At 10:42 PM 1/28/97 -0600, Jim Choate wrote:
It has been asserted by at least one member that the 1st Amendment protects libelous or other defamatory speech.
Defamation is not protected by the First Amendment; but the First Amendment limits the application of defamation law in many circumstances. For example, the First Amendment requires plaintiffs to prove "actual malice" if they are a public official, public figure, or a private person seeking punitive damages. So if you want to think of defamatory statements as those which are false and injurious to someone's reputation, yes, the First Amendment protects some of them. (By definition, defamation is outside the protection of the First Amendment, but I get the impression that you're not trying to use it as a term of art.)
This is hokem. The 1st most certainly does not protect lies in any form.
The First Amendment protects some lies. As Justice Powell wrote for the majority in _Gertz v. Robert Welch_, 418 U.S. 323, 339 (1974): "Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U.S. at 270. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). "Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times Co. v. Sullivan, supra, at 279: 'Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.' "The First Amendment requires that we protect some falsehood in order to protect speech that matters." and Justice Brennan, in _NAACP v. Button_ 371 U.S. 415, 444 (1963): "For the Constitution protects expression and association without regard to the race, creed, or political or religious affiliation of the members of the group which invokes its shield, or to the truth, popularity, or social utility of the ideas and beliefs which are offered." So, yes, the First Amendment protects some lies. According to your hypothesis, the country should be collapsing around us any day now because of it. Last one out turn off the lights, ok? -- Greg Broiles | US crypto export control policy in a nutshell: gbroiles@netbox.com | http://www.io.com/~gbroiles | Export jobs, not crypto. |