Should Lies Be Free?

A few weeks ago I wrote:

The usual rationale for “free speech,” which seems persuasive, is that in the long run we as a society learn more via an open competition for the best ideas, where anyone can try to persuade us as best they can, and listeners are free to choose what to hear.

This week we hear:

The federal courts are wrestling with a question … Does the First Amendment right to free speech protect people who lie about being war heroes?  At issue is the Stolen Valor Act, a three-year-old federal law that makes it a crime punishable by up to a year in jail to lie about receiving a U.S. military medal. …

Lawyers … [are] saying the First Amendment protects almost all speech that doesn’t hurt someone else. Neither man has been accused by prosecutors of seeking financial gain for himself.  Jonathan Turley … said the Stolen Valor Act raises constitutional questions because it bans bragging or exaggerating about yourself.  “Half the pickup lines in bars across the country could be criminalized under that concept,” he said. …

Lawyers challenging the act say that lying about getting a medal doesn’t fit any of the categories of speech that the U.S. Supreme Court has said can be banned: lewd, obscene, profane, libelous or an imminent danger to others, such as yelling “fire” in a crowded theater.

For some kinds of lawsuits, it makes sense to limit attention to financial harms, because other harms are harder to estimate; deterrence via compensating for financial harms is good enough.  But it is crazy to pretend that non-financial harms don’t exist. Of course it hurts other folks if they believe you have medals that you don’t.  And the basic rationale for free speech, finding truth via open competition, hardly endorses straight lies!

Yes, I can sort of see the point of allowing some social contexts in which people accept that it is ok to lie about certain topics; maybe folks there are more interested in seeing how well and creatively you lie, and don’t really care much about the truth on those topics.  But it seems to me ok to require some explicit opting in there; I’m fine with a default to legally punish liars.  Unless your audience agreed that certain lies are ok, they aren’t ok.

I’ll admit most people seem to disagree, preferring no legal penalty for non-financial-harm lies.  I suspect this is analogous to disinterest in objective risk estimates:

Well-connected managers already know they prefer estimates by officials who respond to social pressure, over hard-to-manipulate market estimates, even if the later are more accurate.  Of course less well-connected managers should prefer the opposite, but who wants to signal their bad connections by endorsing independent markets?

Those who can more easily lie, and detect lies, want lies to be allowed, while the less lie-capable should want lies to be punished.  But who wants to publicly signal they are bad at lying or at detecting lies?

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  • Joe

    One trouble is distinguishing lying from all of its look-alikes. E. g. delusion. If I believe my own lie, is it still a lie? If not, the delusional have a legal advantage which could translate into a tangible gain. Lying plays an important part in bargaining and many other situations involving posturing and conflicting interests (job interviews, pickups, etc).

    We protect the right to lie for the same reason we protect the “right to privacy” — not because it’s an inherent good, but because removing the protection gives an (additional) advantage to those who are most able to conceal their deceit. Instead of the law, we have other social mechanisms (gossip, (un)friendliness, criticism) to “punish” legal but odious behavior.

    If a person bragging about getting a medal is found out by the people he’s been telling, he will lose any benefit of the lie (which were most likely social, though he could have received physical gifts), and incur additional penalties (which will be most likely social, though he may receive a physical beating).

    We also already recognize that there are harmful lies and “white” lies, and perhaps a majority see the latter as okay in at least some contexts, but it is a notoriously slippery slope, and a discrimination for which the law is probably too blunt an instrument.

    • michael vassar

      Voted up for being an obvious and complete response.

      • Jim Babcock

        That’s a lie, since there’s no voting/karma system. But it’s also illustrative of yet another problem with trying to punish lies legally; statements may be true according to one interpretation and false according to another, and the interpretation under which it’s true might not be the literal one.

      • http://hanson.gmu.edu Robin Hanson

        michael, I think far too many things are obvious to you.

    • Jeffrey Soreff

      One special category of lies that no one seems to have discussed yet is perjury. That certainly carries a penalty.

  • Timothy Brownawell

    Is this really a question of signaling about lying? Would such signals actually be useful?

    Maybe people want to reduce the risk incurred by sending false signals. Say lying is basically a gamble: if you win, you signal your high status; if you lose, you signal your low status. Weakening those low-status signals from losing increases the expected return.

    If I approve of lying, that implies I need to take this gamble in order to have high status. But that would mean I’m actively seeking status, which is low status.

  • http://robertwiblin.wordpress.com Robert Wiblin

    “Of course it hurts other folks if they believe you have medals that you don’t.”

    Not of course. Maybe they enjoy the experience of having something they believe to be a medal winner. They couldn’t opt in to be lied to, because then they couldn’t believe what they want to believe.

    As long as they don’t use the lie as a signal of actual characteristics the results of which they might care about (marry you thinking you are brave when you are not), they aren’t clearly harmed. The lie will almost certainly harm them though if it is revealed as a lie (nobody likes to be fooled), so maybe we should punish incompetent lying only. I guess convincing liars won’t be found out so the law already works that way.

    • Jess Riedel

      This is strongly dependent on your moral philosophy. Many people would consider being deceived a harm even if, through being deceived, they experienced more subject well-being. For instance, they may assign much more utility to knowing the truth, as I suspect Robin Hanson does, than to “feeling good”. (See, for instance, his post about doctor’s telling patients about their terminal illness.)

    • Tyrrell McAllister

      Maybe they enjoy the experience of having something they believe to be a medal winner. They couldn’t opt in to be lied to, because then they couldn’t believe what they want to believe.

      Some evidence against this is that many people support laws against lying about military valor. One interpretation of this support is that people are opting out of being lied to.

    • http://www.doesthinkingmatter.com/ thinking…

      Not of course? We must then define harm. Is harm in the eye of the beholder? Is it better to believe true things or rather, at times, untrue things? Is it not the greatest evil to be deluded? Is Socrates dissatisfied better than a pig satisfied?

      “What sort of man am I? I am one of those who would be glad to be refuted when saying a thing that is untrue, alas also to refute another if he said something inexact, not less glad to be refuted than to do it, since I deem it the greater blessing, in proportion as it is a greater good, to be released from that which is the greatest evil than to release another from it.” – Socrates

      Of course this leaves out questions on motivations towards beneficial self-deluding doxastic voluntarism.

    • http://robertwiblin.wordpress.com Robert Wiblin

      “Maybe they enjoy the experience of having something they believe to be a medal winner”

      should read

      “Maybe they enjoy the experience of being in the company of someone they believe to be a medal winner.”

      Most people don’t care nearly as much about the truth as Robin or most people here.

      This law is partly there because people want the truth, partly because they don’t like realising they’ve been fooled, but mostly because it signals special reverence veterans. Even people who favour this law would still have their preferences satisfied more overall if the law were in place and they were nonetheless lied to convincingly.

  • http://hanson.gmu.edu Robin Hanson

    Joe, how do you know which harmful behaviors should be discouraged by law vs. “other social mechanisms”? I don’t see how it is such a slippery slope compared to other judgements about where to apply law. This particular case seems pretty clear.

    Robert, it isn’t obvious that you can’t believe what you want to when you opt into a regime where lies are not punished legally.

    • David C

      It’s a slippery slope relative to the size of crime because the crime is so minor, and the costs of legal action are so high. Legal punishments should never cost more to carry out than the loss incurred by the crime itself. Given that any type of legal punishment is nearly certain to cost more than lies that do not result in financial gain, any type of movement in this direction is going to result very quickly in relatively large losses for society overall.

      • tim

        David, the point of costly legal action for minor crimes is to deter others from committing the same crimes, and incurring a greater cost to society overall. Suing a corporation for a cheap defective product may be expensive, but it may also protect millions of other consumers.

      • http://www.doesthinkingmatter.com/ thinking…

        @David: I am trying to figure out why I was so drawn initially to this sentence:

        Legal punishments should never cost more to carry out than the loss incurred by the crime itself.

        I think the unclear language allowed me to assume something that I cannot pinpoint now.

        There seems to be a difference here between the following:
        (1) a Lying Police that is commissioned to find out liars
        (2) a right to bring suit when lied to

        The costs and bearers of the costs are wildly different.

    • http://hanson.gmu.edu Robin Hanson

      David by that argument one shouldn’t be allowed to sue for fraud for any product that costs less than $10, since the cost of legal action is far higher than this.

      • Randall Randall

        It’s unclear whether you are agreeing or disagreeing with David, given that you hardly ever reply to agree, but it seems obvious that a one-time event that costs less than $10 is, indeed, too little to bring suit. These only become lawsuit-worthy if there are enough aggregate events to surpass the cost of the legal action.

      • David C

        Actually, at Wal-Mart at least, the magic number is $25, not $10.

        http://forums.about.com/n/pfx/forum.aspx?tsn=1&nav=messages&webtag=ab-retailing&tid=14

        As Tim correctly noted, the collateral damage from not punishing somebody can be significantly higher than whatever the defendant is being charged with. These unknown costs should be incorporated into the true cost when making a final decision. But even with all that in mind, I doubt the slight reduction in lying is worth all the expense.

        And I wouldn’t be opposed to banning lawsuits on items worth less than $10. The most that should be done is confinement for a few hours if the police spot the attempt.

      • http://pdf23ds.net pdf23ds

        One should be allowed to file a suit on behalf of a large group of people who were all similarly harmed by a $10 (or 50 cent) product.

        Anyway, if you buy a $10 pressure cooker and it explodes under normal use, causing you severe injury, you should be able to sue.

    • Joe

      Robin, the slippery slope I referred to was that of telling putative “white lies” which actually become self-serving and do harm. NOT the slippery slope of legal remedies to every ill.
      How do I know which harmful behaviors should be “discouraged” by laws? I don’t, I simply speculated on some reasons why trying to ban “lying” would be impractical. In my own life I find that the most effective “lies” that drive me crazy are either accompanied by self-delusion or are “not technically lies” — ie bullshit. A person who can not assimilate delusions OR lie and bullshit would have no career in many fields, so the arms race must continue unless uniform disarmament is possible. C’est la vie.

  • Robert Koslover

    Usually, such lying is for a purpose. If the person lying about his/her war medals uses those lies to secure any kind of tangible advantage, assets, or similar benefits, then it is quite possibly at the expense of someone else. In that case, I believe that the liar may be charged with fraud, which is very definitely a crime.

    • http://hanson.gmu.edu Robin Hanson

      The problem is the requirement that you show you were financially harmed to sue for fraud.

      • Robert Koslover

        Even so, I think that still covers a very wide range of circumstances.

      • brazil84

        Isn’t this a criminal statute?

  • Will

    I think Joe brings up an important point, but as you say Robin, just assigning the role of deterring harmful behaviors to extra legal mechanisms and social institutions doesn’t fully solve the problem. Clearly a line has to be drawn somewhere; either we punish all harmful behavior with the legal system, punish all with a social system, capriciously decide based on no consistent criteria, or we come up with a good rationale why some behaviors are punished legally and others are not. This is not as easy a choice as most libertarians/authoritarians would have us believe.

    Financial harm seems to be a decent criterion – its objectively measurable, we all agree more or less that it’s a bad thing, and causation is (relatively) easy to determine. Emotional harm is almost impossible to measure objectively for now, and we don’t all even agree that it’s a bad thing. For example, when a teacher chastises a misbehaving child, should they face recrimination for making the child unhappy? The situation gets even more unpleasant when you start playing moral games or talk about “offending the ideals of american servicemen” etc. I’m pretty content to leave the line at financial harm for now, but I’m open to other criteria.

  • http://jaltcoh.blogspot.com jaltcoh

    the basic rationale for free speech, finding truth via open competition, hardly endorses straight lies!

    There’s where you’re wrong. The finding-truth-through-open-competition rationale for legally protecting free speech does endorse the protection of lies. The question isn’t whether lies themselves are a good thing (so, the issue shouldn’t be framed as whether the government should “endorse[] straight lies”). The question is whether the freedom to tell lies is a good thing. Of course the lies themselves are bad. But the freedom to say what you want is good, because that makes everyone feel free to express themselves, which includes explaining why the lies are lies. There’s the truth-finding function.

    Also, finding truth isn’t the only rationale for legally protecting free speech. There’s a liberty value in being free from government intrusion into speech, aside from the quality of the ideas expressed in that speech.

  • http://www.madprime.org Madeleine Ball

    Making the lie illegal is not the appropriate approach in our current Information Age. If someone lies to me about having won an Olympic medal I think that would be similarly harmful, but it’s easy for me to look up the records online. Military awards & decorations should be placed online in a searchable database so that anyone can check the veracity of a claim.

    Although I would still disagree with the law in the absence of such a solution, the Stolen Valor Act was signed in 2005 — at a time when such a solution was clearly implementable. I think it’s inexcusable laziness to approach the issue by taking away free speech when there hasn’t been an attempt to make the information available (or, if it is, it is not well publicized, for I cannot find it).

    In more abstract terms, one obviously has to consider the broader impact of a law which impinges upon free speech. Even if one feels that such a law would prevent harm, the act of making such a law would set precedent for further narrowing of the first amendment in ways that potentially are harmful. Whether such a risk outweighs the gain is where we probably disagree, but I think it’s even harder to argue that it’s appropriate to take such a risk before trying to implement a database solution.

    • http://hanson.gmu.edu Robin Hanson

      Would you recommend this database solution to all other types of fraud? May products at a grocery store, or a restaurant, be intentionally mislabeled as long as the correct info is available in a database online somewhere?

      • Robert Koslover

        Robin, once again, it seems to me that the example of intentional mislabeling of a product in a store or restaurant could constitute fraud, since it is for the purpose of securing financial gain via deception, i.e., exercising “bad faith” in a contract/transaction. Maybe we don’t need new laws against lying; just solid enforcement of existing laws against fraud?

      • http://www.madprime.org Madeleine Ball

        You’re contradicting your own opinion by creating an example that clearly involves financial harm.

      • http://www.madprime.org Madeleine Ball

        I’m going to reply one more time to this. No, I don’t believe the database solution is appropriate when the “lying” involved causes financial harm, aka “fraud”. I have yet to hear of an example from you of “lying” which is not “fraud” that I don’t think could be addressed with a database.

        Not every truth should have a database, not all lies are wrong. Sometimes lies protect people from harm.

        Many people choose to lie about their sexual orientation. This can harm others in a nonfinancial way – I’ve embarrassed myself by heavily flirting with a man I later learned was gay. Should that lie be illegal? Should there be a database? He should have been confident in a lack of negative repercussion if he were truthful, and I’m disappointed that he wasn’t, but I’m sure we would all agree that it would be odious to implement either a database or legal “solution”.

        So maybe the line we draw regarding “database” is whether lies are regarding information of a public nature, rather than private?

        How about this:
        If a lie causes financial harm, it is “fraud” and illegal.
        If a lie does not do this, but is information of a public nature, the lie can be discouraged by making that information easily accessible with a database.
        If a lie causes no financial harm and is of a private nature, there should be no database.

        I’m having trouble thinking of a lie that causes financial harm and is of a private nature. Maybe someone else can.

      • Doug S.

        I’m having trouble thinking of a lie that causes financial harm and is of a private nature. Maybe someone else can.

        “I don’t have HIV.”

  • Proper Dave (previously Dan)

    Isn’t this kind of the same thing as a trademark… Obviously trademark misuse isn’t free speech.
    Medals are special awards/certification with apparent high social value/prestige, if not necessarily monetary. So shouldn’t the government protects its “trademarks” with high value?

    What of academic qualifications/certifications are I allowed to lie about that too in some cases?

  • Matt

    I think this a slippery slope because of the ensuing arguments about what is a lie and what is not. But I don’t think I really understand your premise.
    If I said these things:
    Global warming is complete B.S.
    George W. Bush is a Nazi
    I lost my virginity when I was 18
    I played Varsity basketball when I was in high school
    I know how to change my spark plugs
    None of these things are completely true. Some are completely false. Which ones will I be punished for?

    • Robert Koslover

      Sure, I’ll bite:
      (1) If you claim that you played varsity basketball when in high school, as part of a job application to (for example) coach basketball or to write a sports column, then you are guilty of misrepresenting your credentials. If discovered after hiring, this could be grounds for your dismissal. And if for some reason big money were involved, I think you could be charged with fraud too.
      (2) If you falsely claim you know how to change your spark plugs as part of a job application to work as an auto mechanic… same reasoning as above.
      (3) It seems less likely, but not impossible, that the other lies you mentioned could also be actionable as fraud. It would depend on the context! For example, if you insincerely asserted that George W. Bush was a Nazi so as to improve your odds of being hired as a writer for the Huffington Post or as an editor at Time magazine or as a newscaster for MSNBC, then… well, you get the idea.

  • Stuart Armstrong

    But who wants to publicly signal they are bad at lying or at detecting lies?

    I’m bad a lying and detecting lies.

    But before jumping to the signalling suggestion, why not simply observe that goverment-enforced compulsory speech on certain subjects has a rather poor track record? British libel laws, and anti holocaust-denial legislation, seems about as far as a developed democracy can stretch this (in terms of actually enforced laws, not just the eminently theoretical anti-blasphemy laws).

    I’ll admit most people seem to disagree, preferring no legal penalty for non-financial-harm lies.

    I think that’s an American thing; people here (UK) seem more accepting of legal penalties on lies (we had a precisely similar situation here recently, in fact).

    • loqi

      But before jumping to the signalling suggestion, why not simply observe that goverment-enforced compulsory speech on certain subjects has a rather poor track record?

      I wonder how Robin would explain his apparent fondness for “inside view” explanations involving signaling and social interactions, when they conflict with commonly-held “outside view” beliefs such as the above. Perhaps something along these lines?

      Excess inside viewing usually continues even after folks are warned that outside viewing works better; after all, inside viewing better show offs inside knowledge and abilities.

  • tim

    What a trite and petty law. Why go after little lies like non-existent medals when great big huge lies, repeated over and over again on television and radio, cause far more damage? Recent examples could include Sarah Palin’s “death panels”, the GOP charge of Obama’s “socialism” (please, I live in Canada), and most of what any politician says in any speech ever (has there ever been an entirely truthful State of the Union? I really doubt it). Surely lying about medals does far less harm than lies that swing massive voting blocs.

    • http://www.doesthinkingmatter.com/ thinking…

      When Billy saw the light and recognized what a horrible person he was he didn’t volunteer to go serve at an orphanage in Timbuktu because he knew that he wouldn’t make it. He was still too weak. He knew he had to slowly improve his character and, while not ignoring his largest faults, he first worked on improving his smaller bad habits until he developed the awareness and willpower that allowed him to truly change.

      Orville and Wilbur’s ambitions were petty – they should’ve tried for Mars on the first shot.

  • Greg Conen

    Taking no position on the philosophical issue, legal precedent gives false statements of fact receive less protection (at least if the speaker knows the statements are false), even when no monetary damages are present. Look at the false light tort.

  • http://www.mobiles-free.com jad jar

    Maybe people want to reduce the risk incurred by sending false signals. Say lying is basically a gamble: if you win, you signal your high status; if you lose, you signal your low status. Weakening those low-status signals from losing increases the expected return.

  • Lo Statuz

    Robin Hanson asks “who wants to publicly signal they are bad at lying or at detecting lies?”
    One theory is that we evolved blushing precisely to make deception harder.

    As for medals and other credentials, digital signatures should make it possible to check them in realtime
    without network access in most cases.

  • Lee Kelly

    So what you’re saying is that politics should be illegal?

  • Robert Ayers

    I tend to frame the issue not as “should lying be legal” but as “should prosecutors or people with lawyers be able to inflict ruinous legal costs on speakers that they disagree with”.
    I feel the same way about libel laws.

  • Morgan

    I think there needs to be a distinction here between mere lying, as an exaggeration of credentials (like padding a resume, impressing a lady at the bar) and outright impersonation. There are laws against impersonating police officers and doctors aren’t there? If a person claims he has a medal, but doesn’t, isn’t he impersonating a war hero? I can see where pretending to be a doctor or policeman could compromise safety and be dangerous.

    Misrepresenting yourself as a war hero doesn’t seem to endanger anyone physically, or cause financial harm, but it does cause harm. This isn’t just an issue of insulting real soldiers’ service to the country, but lying about a government bestowed honor is like claiming all the people in the US think you are worthy and deserving of such. (The government represents the people after all). Real war heroes did a lot to earn their decoration, and it cheapens their award for someone undeserving to claim it also. As an American taxpayer, I expect the honors my government bestows on the behalf of its citizens to go to someone worthy and deserving. Copyright or trademark violation might hurt an individual, or even an entire corporation, so couldn’t it be argued thatlying about a government award insults and hurts the citizens represented by that government, even if it costs us nothing monetarily?

    Even if you consider it as a lie, not an impersonation, it is still a lie affecting the honor of a nation of people. This is the kind of thing, if legislated, should be enforced by giving the offenders a great deal of community service, so they can know what it really means to serve.

    But I see no point at all in making such a law in order to simply protect the public from a lying scumbag. It was no doubt enacted as an honorary gesture to service people.

  • Daublin

    You make a good case, Robin, given an idealized court. However, when it comes to practice, I don’t feel good about a trial where no one involved was directly harmed. The court will end up meting out more punishment than is just, for two reasons.

    The first is that the victim is not there to call the trial off. In practice, many times when someone has legal standing to sue someone else, they don’t bother. They might feel that they have gotten restitution through an outside channel. Or, they might think that the whole matter is a technicality. There is no such check when a government agent is doing the prosecuting. The agent doesn’t have to stop, and indeed might feel compelled to press on as part of their job description.

    The second problem is that such courts use far-mode judgments. If a specific harmed person were there, the members of the court could make judgments about that specific person’s harms. Without such a person present, they have to weigh the harms done to an amorphous set of the general public.

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