Durk Pearson & Sandy Shaw’s®
Life Extension NewsTM
Volume 15 No. 5 • September 2012

To refuse a hearing to an opinion because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility.
— John Stuart Mill

(D&S: And we all know who “they” are ...)

Though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.
— John Stuart Mill

Are Lies Protected by the First Amendment?

The quote just above offers a very good point and one that provides excellent counterpoint to the view that the First Amendment does not protect “lies.” The very words of the First Amendment “Congress shall make no law … abridging the freedom of speech …” make it clear that the establishment of federal “truth police” is specifically prohibited under Congress’ lawmaking powers. What part of “NO” don’t the feds understand? (If one is actually injured by false speech, civil suits are available for the recovery of damages.)

The FDA was denied its assertion of absolute authority to prohibit a health claim for a dietary supplement on the basis that the evidence in support of it was not conclusive (thus allowing the agency to silence the entire health claim including all the evidence that truthfully supported the claim) in Pearson v. Shalala (Court of Appeals of the D.C. Circuit, 1999). The Court ruled that health claims containing truthful information cannot be prohibited but that the FDA can require a disclaimer if they believe claims are potentially misleading.

There is an important case now before the U.S. Supreme Court, United States v. Alvarez, in which the question—are lies protected under the First Amendment?—is asked. The case involved a man running for the Municipal Water District board in a small California town who claimed he was a retired Marine and had been awarded the Congressional Medal of Honor. The man never received the Medal and, in fact, never even served in the military. He was charged under the federal Stolen Valor act for lying about awards received for military service. U.S. v. Alvarez, 617 F.3d 1198 (9th Cir. 2010), reh’g denied, 638 F.3d 666 (9th Cir. 2011), cert granted 80 U.S.L.W. 3237 (U.S. Oct. 17, 2011) (No. 11-210) Stolen Valor Act of 2011, H.R. 1775 and S.1728, 112th Congr. (2011) See story on this case in Lozare, “Stolen Valor” The News Media & The Law, Winter 2012 (published by the Reporters Committee for Freedom of the Press)

UPDATE: We were pleased to learn that the U.S. Supreme Court on June 28, 2012, in United States v. Alvarez, overturned the Stolen Valor Act 6–3 as a violation of the First Amendment (Alito filed a dissenting opinion that was joined by Scalia and Thomas).

Going even beyond the above two cases, however, the feds have criminalized lying to the federal government when, in the course of the investigation of a possible crime, somebody lies to the feds even when the lie has nothing to do with the potentially criminal act under investigation and, indeed, has no connection to any criminal act at all. Lying to the feds itself about anything whatever is now deemed a criminal offense for which one can be imprisoned. (One could lie, for example, as to where they were on a certain date at a certain time when that date and time have nothing to do with any crime.) A recent notorious example of this took place in the case of I. Lewis “Scooter” Libby, who ended up in a federal trial related to the leaking of information concerning the identity of CIA officer Valerie Plame Wilson. He was indicted for two counts of lying to federal investigators, two counts of perjury, and one count of obstruction of justice (because of lying). He was acquitted on the second count of making false statements.

Note that Libby WAS NOT indicted for actually leaking anything, but for lying to officals about how and when he learned that Plame was a CIA agent. IN FACT, THE GRAND JURY WAS UNABLE TO DETERMINE WHETHER THE LEAK EVEN VIOLATED FEDERAL LAW. Libby was sentenced to 30 months in prison and fined $250,000 as well as being disbarred. (The 30 months in prison was commuted by President George W. Bush, but Libby still had to serve the probationary period plus pay the large fine and suffer disbarment.) Our point here is not whether the punishment was appropriate or whether it was “fair” that Libby got a commutation from Pres. Bush whereas most other people would not have, but whether lying to the feds should be treated as a crime without a conviction for committing a crime in which the lying played a part. Politicians can lie all they want and not have to worry about going to jail or paying large fines for doing so. Why should a private citizen be treated any differently?)

A complete description of the Scooter Libby case can be found at Wikipedia (http://en.wikipedia.org/wiki/Scooter_Libby). Also, a useful discussion of the federal statute on making false statements to federal officials can be found at http://www.law.cornell.edu/uscode/18/1001.html. According to Wikipedia, “[t]he purpose of the statute is to ‘punish those who render positive false statements designed to pervert or undermine functions of governmental departments and agencies.’” This sounds suspiciously like the Alien and Sedition Acts of 1798, in which one could be fined or imprisoned for criticizing the government, which might be interpreted as “undermining” function of government. The Wikipedia account also states that “[e]ven constitutionally explicit Fifth Amendment rights do not exonerate affirmative false statements.” So much for the Fifth Amendment’s protection against compelled self-incrimination (“… nor shall [any person] be compelled in any criminal case to be a witness against himself …”).

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