it would be obvious that there are a whole host of areas where laws prohibit false and misleading statements and none of these statutes or rules has ever been declared unconstitutional as violating the First Amendment, despite these laws frequently being at issue in cases before the Supreme Court.

But what about the Supreme Court?  Has the Supreme Court, who is the final arbiter of what the U.S. Constitution means, ever specifically said that there is no absolute right to engage in false or misleading speech?  Have they ever said that the First Amendment doesn’t protect false or misleading speech?  You bet!  See:

• “Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)
• “The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see Friedman v. Rogers, 440 U.S. 1 (1979), or that proposes an illegal transaction, see Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376 (1973). Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (1985).
• “When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review. However, when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.” 44 Liquormart v. R.I., 517 U.S. 484 (1996).
• “I have no quarrel with the principle that advertisements that are false or misleading, or that propose an illegal transaction, may be proscribed. Furthermore, I acknowledge this Court’s longstanding assumption that a consumer-fraud regulation that compels the disclosure of certain factual information in advertisements may intrude less significantly on First Amendment interests than an outright prohibition on all advertisements that have the potential to mislead.” Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2010)(J. Thomas concurring in part and concurring in judgment).
• “Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, commercial speech related to illegal activity.” Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980).

So I was right and those who want to believe that the First Amendment protects any and all false or misrepresenting speech were wrong.  But that begs the question.  If advertisers and businesses are so regulated and cannot make false or misleading statements, why should pseudo news organizations like the New York Times be allowed to make false or misleading statements?  The freedom of the press seems built upon the foundation that the press are the protectors of society by informing; performing a watchdog function.  Well excuse me for noticing that the press takes sides and has largely abdicated any watchdog function.  That being the case why shouldn’t they have to play by the same rules as all other for profit businesses?  Do pseudo news organizations like the New York Times really deserve special treatment when they simply pander to what their audience wants to hear?

With this in mind I return to the point that set this argument off.  In my opinion it is wholly unacceptable for pseudo news agencies like the New York Times to spew false and misleading information in order to impact debate and promote the side of the argument they have deemed most worthy to prevail.  I am sick and tired of lie after lie impacting public policy and impacting the outcome of elections.  It is subversive to engage in lying to achieve an end that affects the masses, plain and simple.  It is time to take the fight to those anarchists and arrogant elites who think they know better and are willing to lie to have their views dominate.

Heretofore the United States Supreme Court has said that we do need to tolerate lies and misrepresentations and the fact that such activities erroneously skew public policy debate is not a reason to prohibit that speech.  It is time to revisit those cases and that thinking in light of new societal realities.  The law prohibits false and misleading speech consistent with the First Amendment when damage is done and people are injured as the result of false or misleading speech.  Our country is being stolen out from under us by lies and misrepresentations and in the sound-bite era the masses remain blissfully ignorant.  Our elected leaders are crippled.  Even if they knew what the right things to do were they couldn’t ever do it for fear of angry mobs being incited by those who lie and misrepresent.

But wait?  You don’t have a First Amendment right to yell “FIRE” in a crowded theater or a First Amendment right to incite a riot.  Witness the Oakland Occupy movement.  Witness protests in the mid-West that threaten politicians and shut down government buildings.  I hardly recognize America any more.  Journalists have always been largely liberal, but now they seem to be a fully owned subsidiary for the entitlement society that is willing to say anything and do anything to get their way.

Truly protecting content creators and punishing those who willfully and intentionally engage in copyright infringement not only makes perfect common sense, but it also would be good for the economy.  Hopefully Congress will figure that out as debate renews on ways to prohibit online piracy.