Posted 1:44 PM by Robert

Surely You Jest, Mr. Safire! II: Getting To First With Professor Volokhyrie

What the heck was Brunhilda ("Eugene") Volokhyrie thinking when he wrote:

The Court has generally suggested that knowing falsehoods lack constitutional value, and thus can be punished. Knowing falsehoods about the government, however, seem to be categorically protected even though they're deliberate lies (see New York Times v. Sullivan)... On the other hand, courts have upheld the Ohio bans on knowingly false statements in election campaigns, see, e.g., State v. Davis, 27 Ohio App.3d 65 (1985); Briggs v. Ohio Elections Com'n, 61 F.3d 487, 494 (6th Cir. 1995). And this false statement [that is, the forged Killian memos] seems to be a false statement about a particular person (whether or not it's actually libelous), which would make it pretty clearly unprotected both under the libel cases (e.g., New York Times v. Sullivan) and the false light cases (e.g., Time v. Hill). Under normal tort law rules, the statement might or might not be actionable; but I think that the First Amendment doesn't impose any constitutional barrier to punishing it.

So the First Amendment does not prevent Congress from declaring that, say, Herr Doktorprofessor is guilty of a federal felony if he writes and disseminates a deliberately fraudulent column arguing that President George Bush, personally, is in express cahoots with yet another interplanetary conspiracy of upper-income space aliens bent on stealing every last cent from the American underclass? Does Herr Doktorprofessor's only constitutional protection come from the Eighth Amendment's prohibition on cruel and unusual punishment and excessive fines? Isn't there anything in the mere statement of the hypothetical that ought to set off some First Amendment alarms?

Is it true that The Court has generally suggested that knowing falsehoods lack constitutional value? This despite New York Times v Sullivan:

[D]ebate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. ... Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth--whether administered by judges, juries, or administrative officials.

With all due respect to Professor Volokhyrie, he's on a pretty wild ride here - and his little "on the other hand" cite ("at least one state court has struck down a general ban on knowingly false statements in election campaigns, theorizing that the First Amendment exception isn't for lies generally, but only for specific kinds of lies, such as libel, fraud, perjury, and the like") doesn't stabilize his descent. Few activities are closer to the core of the First Amendment than a candidate's right to lie deliberately and with malice about an opponent in a race for public office. The government would have to come up with a huge and extremely narrow compelling government interest to overcome that right. Such interests exist sometimes, but not generally, and we are not talking perjury here.

How about criminalizing any Presidential candidate's knowingly false statement that unlike the candidate's own program an opponent's proposals will fail to balance the budget? How about a candidate's knowingly false statement that the other candidate, if elected, will expose the country to greater risk of terrorist attack? Or a knowingly false statement that one's opponent has a "secret plan" to reinstate the military draft? Why should the policy of gutting the First Amendment stop with false statements about the other candidate? Is Congress permitted to criminalize a candidate's (or President's) knowingly false assertion that he will make (or has made) abortion safe, legal and rare? Why not just declare that the First Amendment allows Congress to have every politician arrested and imprisoned in advance and be done with it?

We are invited from the comfortable precincts of West Los Angeles to forget the fact that in the early 19th Century much political "dialogue" in this country took the form of scurrilous newspaper libel directed against political opponents - such as Thomas Jefferson - by newspapers functioning as mere organs of political parties and "factions." We are also to forget that the First Amendment was specifically passed to prohibit outrages like the 1735 trial of John Peter Zenger - who was tried for seditious libel in New York. Zenger was the publisher of the New York Weekly Journal who published articles specifically and personally accusing Governor William Cosby of dishonesty and oppression. Forget the fact that both Jefferson and Madison considered the First Amendment to squarely prohibit the Sedition Act, which made it a crime, for example, to publish any "false, scandalous and malicious" writing against the President "with intent to defame" him or bring him "into contempt or disrepute" (Jefferson's tolerance of state actions is irrelevant, since the First Amendment didn't then apply to them). All of that constitutional history - and so much more - goes down the Volokhyrian memory hole into amorphous doubt, apparently because some fatuous judges on the Sixth Circuit wrote a few silly pages upholding a nutty Ohio law?

As Zenger, Jefferson, Madison and many others knew, criminal sanctions are different. In allowing civil damages the Court has relied on the basic observation that if the courts can't right libelous wrongs the offended individuals will take matters violently into their own hands. But in a general political context the surrogate for violence (civil war) is elections - not state sanctioned punishment. It's true that the Supreme Court once upheld a criminal libel statute - but only where violence might have ensued. Sullivan made short work of that precedent:

In Beauharnais v. Illinois, 343 U.S. 250, the Court sustained an Illinois criminal libel statute as applied to a publication held to be both defamatory of a racial group and "liable to cause violence and disorder." But the Court was careful to note that it "retains and exercises authority to nullify action which encroaches on freedom of utterance under the guise of punishing libel"; for "public men, are, as it were, public property," and "discussion cannot be denied and the right, as well as the duty, of criticism must not be stifled." Id., at 263-264, and n. 18. In the only previous case that did present the question of constitutional limitations upon the power to award damages for libel of a public official, the Court was equally divided and the question was not decided.

Professor Volokh is just flat wrong to focus on whether there is a case directly on point here. There is no such case. All that means is that the work of a junior-level clerk or legal associate is done. The real work of applying the history and principles of the First Amendment then begins. But it is just fatuous then to conclude that I think that the First Amendment doesn't impose any constitutional barrier to punishing false campaign statements like the fake Killian memos.

God help us all if he's right.

POSTSCRIPT: New York Times v Sullivan does permit awards of punitive (or "exemplary) damages, which are intended to "punish," against a defamer who proceeded with "actual malice." But Browning-Ferris Industries V. Kelco Disposal quite rightly rejected any equation of criminal punishment sought by the government and punitive damages awarded to a private litigant, at least under the Eighth Amendment. (Kelco accepted the equation where the punitive damages are awarded to the government.) Kelco's analysis distinguishing the "punishment" of private punitive damage awards from the "punishment" of criminal penalties should give serious pause to anyone attempting to analogise between them in the defamation arena.