Liars: Falsehoods And Free Speech In An Age Of Deception

Author: Cass R. Sunstein
Publisher: New York, NY: Oxford University Press, 2021. 192p.
Reviewer: Clay Calvert | September 2021

What does Harvard Law School Professor Cass Sunstein, who served as administrator of the White House Office of Information and Regulatory Affairs during President Barack Obama’s first term in the Oval Office, have in common with both former President Donald Trump and current United States Supreme Court Justice Clarence Thomas when it comes to shielding a person’s reputation from falsehoods? The common thread is that they all believe defamation law today, at least in certain respects and with regard to some varieties of plaintiffs, tilts too heavily in favor of defendants. This sometimes allows liars—the lead term in the title of Sunstein’s slender but timely, accessible, and interdisciplinary new book—to wiggle off the hook of liability because proving a defendant knowingly or recklessly spread a falsehood can be a difficult task. In other words, the balance in defamation law between safeguarding the First Amendment interests of free speech and free press, on the one hand, and protecting the ability of states to compensate their citizens for reputational harm wrought by false factual assertions, on the other, is off kilter.

One might recall then-presidential candidate Trump’s call during a February 2016 campaign rally “to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.” That change never transpired, of course, because the executive branch cannot unilaterally alter either constitutional law or the state-law elements of defamation claims.

Media law practitioners and scholars also certainly will remember Justice Thomas’ concurrence in McKee v. Cosby (2019). There, the constitutional originalist controversially called for the Supreme Court to reconsider important, press-protective defamation rulings such as New York Times Co. v. Sullivan (1964). Thomas dubbed them “policy-driven decisions masquerading as constitutional law” that are unsupported by the original understanding of the First Amendment. The Court in Sullivan, which involved an elected public official who sued for defamation and which Sunstein analyzes in Liars: Falsehoods and Free Speech in an Age of Deception, famously adopted what is known as the actual malice fault standard. That standard, as embraced in Sullivan, requires public officials who sue for defamation over false statements about their official conduct to prove that defendants either knew the defamatory statements were false when they were published or acted with reckless disregard for whether they were false (i.e., knew the statements were probably false or had serious doubts about their veracity). Actual malice is an exceedingly high threshold for a plaintiff to clear. The Court adopted it in Sullivan to give the news media breathing room from liability when they inevitably make innocent mistakes when reporting on public officials, as long as those errors are not knowing or reckless. In other words, without the protection of the actual malice standard, the news media might be deterred by expensive and time-consuming defamation lawsuits from reporting on weighty matters regarding public officials.

In McKee, which Sunstein addresses, Justice Thomas seemed particularly bothered by the fact that the Court, in opinions after Sullivan, had imposed the actual malice hurdle not just on powerful government official plaintiffs, but also on all-purpose public figures (celebrities, entertainers, and individuals such as, perhaps were they to sue, Mark Zuckerberg and Jeff Bezos, whose names are well recognized and who wield pervasive and persuasive power in societal affairs) and limited-purpose public figures (individuals who voluntarily inject themselves into specific public controversies in a significant way in order to influence their resolution). Eliminating the requirement that such public-figure plaintiffs must prove that defendants published false statements with actual malice would make it much easier for them to win their cases.

Into this fray now steps Professor Sunstein. He grapples with what to do, or not to do, about the proliferation of many varieties of falsehoods on social media and in the digital age. These range from defamatory statements to so-called fake news to deepfakes, in which video or images, typically created via artificial intelligence, falsely make it appear someone is engaged in an unsavory, compromising activity. And when it comes to public-figure plaintiffs (not public officials) suing for defamation, Sunstein and Thomas appear to be mostly on the same page. Sunstein contends that public figures “should be able to obtain redress for defamatory statements that do not meet the standards of the defining case” that is Sullivan (p. 8). “Is it important to allow journalists to carry stories that are full of harmful and false statements about Taylor Swift, Christian Bale, and Julia Roberts?,” Sunstein queries before quickly concluding the answer is no (p. 101). In other words, Swift, Bale, and Roberts should not need to prove actual malice to win their claims.

In fact, Sunstein intimates that requiring private-figure plaintiffs—“ordinary people,” as he aptly puts it—to prove that defendants acted negligently in publishing falsehoods about them may impose too steep of a burden (p. 101). Negligence is a less demanding fault standard to prove than actual malice, but it still requires a plaintiff to demonstrate that a defendant failed to exercise ordinary or reasonable care when communicating a false statement. As Sunstein writes, “it is not easy to demonstrate negligence, and if people spread a false and damaging rumor, it will be difficult to hold them accountable” (p. 100). In sum, Sunstein casts considerable doubt about the Supreme Court’s imposition of First Amendment–grounded fault standards on both public-figure and private-figure plaintiffs. But rather than just criticizing the status quo, Sunstein offers up five “modest ideas” designed “to protect people against falsehoods without producing the potentially excessive deterrence that comes from costly lawsuits” (pp. 101–102). His five ideas are laudable and worth considering, although one wishes he might have defended each in more than just one paragraph.

To be clear, while Trump and Sunstein may agree there are problems with defamation law that revolve around fault standards, the latter is no fan of the former.  “For concreteness, let’s put this point front and center: President Donald Trump is a liar,” Sunstein bluntly writes (p. 20).

But this book, which also addresses the ethics of truth-telling and lying, is about far more than just defamation law, fault standards, and reputational harm. It’s about: (1) falsehoods (not simply lies, which really are a subset of falsehoods that involve an awareness of falsity); (2) how and why some types of falsehoods, particularly in the digital age, are dangerous and fast spreading (Sunstein astutely uses psychology and other forms of social science research here); (3) the problems that would arise were the government to completely ban or punish all falsehoods; and (4) how to address falsehoods, through both the law and the actions of private entities such as Facebook and Twitter, in a manner that strikes a balance between the harms they cause and the First Amendment interest in free expression.

Almost throughout Liars, the U.S. Supreme Court’s decision in United States v. Alvarez (2012) plays the role of the evil First Amendment bogeyman, haunting legal efforts to thwart the spread of lies. In that case, the Court invalidated on First Amendment grounds the Stolen Valor Act of 2005. That law made it a federal crime to falsely represent oneself as having “been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” In striking down the Act, Justice Anthony Kennedy wrote for the plurality that “[t]he Court has never endorsed the categorical rule . . . that false statements receive no First Amendment protection.” That quotation is often the quick-take headline, as it were, from Alvarez—one stretched much more broadly, as Sunstein puts it, to stand for “the relatively recent proposition that there is, in a sense, a constitutional right to lie” (p. 10). The Alvarez ruling, which safeguarded Xavier Alvarez’s right to lie during a meeting of a municipal water district board about having won the Congressional Medal of Honor is, in Sunstein’s view, “wrong, even preposterous” (p. 42).

I believe Sunstein somewhat oversells the meaning and danger of Alvarez. In this reviewer’s mind, the case was more about an exceedingly poorly drafted law that was, at bottom, designed to protect the symbolic value of tangible objects (medals) that honor members of the military. As Justice Kennedy explained, the Act “applies to a false statement made at any time, in any place, to any person” and “would apply . . . to personal, whispered conversations within a home.” He clearly suggested that lies are not protected by the First Amendment if they are “made for the purpose of material gain” or “to gain a material advantage.” While Kennedy agreed that “protecting the integrity of the Medal of Honor” was a compelling government interest, he reasoned that the government failed to show a “direct causal link” between stopping any and all lies about having won such a medal and the alleged harm caused by such falsities to a medal’s symbolic integrity.

Regardless of any mild disagreement with Sunstein about the reach of Alvarez and whether it may serve in his book as a convenient punching bag, Liars does an excellent job of proposing a taxonomy for when the legal system should act upon falsehoods. That framework blends factors from the Supreme Court’s incitement-to-violence standard articulated in Brandenburg v. Ohio (1969) with state-of-mind components, including the actual malice standard’s focus in Sullivan on a speaker’s knowledge of falsity or reckless disregard for falsity. While other variables come into play for Sunstein, a speaker’s state of mind about falsehoods and the gravity/magnitude of the harm they cause are pivotal in ferreting out whether punishment comports with the First Amendment’s strictures. Censorship or punishment is most justified when a speaker knows a statement is false and when the harm caused is especially grave. Underlying that framework is Sunstein’s foundational principle that “[f]alse statements are constitutionally protected unless the government can show that they threaten to cause serious harm that cannot be avoided through a more speech-protective route” (p. 72). As the last part of that principle suggests, the counterspeech doctrine, which Sunstein addresses, is not rendered nugatory here.

The legal system and private corporate entities, however, can only do so much to protect against the dangers of falsehoods. Something else—something deeper and more systemic in our social compact and everyday human interactions—must change. Sunstein taps into this, suggesting that “social norms” must be used to chill the spread of falsehoods (p. 53). “We need, in short, to find ways to discourage the spread of statements that are at once false and damaging,” he opines (p. 51). Put slightly differently, why has what Sunstein calls “the moral taboo on lying” seemingly eroded in some quarters and how, in turn, can that erosion be remedied to deter the dissemination of knowing and reckless falsehoods such that intervention by either the government or Facebook is unnecessary (p. 34)? Could it be that today’s politically polarized political environment—one in which each side almost invariably seems to reflexively dismiss the other’s positions out of hand as flat-out wrong and meritless—greases the skids for lying? In other words, if there is no sense in trying to reason with the other side—if it seemingly is a waste of time to engage in rational debate and discussion with them—then why not just lie to get your way?

Those, of course, are all macro-level questions for another book and ones for which there are no easy answers. Yet those queries are significant. The legal system and social media companies can only act on the back end of the problem, as it were, dealing with falsehoods and lies once they occur. Social norms can quell lies before they happen. As Sunstein cogently writes, “in well-functioning societies, restrictions on lying and safeguards against spreading falsehoods come mostly from social norms, not from the law” (p. 53). The obvious implication of that observation is that when it comes to falsehoods, the United States is anything but a well-functioning society.

But even altering our own mores and values in the United States regarding falsehoods will only go so far, especially when other countries spread disinformation, as Sunstein makes clear when describing the efforts by Russia’s Internet Research Agency to interfere with the 2016 presidential election. For now, however, Sunstein has provided an excellent foundation for understanding the possible roles that the legal system and private institutions in the United States can play, bearing in mind, all the while, adherence to the First Amendment.

Clay Calvert, Professor of Law, Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project, University of Florida

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