Why Allow Lies?

Jonathan Turley wants to keep lies legal:

Alvarez … is a liar. … After his election to a water board in California, he introduced himself at a public meeting as “a retired Marine of 25 years,” a repeatedly wounded warrior and a Medal of Honor recipient. … He was found out, publicly ridiculed and hounded out of office. … [He is] one of the first people prosecuted under the Stolen Valor Act, … [which] makes it a crime to falsely claim “to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” …

The problem with the law they may have broken is not just that it is unnecessary, but that it can be dangerous to criminalize lies. After all, with the power to punish a lie comes the power to define the truth — a risky occupation for any government. … Now the [Alvarez] case will go to the Supreme Court, where the Obama administration will argue that the First Amendment does not protect lies as it does true statements. …

Chief Judge Alex Kozinski balked at the notion that lies can be crimes in a society saturated by untruths. “Saints,” he noted, “may always tell the truth, but for mortals living means lying.” Kozinski is supported by a host of studies on the human propensity, even necessity, to lie. … The dividing line in the law has always been fraud or related crimes — using lies to gain money or benefits. … But the Stolen Valor Act was designed to address cases in which the individual is not deriving financial gain or other benefits; rather, the law punishes the boast or the brag itself. …

If it is harmful to lie about soldiers, what about lying about being a former police officer or a former firefighter? How about lying about politicians or religion or terrorism? Once we criminalize lies, someone must determine what is a lie and what is harmless embellishment. … The First Amendment protects … the right of everyone to speak, even when they may be called liars. As for our heroes, they are no more diminished by pathetic pretenders than top singers are diminished by bad karoke. We know the real thing when we see it. (more)

Turley’s arguments are surprisingly weak. We needn’t let government set the truth on all topics to outlaw very clear cases of lying. Lies being common in social talk doesn’t require us to legalize all lies. We surely do not all instantly “know they real thing when we see it.” Even if the harm from lies isn’t monetary, it is clearly real harm. And we already outlaw non-monetary lies to the government.

This seems to me more about feeling that a line has been crossed, such as with a sense of appropriate social spheres. In sex and friendship, we seem to prefer that those who are not socially savvy or well-connected suffer from lies by those who are more clever and connected, at least relative to letting law get involved. It is mainly when we see dominance, via money, business, or government, that we want to outlaw lies.

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  • rpl

    It’s interesting that you chose to frame the question as “Why allow lies?” We could just as easily ask, “Why prohibit lies?” Lies that cause demonstrable harm to some other person are already criminalized as fraud, so the intent of this statute is presumably to criminalize lies that do not rise to the level of fraud. Why? Moreover, it only criminalizes a specific class of lies. Alvarez could have claimed to be an award-winning brain surgeon, and (so long as he doesn’t actually attempt any brain surgery) he would have been in the clear. Why the unequal treatment? Indeed, you can’t even argue that we’re criminalizing the behavior that most impedes voters’ evaluation of candidates, since lies about political experience, or campaign promises that turn out to be lies, are not covered. Why? If you start with the presumption that people wishing to outlaw something must provide a good reason why it should be outlawed, instead of your framing, which implies the opposite, then the Stolen Valor Act leaves a lot of whys unanswered.

    Of course, we know that real answer to all those whys. It’s that we have an emotional response to military matters that we don’t have to all those other subjects. Claiming military honors offends a lot of people in a way that claiming honors for other subjects doesn’t. Personally, I think that outlawing things merely because they offend people is a bad idea (and unnecessary–you’ll note that the offender in this case got his comeuppance even before the law was applied), but that’s another argument. The point is, you never even get around to discussing it if you frame the question as “Why allow…?” rather than “Why prohibit…?”

    • Richard Silliker

      The question Why is inappropriate and potentially misleading. Perhaps “should we allow lies” would have been a better choice.

      When why has been answered it is followed by another why until the questioner gets the answer they like. Not necessarily the truth but a convenient truth.

      Cause is very hard to find.

    • mjay

      http://discuss.epluribusmedia.net/how_fox_justifies_news_distortions

      If lying to milions via the news media is not illegal, why should lying to a handful of people be illegal?

      • richard silliker

        See above.

  • http://www.dumbagent.com Rebecca

    I have to say I’m with rpl on this one.

    “Offense” always makes me think of that hated word “fair”. What is offensive to one person is not to another, and trying to regulate that will only cause further offense (and, indeed, unfairness).

    There is also the fact that making something illegal has never made it go away. In fact has rarely decreased its existence or occurrence. I have rarely seen a society in which the military is so well-respected as it is in the US, and I think people will continue to laugh and scorn such posers out of office, without the need for courts and laws to intervene.

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

    rpl, I’m fine with outlawing lies about brain surgery, and in fact all clear lies about professional achievement.

    Rebecca, so you’d really prefer that nothing were illegal? Immediately?

    • rpl

      Ok, fair enough. That still doesn’t answer the question of why these lies (expanded to encompass all professional achievements) should be prohibited. Given that actual fraud is already illegal and that the problem of lesser lies seems to be self-policing, what’s the social benefit to such a law? What’s the argument that these benefits outweigh the potential for abuse, chilling effect, accidental criminalization of legitimate behavior, and so on?

      Also, do you think that a general ban on lies about professional achievement would enjoy the same level of support in Congress and among voters that the SVA has enjoyed? I expect it would not. Presumably that indicates that the actual purpose of the act is not to punish or even deter lying per se, but to signal a certain societal attitude toward the military. So, once again, we should ask ourselves, “Is this a valid thing for government to be doing?”

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

      rpl, not all harm is financial, and the self-policing is pretty limited.

      • Gulliver

        @ Robin Hanson

        not all harm is financial,

        Okay, but if you want us to accept that lies should be outlawed because some harm could be done, you’ll have to point to some concrete harm. Fraud is illegal because it harms the person(s) being defrauded.

        and the self-policing is pretty limited.

        Then make it less so. Medals and military service are a matter of public record. Someone has to find out about the lie to enforce the SVA anyway. If the government is ferreting out these lies to enforce the law because not enough citizens care to do out them, then those same government investigators could simply publish the “valor thieves” for public shaming. Outlawing lying is superfluous unless is specifically protects someone or some group. How does this law do anything other than try to police morality? For that matter, what would a law against claiming to be a brain surgeon when not actually trying to perform surgery protect anyone from other than being lied to? Are you really in favor of punishing some loon because he claims he’s the King of Scotland?

  • Khoth

    Are clear lies about professional achievement for purposes other than fraud actually a major problem?

    I take the view that the burden of proof is on those proposing to make something illegal, not on those proposing to make something legal.

    So, what should a law against lies look like, and why?

  • brendan

    If my hypothetical fiance lied about cheating on me, it’d harm me a lot. The lie would be no less provable than any offense that we outlaw. But the reason I wouldn’t want the law involved is that it’d feel shameful to have the government enforce what I should have been able to.

    So my explanation is that the victim of a lie in a sex/friendship relationship does not want a legal remedy because it makes them look weak. I assume its tough for a law to exist if victims don’t demand it.

    • Wonks Anonymous

      “I assume its tough for a law to exist if victims don’t demand it.”
      Ever heard of victimless crimes?

      I’m definitely against Robin’s proposal, but my opinions are divergent enough from normal that it isn’t very informative as to why the rest of society favors a particular set of rules.

      • KPres

        “Ever heard of victimless crimes?”

        Yep. They’re a consequence of the collectivist/utlitarian attitudes so popular these days. After all, if enough people believe an action is harming themselves or society at-large in some way, then who’s to say, under those particular philosophies, that it’s not?

  • Douglas Knight

    We already let the government define truth too much. The government defines “organic” rather than letting competing definitions establish brands and trademarks, the way Kosher food and schools of Yoga do. The Marines and the Medal of Honor are government brands, so it makes sense for the government to defend them, though I’d prefer it used trademark law, rather than its special criminal powers, but it doesn’t seem like a big difference.

    I don’t know why the government co-option of “organic” took the wind out of its sails. Here are some possibilities: 1. coordinating on a new name is very hard; 2. fear of the same outcome of loss of the brand; 3. retailers now act as different brands of “organic”; 4. it was an arms race that was usefully terminated by the government and people have learned their lesson and don’t want to restart it.

    • komponisto

      The Marines and the Medal of Honor are government brands, so it makes sense for the government to defend them…I’d prefer it used trademark law

      Nice third alternative to the policy tug-of-war here.

  • http://www.cawtech.freeserve.co.uk/ Alan Crowe

    Beware of lost purposes. Do we believe in freedom of speech because we find merit in people being able to say: “I won a medal.”? Err, no, not exactly. We believe that those who have won medals should be able to tell us that they have done so. The difference comes out we we use Bayes rule to decode speech acts.

    Mr A says that he has won a medal and we want to calculate P(win|say). We want to calculate the probability that Mr. A won a medal given that he says that he won a medal. P(win|say) = P(say|win)P(win)/P(say).

    The denominator is the tricky bit P(say) = P(say|win)P(win) + P(say|-win)P(-win). And within the denominator P(say|-win) is the contentious factor. Picture a world in which it is difficult to check the official record and in which it is common for people to abuse this and to declare that they have a medal when actually they don’t.

    This is a world in which P(win|say) is low, because so many persons are lying. It is, rather distressingly, a world in which those who have won a medal cannot tell us. They can say the words, but the message doesn’t get through, because we think that they are lying, just like many others.

    We cherish freedom of speech because we would like those who have won a medal to be able to tell us. The freedom to lie undermines our actual goal. If we are to justify the freedom to lie, we must justify it despite the harm it does to freedom of speech that we actually cherish. We cannot justify the freedom to lie as part of freedom of speech.

    I don’t think it is at all hard to justify the freedom to lie, despite the harm that it does to freedom of speech. There is an obvious way for government to dismember the kind of freedom of speech that we cherish. Government has simply to legislate high standards of honesty and then apply the law unevenly, putting its opponents on trial and forcing them to prove the truth of everything they say. Meanwhile the government finds no fault even in the most doubtful utterances of its supporters.

    But having made this argument, we are then stuck with the limitations of what it proves. Some matters can be resolved beyond all doubt. Has Mr A won a medal? We look for his name in the official book of medal winners and then we know. We don’t want to permit lies, because lies damage the freedom of speech. We are forced to permit lies in less certain matters, by the argument in the previous paragraph. But I see no reason why we should tolerate them in the matter of medal-winning. A love of Freedom of Speech, correctly understood, motivates the prosecution of lies, not their tolerance.

  • http://daedalus2u.blogspot.com/ daedalus2u

    The problem with criminalizing any speech, even lies, is that it will be used by government to censor speech they don’t like by defining what the truth is by fiat instead of by examination of facts.

    Santorum is on record as saying that AGW is a hoax, a grand conspiracy by climate scientists and believes that climate scientists who say otherwise are lying and if lying were illegal, then a Santorum Justice Department would prosecute climate scientists who say AGW is real.

    That is exactly what Virginia Attorney General Ken Cuccinelli tried to do to Michael E. Mann.

    http://en.wikipedia.org/wiki/Attorney_General_of_Virginia%27s_climate_science_investigation

    • Wonks Anonymous

      I agree with your overall point, but your example doesn’t exactly match up. Mann was not actually charged with anything, and the investigation was for civil fraud on the state of Virginia rather than mere statements that somebody thinks are lies. I think a better example might be Bernard Lewis, who was prosecuted in France for denying the Armenian genocide. He relies on the Turkey for a lot of his research on old Ottoman records, and in that country it is illegal to say that genocide did happen. So two governments are mandating different versions of the historical truth and nobody can legally maintain one position on it simultaneously in both!

    • http://daedalus2u.blogspot.com/ daedalus2u

      The point I was trying to make was that here is an overly zealous prosecutor who is trying to “get” Mann because Mann published something he didn’t like (the hockey stick graph).

      It was very much like the Star investigations of Clinton. They were looking for anything they could “get” him on.

      Just the investigation can bankrupt people under investigation. The stress of it will shorten people’s lives and prevent them from doing things that are productive. Which is the whole point, to use the law as a weapon to suppress opponents.

      • KPres

        Actually, Cuccinelli did exactly what he should have done, given that the hockey stick graph was such an egregiously misrepresentative model that it’s highly unlikely to have been unintentional. I take it you think scientists at publicly funded universities should be allowed to falsify data all they want in search of public grants, and that such action, under the guise of free speech, doesn’t constitute fraud against the public in any way. Especially if the topic happens to be politically sensitive. Those are the transgressions we should ignore the most, eh?

        “Just the investigation can bankrupt people under investigation.”

        Of course, that didn’t happen, though it apparently doesn’t stop you from claiming it as evidence of an “overzealous prosecutor”. Hey, there’s no evidence, but hypothetically it could have been, right? Seems like your accusation is the only overzealous one I’m seeing.

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