Mark Spottswood, Falsity, Insincerity, and the Freedom of Expression, 16 William & Mary Bill Of Rights Journal 1203 (2008)
This thoughtful and useful article argues for greater constitutional protection for false but sincerely held claims as valuable in themselves, not merely in order to provide breathing room for truthful speech. By contrast, false and insincere statements do not promote overall truth.
I don’t fully buy the insincerity argument: though there are through-and-through fraudsters, often people who tell lies believe that they are telling a larger truth—see, e.g., the existence of WMDs in Iraq and whether the US tortures. If sincerity is a pointer to the existence of an important debate on which we should inform ourselves, then I have difficulty saying that sincerity in the ultimate belief–e.g., should we be in Iraq?—shouldn’t count.
More generally, I do not understand the idea that lies deprive listeners of autonomy while truths (or sincere falsehoods) don’t. Whether true or false, a nonperformative statement leaves it to the listener to act, though we can often predict how particular statements will influence action. At the very least, the concept of “autonomy” used to make this claim contains an implicit definition of autonomy as freedom from manipulation by liars that turns the proposition “lies harm autonomy but non-lies don’t” into a tautology. I can, and do, define autonomy differently. And indeed, Spottswood slides from lies to manipulation (“An individual’s dignitary interest in speaking his mind cannot extend to the willful manipulation of others.”)—but one can manipulate with the truth, or with statements lacking any truth value, as well—e.g., “I will sell you this tasty banana for $.79” or “the quicker picker-upper.” The clever manipulator takes advantage of general features of human psychology, like our tendency to feel obligations when we perceive we’ve been given a gift (free with purchase!), but then again so does the liar, who must make her lie plausible to let it do its work.
I’m always glad to see Gricean implicature applied to legal issues. (Richard Craswell’s recent article in the Virginia Law Review is another good example; my colleague Greg Klass has a response to Craswell up at SSRN.) Spottswood argues that we can use implicature to help manage the gradients between true and false, and sincere and insincere claims, since we can look at ordinary rules of implication in context to assess the likelihood of misunderstanding or deception.
Unfortunately, I can’t share Spottswood’s optimism with respect to the truth-promoting benefit of false but sincere speech when it comes to commercial speech. I should note that he points out that the question of a corporate entity’s sincerity may be a difficult one—in fact, his focus on sincerity might be thought to support the proposition that a corporate speaker has no freedom of speech rights in itself, and any protection for commercial speech must be derivative of the audience’s interest in hearing truthful claims. Since his argument is not that sincerity is a moral value but that sincerity prompts a valuable search for factual proof and disproof, however, he might well contend that the audience’s interest is coextensive with “sincere” corporate speech, however defined.
He argues that false but sincere commercial speech should receive the same constitutional protection as true commercial speech. He points out that, for example, winemakers are currently prohibited by the ATF from making health claims for wine without significant qualifications, despite growing evidence in favor of such health claims. This is a fairly standard argument about regulatory mistakes in assessing truth—sincerity works here as a limit on the kinds of commercial speech that should get heightened protection.
He also accepts that “local” falsehoods might be so harmful that they should be regulated regardless of sincerity. The classic example involves the safety of drugs—though he argues for compelled disclosure of the regulator’s position, rather than suppression of the drugmaker’s own claims. I think this baby-splitting is doomed to failure; research on disclosures makes pretty clear that consumers simply won’t read that far. See, e.g., Paula Fitzgerald Bone & Karen Russell France, Policy Makers’ Paradigms and Evidence from Consumer Interpretations of Dietary Supplement Labels (showing that the presence of a disclaimer like the one Spottswood advocates has no effect on consumers’ beliefs about (1) the first-order claim made by the advertiser or (2) whether a regulatory agency has evaluated and approved the advertiser’s claim).
Spottswood’s overall argument depends on the idea that it is the contest over the truth of a false claim that improves overall knowledge—not the false claim itself. Spottswood emphasizes the role of credibility in assessing competing truth claims. But research reveals, for example, that people forget source before they forget an assertion, so that even an incredible source can create false beliefs a few days down the line, and, paradoxically, refuting a false claim can increase audiences’ belief in that claim. Likewise, ad repetition can create belief when there was initially disbelief, and ads can change attitudes towards products without adding any new information (see the work of Scott Hawkins).
Spottswood also discusses the epistemic benefits for nonexperts of learning that experts disagree, but does not in my opinion adequately account for the biased ways in which disagreement gets presented in the media, which—when it actually features factual disputes—tends to put one position against the other as if all disagreements were of equal credibility and featured roughly equivalent evidence on both sides. Moreover, with respect to commercial speech in particular, I’m not sanguine that people will learn about factual disputes in helpful ways. Who disputes the claims of supplement purveyors? Spottswood mentions Consumer Reports, but not many consumers subscribe, and competing supplement makers have few incentives to attack the level of scientific evidence for supplements generally, even if they have incentives to evaluate competitors’ claims to purity. It comes down to intermediaries: do we have reason to think that the actual level of confidence among experts will be adequately communicated?
Along with my skepticism about the correctability of false (though sincere) commercial speech, I am dubious of reinstating any fault-based line in advertising regulation. We moved away from fraud in consumer protection to a more strict liability scheme for good reasons; clever defendants can regularly at least create doubt about their actual beliefs. I doubt that the costs of a sincerity defense are worth the benefits, at least in the area of commercial speech regulation, which is where it would likely be the most important—given that the other area of speech regulation in which falsity routinely matters is defamation, where sincerity is already pretty important.
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4 comments:
[Prof. Tushnet: If you could post this comment, rather than its predecessor, I would be much obliged. Thanks, Mark]
I’m thrilled that you thought the article was interesting enough to post about; I’m also thrilled that you posted in a forum where I can post a brief response. It gives me a chance to clear up what seems to be a common confusion (a confusion which is, of course, entirely my fault) regarding the concept of sincerity.
The concept of “sincerity” discussed in the paper is a defined term – and as always, I sacrificed some clarity for the sake of precision in choosing to go that route. Sincerity, in my usage, means nothing more or less than a correspondence between the meaning of a speaker’s statement (including its implicatures) and the belief state of a speaker. So “people who tell lies [but believe] they are telling a larger truth” would not be speaking sincerely; the key criteria is not their good intentions, but whether they appropriately represented their mental states to their listeners. A “white lie” is still a lie, after all.
This means that I am working with a slightly different concept than the one I discuss in the section on the moral and political theory of false speech. Kantian autonomy theorists (as you are right to point out) focus far more on the intention underlying an action than on its result; this means that my treatment diverges from theirs in those cases where a speaker intends to speak honestly, but fails to do so. (I actually agree with you that the concept of “autonomy” does far less than the theorists seem to assume.) This disagreement may seem like a large gap, but it ends up not making a difference in most practical cases, because the concept of sincerity I employ requires more than just speaking things you don’t know to be false; it requires saying only what you affirmatively believe. So a speaker can’t just carelessly toss out statements and then say “I didn’t mean for you to take it that way,” but rather, must attend to how their statements are likely to be understood, if they are to speak sincerely.
Similarly, I didn’t mean to suggest that all manipulative speech was therefore unentitled to protection. Rather, I meant merely to suggest that theorists who give autonomy or dignitary values overriding weight on the scale in assessing whether speech is entitled to protection (and I am not one of those theorists!) have less reason to protect speech that is manipulative than speech that is not, given the premises of their theories. Note that I am not claiming that there is some bright line between these two types of speech (J.L. Austin demolished any notion of such a line, in my opinion, by showing how much of our speech is intended to have perlocutionary as well as locutionary force). Nor am I developing a theory of how the First Amendment should apply to manipulative speech per se, only false speech (although that is a fascinating question, to be sure). I did not intend to press any claim in my article about the value of speech that is used to alter the desires of other people (such as your banana example), so if it seemed that I was doing so, I regret the confusion.
As to corporate belief states: my own view is that they exist, but are derivative of the belief states of corporate agents. I agree that the case for corporate speech rights flows from the audience’s interest, but I would characterize that interest not as an “interest in hearing truthful claims,” but rather, as an “interest in believing as many truths as possible.” Hearing false speech can serve that second interest, and hearing the arguments provoked by false speech is very likely to serve that interest. So you are correct to note that I view “sincere corporate speech” as both valuable and deserving of constitutional protection.
The Bone & France study on disclaimers is interesting, but I think it misses the mark in one important respect. It draws its data from random intercepts at seven U.S. malls. See http://www.cfsan.fda.gov/~dms/qhcfran/qhcfra14.htm. The problem with this approach is that there is likely to be little motivation for subjects to reach accurate conclusions; unlike many purchasing decisions, there is no reason for me to care about the effectiveness of garlic supplements while filling out a mall questionnaire. Thus, I am skeptical regarding the inference you assert: that, even when we care about outcomes a great deal, we still ignore qualifying language. A similar quibble applies to the Skurnik study (regarding our tendency to remember claims previously labelled “false” as true, after some time has passed). Participants were compensated at a flat rate, so there was little incentive to get it right. In the real world, the most important product claims are those that matter a great deal to consumers – and it is precisely those claims that consumers have the most motivation to evaluate skeptically. So although I would be fully willing to revise my claims in response to the right sort of empirical evidence (the kind that would show that well-motivated members of the general public are more likely to hold false beliefs after hearing competing sincere claims than after hearing only one side of the argument), I haven’t come across such evidence yet.
With respect to learning about expert disputes and the importance of intermediaries, the role of the internet cannot be overstressed. You mention supplements as an example where you think counterspeech might be in short supply. But googling the name of any supplement quickly brings up a variety of discussions of their efficacy, including the views of both proponents and detractors. Your discussion seems to assume that the only way most consumers get their information is via advertising or television, but that is simply not the case.
As to the costs of litigating sincerity: I doubt they amount to much in the scope of a large dispute, but I don’t doubt that the rule I advocate might raise litigation costs to some degree. But if you believe, as I do, that suppressing sincere-but-false speech harms the listening public, than the question simply becomes whether the benefits are worth the costs.
Thanks for the thoughtful reply. I appreciate your clarification about sincerity, though I don't think it changes my conclusions. In particular, the claim that a corporate entity should pay attention to how its statements are likely to be understood would often take us far back along the road to strict liability, at least in the common false implication cases where the defendant concedes that an implication is false but denies that its ad ought to be read to imply that particular claim.
I think we will have to agree to disagree on many matters, and a large portion of our disagreement rests on who has the burden of proof. You take the position that the empirical studies are not naturalistic enough; I disagree, and would like to see your empirical evidence that decisionmaking differs outside the test environment. As someone who does a lot of research on many purchases, because I have the wealth and leisure to do so, I still end up going on faith a lot of the time, because I have other projects in life and because it's not rational to research everything to the point of confidence. I also have seen no evidence that memory, in particular, works differently in experimental settings and natural ones. (As a side note, I think the many misconceptions about Senator Obama are a good example of a very natural experiment about the persistence of false claims.)
Your position reads to me as: "if you don't care enough to investigate until you have as much information as is available, you don't really care, and therefore a mistake isn't that harmful." I disagree, because of the multiple competing priorities we all have, and because there are a bunch of different types of harm; the information environment might be more robust without the FDA, but the FDA regulates claims now on a strict liability basis because a lot of kids died before it did so. People might have been more skeptical pre-modern FDA, but I think we should get our epistemic robustness from unfettered political discourse and regulate commercial speech more tightly.
As to the internet, I agree that it's a great help to those with the time and the money to use it. But almost none of the supplement information I see on the internet comes from scientific studies; it's more a lot of individual reactions, which are compelling but not actually good evidence. Individual consumers simply lack the resources and expertise to evaluate the credence claims that are such a significant part of modern advertising, especially on health and safety issues.
I just wasn't convinced that sincere-but-false commercial speech--like claims for the Q-Ray bracelet, shark cartilege, and other quackery--does consumers much good, even in the debunking. Your only example of harm from the current regime in your section on commercial speech involves health claims that are true-but-banned, not sincere-but-false.
Lots of great points here. I agree completely that, in practice, most corporate speakers who are currently punished under the existing strict liability regime would continue to be punished under the regime I suggest. Similarly, I agree that the Q-Ray bracelet is not an example of useful debate -- but (like Judge Easterbrook) I have little doubt that the claims made by that product's manufacturer are insincere.
I agree that there is a lurking burden of proof issue, and I would love to have the opportunity to help design studies designed to see if I am right regarding the limitations I identify in the studies you cite. Frankly, the idea that participants who have more motivation to sort out true claims from false are likely to avoid some of these cognitive errors seems a fairly natural intuition to me, but it is clearly not an intuition that we share. So I suppose that further discussion will have to await further evidence!
(But I doubt that the Obama case is a good example, for precisely the reasons Bryan Caplan explores in The Myth of the Rational Voter: voting errors are so close to costless that the difference is near indetectable. The rewards we get from voting and political participation have very little to do with whether or not we are correct in our political beliefs. The strong trend towards divergence of political beliefs towards extreme views -- and the tendency of this skew to increase as voters become more informed -- surely bears this out. So, why should we expect voters to be motivated to seek out evidence on both sides of a question, rather than just the evidence that confirms their biases?)
I don't think your description of my position:
if you don't care enough to investigate until you have as much information as is available, you don't really care, and therefore a mistake isn't that harmful.
...quite captures what I've been trying to say. Rather, people who have a lot at stake tend to investigate a lot. People with nothing at stake investigate very little. Lots of people fall in between. But honestly, most product claims matter relatively little to consumers. There's a difference between the sort of cavalier attitudes toward evidence that people will take when it costs them twenty cents, versus the consideration they will apply when the price difference (or the personal risk) is more significant. To be sure, some people are quite comfortable with risk, and so some will continue to use things like supplements without paying much attention. But even if we protect that group of individuals from (very occasionally) encountering sincere-but-false product claims that might endanger them, I have no doubt that they could not find other ways to take risks of which we would disapprove.
Finally, please note that I am not advocating abolishing the FDA. I haven't said anything against the current approval processes before drugs can be legally bought or sold. I haven't said anything against the FDA putting huge warning labels on any products that contain claims with which it disagrees. All I've urged is that, in the rare case that a company truly believes that the FDA is wrong about a particular issue, it should be able to say so.
I think at least we’re sharpening the points at which we diverge:
1. We disagree about the relevance of information overload. I value my children’s health highly, but that doesn’t mean I can investigate for myself whether probiotic yogurt and DHA and chromium and etc. are things I should add to their diets.
2. Relatedly, we attach different weights to harms that are individually small but large and efficiency-distorting in the aggregate. Our disagreement implicates the same considerations that surround interest-group politics, the costs and benefits of class actions, and so on—when a relatively small set of businesses captures the benefits from mistaken consumer beliefs, and no individual suffers significant harm, then only some aggregation device, whether a class action or a regulatory action, can correct the distortion and achieve the best result.
3. Of course I agree that in general we pay more attention to things that matter to us more (within our overall constraints), but that doesn’t mean we individually are good at sussing out complex truths, especially when it’s us against a sophisticated drafter/advertiser. For one thing, the Gricean framework notes that we presume truth—which often means that we don’t bother to seek out contradiction. Cialdini’s book Influence is probably the best single work on the subject of advertisers’ ability to overwhelm individuals’ bullshit detectors.
4. If you want empirical examples of people making serious, life-destroying mistakes about things that matter to them a lot, consider what’s going on in the credit card and subprime mortgage markets. Not all of what went wrong was deception, but there was plenty of that. Nor do I mean to suggest that better regulation of commercial speech alone would have averted the problems. In fact, as I argue in my Loyola piece, regulating commercial speech and regulating commercial conduct are often heavily intertwined, which is why I am so jealous to protect the government’s ability to regulate false and misleading commercial speech.
5. If you believe that situations in which a commercial speaker sincerely disagrees with the government are rare, then we’re back to the perennial question of whether the game is worth the candle. In high-stakes advertising litigation, defenses that are rarely applicable will always be raised, and will regularly be expensive to rebut, and that’s an automatic strike for me against a new one. (I have further reservations about the corrosive power of the First Amendment generally—and I think the connotations of “sincerity,” which we explored above, might prove particularly dangerous.)
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