Discussant: Jack Balkin
Chapter of book on sincerity and law. The big idea is that
the pure lie, the lie whether or not it deceives, whether or not the thing
stated is true, but merely a lie in the sense that the person believes/knows
her statement to be false, should receive no protection under the free speech
principle (which can be distinguished from the 1A). It undermines a particular kind of social
practice which is necessary to who we are as a people: a practice in which we
say things to each other and believe that others believe them—the warrants each
of us gives engaging in testimonial speech. Much social and moral life is based
on relying on other people to tell the truth. An economy of warranted
representations undermined when people lie, even when what they say is actually
true or even when they don’t deceive.
Millian argument: lying helps us see the truth—but Mill wasn’t talking
about deliberate lying, but rather error.
Coda: on a different set of political values, accommodation:
reservations about legal regulation of pure lie that emanate from concerns
about equality, fraternity and toleration. Roughly speaking, the notion that we
understand ourselves to be fallible human beings who make mistakes. Given that,
others are equally human, so accommodation and toleration mean that we don’t
demand of others everything we might. There’s good reason to apply this idea
generally, especially when people lie about who they are and where they came
from. Might not apply when businesses/institutions lie because they don’t give
rise to the same considerations.
Key idea: there is damage that lying creates to the
collective testimonial framework. Thus the argument that lies don’t harm
particular individuals is not relevant, given the structural harm. Not an
empirical argument, so the demand for causal proof is inapposite.
So why is it not empirical?
If we looked for empiricism, we’d have something like Gresham’s law (bad
money drives out good) or Akerlof’s market
for lemons, where credibility decreases for everyone. But the nature of the
transaction is different—it’s more about the used car salesmen than the cars;
you trust everyone you deal with less because of lying. But that’s an empirically verifiable
hypothesis about asymmetric information, and there are some conditions under
which it works and others in which it doesn’t. If this is instead a
deontological claim about moral duties, then it’s puzzling because arguments
like Shiffrin’s arguments about counterspeech appeal to effects.
Great argument why these bans aren’t content based under
current doctrine. One could argue that defamation law is content based, but if
defamation is like Shiffrin’s argument about truth-telling—public discourse is
sustained by people’s ability to say things without being defamed (or even
privacy is sustained by such an ability)—then it should look content-neutral
too. But the doctrine doesn’t work that
way presently. What she says about lying
has broader implications for 1A law.
Shiffrin says suppressing pure lies don’t violate the free
speech principle. But a general antilying rule would invite
discretionary/arbitrary prosecution. Maybe civil fines/actions would be more
appropriate. Higher proof principles (as in defamation of public figures). Need for accommodation and tolerance
too. She produces a set of rules that
looks very similar to what you’d get under 1A doctrine: lies generally
protected unless there’s individualized harm.
Comes out close to doctrine today.
So maybe the 1A is not the free speech principle, but rather contains a
number of other values along with that: accommodation and tolerance; we already
know the 1A concerns state overreaching; etc.
Shiffrin: Not primarily an empirical argument because the
core argument is that when people lie they give you a reason to stop believing
testimonial warrants, so what is produced is a reason rather than an
effect. The damage is not the
effect. For the state to act to
prevent/express its displeasure at a practice that reduces/eliminates reasons
for believing testimonial warrants doesn’t have to show citizens become cynical
and disbelieving. When the liar reduces the reasons you and I have to accept
testimonial warrants, they put us in a position where we have to gather particularized
knowledge about person and conditions under which she’ll misbehave—particular epistemic
burden to engage in empirical research rather than accepting each other’s
testimonial warrants. This happens whether we know it or not. Either we respond
to it or we accept warrants irrationally.
Balkin: but couldn’t Akerlof say the same thing? He’s discussing asymmetrical information.
Shiffrin: yes, it’s a model. The reasons we have to respond
to models differ in different contexts. In the economic market, where we are
interested in getting goods distributed well, it may be that actual reactions
are more important than knowledge. I’m arguing about what epistemic reasons we’re
entitled to have and not whether we manage to navigate through the world
without adequate reasons because we have other empirical guides to what’s
relevant/not relevant. Car market v. moral relations—treating people as other
humans rather than anthropological units.
My main argument about counterspeech is that uncovering the truth
doesn’t restore the reliability of the speaker and others who supply
testimonial warrants, though as to whether the listener is at risk with respect
to the accuracy of the content, that will depend on empirical facts.
Counterspeech in general suggests we should move from relying on what people
say to an empirical investigation of whether they are trustworthy, and that’s
an epistemic loss.
Not as confident about extension to defamation law. Because
defamation law requires that you show that the speech is false, that’s a form
of identification by content and discrimination by content. We don’t seem
bothered by that, so why so pressing in Alvarez? She doesn’t think the regulation of the lie
turns on actual falsity, but all deception law—which we have a lot of—is content-based
if you think that having to show that proposition uttered is false is a form of
content discrimination. She doesn’t actually think regulating pure lie is
content based, but doesn’t care much unless it involves a certain kind of gov’t
effort by intent, effect or targeting to restrict/punish people for engaging
with ideas and attempting to engage them sincerely, and content based/content
neutral distinction doesn’t always do that work.
1A v. free speech principle—less confident that worries
about gov’t abuse are really outside the free speech principle, because they
encompass concern for abuse that hinges upon attempts to stifle speech. Accommodation principle is more about
acknowledging shared defects in our moral character that happen in this case to
be about what we say but don’t have to be.
Vincent Blasi: we have a system of epistemic reliance, but
also public reliance on officials. NYT
v. Sullivan principle is costly in that way; perhaps the tradeoffs are worth
it. But isn’t there a reason to think that the balance is not as lopsided as Sullivan said. Or is there a qualitative
difference in the epistemic value of sincerity v. competence?
Shiffrin: duties of accuracy are different. Requirement not
to deceive is founded in duty to take care w/r/t each other’s beliefs. When appropriate, ensure what another walks
away with is accurate. That’s at the bottom of a lot of defamation issues when
they turn on what’s false rather than on sincere representation of what speaker
believes to be true. Doesn’t have a
particular theory across contexts on how strong duty of accuracy is. Should be
fairly strong for press, which represents itself as expert, and have some
privileged access that common citizen doesn’t in scrutiny of gov’t. Still comfortable with NYT privilege, though
it would still be wrong for the press to abuse it.
Sincerity argument may well extend to political discourse.
Balkin: political lie is more important from the shoring up
trust standpoint than the lie about the used car. Response is wariness about
partisanship, favoritism, corruption and undermining of fairness. Value comes
from democracy/rule of law than conception of free speech. 1A as overlapping set of
political/moral/other considerations.
Shiffrin: Agrees that in order to assess whether regulating
political lie would be good idea you’d have to look at culture produced by the
regulation.
Balkin: you’re about what we owe to each other, I’m talking
about culture.
S: we owe to one another a particular kind of culture that
stimulates freedom of thought. But we do have to look at culture can have a
well-crafted legal regime that won’t undermine free and robust discussion of gov’t.
Whether we’re capable of that may vary according to time and place although the
underlying principles don’t vary.
There are a variety of different arguments contributing to
our understanding of free speech/1A, but less confident that they aren’t
principled or capable of principled ordering.
Adam Kolber: why regulation of lying might be content
neutral: as I understood it, you said lying was about the relationship to the
expression, so two people could say the exact same thing and one is sincere and
the other not. The fact that only one is
regulated would be a reason to find content neutrality. How to apply to other kinds of attitudes: one
person might speak ironically and the other not?
Shiffrin: I’d want to know the motive for regulation. A content neutral regulation can be assessed
by target, purpose, and effect. Right to
say that the intrinsic relation between speaker and utterance need not be
content based though it may be as when identity of speaker determines meaning
of statement. Ability to speak ironically is important to express self. But doubts that ability to represent self
insincerely is essential aspect of ability to externalize mental content. Might have a problem on effect side as well
as purpose side if you’re regulating irony.
Why would we care about difference between content based and neutral
regulation? Because content based captures main concerns about regulating
speech. If I were able to show that those concerns were implicated by irony
regulation, that should be enough; not interested in tracking doctrine.
Alexander Tsesis: When a physicist speaks about string
theory, they know they’re fudging the numbers because the equations are too
complex. When we say the sky is blue, we
should know that it’s actually a multiplicity of colors. We say walls are solid but they’re not. Our
communications are so inexact, and we trust inexact experts, and we tell our
students there are three levels of scrutiny.
So what’s a lie? Sometimes we’re insincere even when we know. People expect answers and so we answer
despite our doubts.
Shiffrin: the lie is presentation of proposition to be taken
as true objectively. But standards of truth with respect to precision vary
quite a lot according to who you’re speaking to. Requisite level of precision
to students varies from to colleagues, judges, child. When we have that context fixed, may you
permissibly represent what you say as true within the standards of the context
even when you believe it’s not? My
topics are the last part, not the interesting questions of how precision is
specified within a context and what happens when people attempt to alter the
underlying standards through their speech.
If the string theorist speaks in the way she speaks to children to her
colleagues, then something has gone terribly wrong.
Zephyr Teachout: Past election, when Paul Ryan repeated that
Obama took $716 million out of Medicare. The story is similar to Shiffrin’s:
repeating of lies has led to nihilism in citizens’ understanding and acceptance
of information, so they make judgments not based on information. If Paul Ryan repeats that in a speech, would
you accept a law regulating candidates’ false knowing claims about facts? What if it was specific to insurance
companies? That is, what are the
implications of allowing context/identity to affect the rules? Could we have different standards for
SuperPACs?
Agrees it’s dangerous to bring all values inside the 1A and
make the 1A our Constitution, because it tends to put a 1A hurdle in front of
anything.
Shiffrin: Doesn’t accept the instrumental reason for
deciding whether something falls into the 1A or not. Accepts the idea that
overly rigid const’l interp. interferes w/ our legislative freedoms. Thus there
should be boundaries to the entire const’l structure. But is less confident
that such reasoning applies to any particular provision, especially since she
thinks application varies according to social context. Let’s just see where the arguments go.
Putting aside the issue of the facts, let’s suppose Ryan
said something he didn’t literally believe but that is subject to contextual
better understanding. (Balkin: Obama
reduced payments to healthcare providers, and Ryan called this a cut. Dispute over whether this is a cut or savings
in services. Ryan also voted for these cuts twice; he liked it except that it
was Obama. But he said “it’s a cut.”
Shows the molasses of these disputes.) That’s
a better example of deception than of a pure lie. He’s culpable for believing it and for
believing it’s the appropriate unit of information to transmit, but my argument
isn’t about deception. What matters to
me is not its falsity but that he doesn’t believe it and represents it as true. Free speech doesn’t bar regulation of that
even by politicians; would certainly think business organizations were also
covered. Gov’t abuse arguments have more sting w/r/t politicians but how that
should go depends more on political culture/barriers we can create to abuse.
David Pozen: not whether we could regulate lies but whether
we should. Would have to know a lot
more about enforcing prohibitions on lying. Many contexts have strong moral,
social, reputational sanctions against lying already. Would want more info on
their efficacy before knowing about whether extra regulation would be
helpful. Paper deals with costs like
potentially sapping intrinsic motivation to be truthful; would we lose anything
by not having collective moral response calibrated on the fly about how to deal
with lies? Something more than
accommodation and toleration may be compromized by legalizing response to lies—deliberative
process of figuring out boundaries of acceptable behavior and appropriate
punishment, if any, for lies. Something valuable happened in response to Paul
Ryan that could be lost if it moved to prosecutorial decision. (I think this weirdly puts lawmaking off the table as a result of a
deliberative process.)
Shiffrin: I take my argument to be necessary but not
sufficient and take no position on when we should regulate the lie. These
conversations are useful too. 1A concerns may get in the way of having a larger
discussion of whether we have a problem that the law can address.
Sociologically, we’re not good at taking lies seriously. We’re
stunningly casual about accepting that others lie and that we can’t have a
healthy political culture. Whether legal
regulation would make a difference, not certain that we have to understand
legal regulation as taking over/monopolizing our social and moral attitudes
rather than reinforcing them. Legal regulation can announce and affirm that we
think this is a serious harm that is not merely interpersonal. We’ve seen laws
play leadership roles rather than occupying morality and taking it over.
Antidiscrimination laws helped to actually give a number of people the ability
to make social claims of each other; illegality gave a reason to insist on
compliance. But the law wasn’t enough. People had to find ways to manage
problems, but the legal expression of the wrong made a difference in helping
people accept that this was their responsibility. Look more to that model than to that for
pharmaceutical regulation, which is supposed to take off our agendas the
question “what can I ingest?”
Leslie Kendrick: Structure of project overall—relationship between
duty of sincerity and conception of freedom of speech. Kendrick’s take: sincerity is a moral duty
that we all have, and then you’re asking whether regulating lies in the service
of this duty can be consistent w/freedom of speech. Freedom of thought seems related to this
sincerity requirement—can you say more?
Shiffrin: duty of sincerity is rooted at least in part in
political duties to treat one another well, respond to one another as
individuals; we need to cooperate to do so, and to cooperate we have to know
what others think as they’re willing to share it. Duty of sincerity is
essential to the functioning of the economy of epistemic sharing. One of the
arguments for it is that our political obligations depend on it. So to freedom
of speech depends on those values—to become the kinds of people we have the
right and obligation to be, we have to develop as thinkers, and ability to
engage in sincere speech is an essential component of that. What underlies the
duty of sincerity underlies the duty of freedom of speech, so it’s not shocking
that they’re fully compatible even if the duty of sincerity were legal rather
than moral.
Would there be an obligation to have a legal duty of
sincerity? There certainly are freedom of speech values that depend on
sincerity, and we need a full culture of sincerity to meet our duties of
justice well. I would turn to specific questions of how regulation functions in
a sociological culture to answer whether we need legal regulation. If we can
manage w/o legal regulation we have no obligation to legalize it anyway, but is
open to argument that law would foster free speech values.
Tabatha Abu El-Haj: are you concerned we’re complacent about
lying throughout? In personal relations,
we seem quite concerned or at least there are quite varied reactions. But in
political culture we’ve reached a place where politicians lie all the time and
don’t think they need reasons. Struggling with empirical/nonempirical divide.
Shiffrin: doesn’t mean for paper to rest on sociological
claim. One’s sociological views have an
influence on whether you think this is a problem or not. Not sure we’re doing well at interpersonal
moral level—many people lie casually to friends, to corporations, when they
think it’s trivial. When else are they
willing to lie?
Meant accommodation argument to apply to autobiographical
speech—reasons to tolerate that weakness. But when people take on expertise,
fiduciary duties, there’s no political or legal reason to tolerate that.
Q: you can be insincere by asserting something beyond your
level of confidence: you can make a testimonial warrant and believe that it
might or might not be true. Wouldn’t
your principle also apply to that?
Shiffrin: my position on what a lie is does extend to that—if
I say “p” but believe “maybe p,” that’s a lie. But because for legal purposes
it may be difficult to ascertain level of confidence of belief as well as level
of confidence contained in the assertion, she’d make part of the standard of
proof an active belief in the contrary.
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