Lies are complicated: They’re told by many different speakers for many different reasons to many different listeners with many different consequences. Lies’ legal treatment is similarly complicated: In United States v. Alvarez, all nine U.S. Supreme Court justices agreed (albeit in three different opinions) that the First Amendment permits the government to punish lies that inflict sufficient harm. What the justices didn’t agree upon, however, is what constitutes harm sufficient to justify the government’s intervention. 

The government’s lies are similar to the lies of nongovernmental parties in their frequency, variety, and thus their complexity. But the government’s lies are also different from our own lies in important ways that can and should affect their legal treatment. As I’ve written elsewhere, “[t]he government is unique among speakers because of its coercive power as sovereign, its considerable resources, its privileged access to key information, and its wide variety of speaking roles as policymaker, commander-in-chief, employer, educator, health care provider, property owner, and more.”

Because the government is like no other speaker, its lies sometimes threaten harms different from—and greater than—the harms inflicted by nongovernmental speakers’ lies.  

Because the government is like no other speaker, its lies sometimes threaten harms different from—and greater than—the harms inflicted by nongovernmental speakers’ lies. For these reasons, we may understandably worry more about the government’s lies than we worry about the same sorts of lies delivered by nongovernmental speakers.

And because the government—unlike the rest of us—has no constitutional rights of its own, under some circumstances speech that is protected by the First Amendment when uttered by a nongovernmental speaker may still violate specific constitutional protections when uttered by the government. To be sure, the Supreme Court has recognized that we don’t have a First Amendment right to shut down the government’s speech just because we disagree with it: The government must speak on a wide range of issues and take a variety of policy positions in order to govern. But the constitutional analysis is very different when the government’s speech—including its lies—interferes with or punishes its targets’ exercise of their constitutional rights.

When Do the Government's Lies Violate the Constitution?

The government’s lies violate the Constitution when they deprive the government’s targets of their constitutional rights as effectively as the government’s action. Think, for instance, of law enforcement officers’ lies about the existence of a search warrant to trick their targets into permitting a search of their home. Or governmental lies about the consequences of exercising constitutional rights—like police officers’ false claims that a suspect’s child would be taken away from her unless she waived her rights to a lawyer and to remain silent. Or prosecutors’ lies through fake subpoenas that falsely stated that “[a] fine and imprisonment may be imposed for failure to obey this notice” to deceive crime victims and potential witnesses into coming forward when they otherwise chose not to.

At times, moreover, the government deploys falsehoods as weapons to punish dissenters. And when the government’s lies silence its targets’ speech as effectively as the government’s lawmaking and other regulatory action, those lies also can violate the free speech clause. Consider, for example, government officials’ lies told to encourage their critic’s employer to fire her in retaliation for her speech. Think, too, of lies told by the Mississippi State Sovereignty Commission in the 1950s and 1960s to the employers, friends, families, and neighbors of civil rights workers that falsely accused its targets of criminal and other misconduct in hopes of muzzling their speech advocating desegregation.

This invites a range of questions about the causal connection between the government’s lies and the deprivation of a constitutional right:  Would governmental lies about the dangerousness of an individual that puts that individual on a no-fly list deprive that individual of the liberty to travel in violation of the due process clause (which bars the government from denying “life, liberty, or property without due process of law”)? Would governmental falsehoods that a hurricane threatens a specific state violate the due process clause if it causes individuals or emergency responders to change their behavior in ways that lead to loss of life or property? Would governmental lies misrepresenting the medical risks of abortion sufficiently interfere with women’s reproductive rights to violate the due process clause?

Of course, some of us will be quicker than others to find that causal connection. My point is simply that the government’s lies sometimes deny its targets’ rights and opportunities in violation of the Constitution, even though at times we will disagree about when this is so.

And to be sure, many governmental lies—like the government’s lies to avoid political and legal accountability for its misconduct—may inflict more diffuse and less tangible harm, such that it may be hard to trace a causal connection between the government’s speech and the denial of a specific constitutional right. That these lies’ harms are intangible or diffuse, however, does not mean that they’re painless or unimportant: They are instead often deeply dangerous, threatening to corrode our democracy. But constitutional law often has limited capacity to address diffuse, collective, or causally complicated harms. As I’ve written elsewhere, “[t]hese complexities suggest that the government’s most catastrophic lies may be those especially resistant to redress.”

Other Responses to the Government’s Lies

But constitutional litigation is by no means the only way to remedy the government’s lies.

Legislatures can enact laws that constrain the speech of governmental bodies, along with the public officials empowered to speak for those bodies. Statutes, for example, can require government officials to tell the truth in specific settings: Consider Illinois’ newly enacted law that bars law enforcement officers from engaging in deceptive practices when interrogating minors, like falsely stating that incriminating evidence exists or making false promises of leniency. Some statutes forbid certain lies by governmental and nongovernmental speakers alike—as is the case of laws punishing lies under oath or lies that obstruct justice, or the federal law that prohibits fake weather forecasts “falsely representing such forecast or warning to have been issued or published by” a government agency, or laws like the Federal False Statements Act that prohibit lies to federal government officials told to influence their decision-making.

Legislatures can also engage in speech of their own to counter destructive governmental lies. Examples include vigorous oversight of public officials and agencies alleged to have engaged in deceit; resolutions censuring government officials for their lies and related misconduct (like the Senate’s 1954 censure of Joe McCarthy); and—in circumstances involving federal judges and certain other federal officials—impeachment and conviction (like Congress’ 2010 impeachment and conviction of a federal judge in part for his lies to cover up the fact that he had received kickbacks).

Legislatures can also enact laws to prohibit retaliation against the whistleblowers who help expose the government’s lies and other misconduct.  So, too, can reporting by a free and vigorous press reveal and confront the government’s lies. And of course the people themselves can challenge governmental lies through their protest and through their political choices.

Each of these remedies has its limitations. At the same time, however, the range of available responses to the government’s lies is far from a null set. I sketch these possibilities in hopes that it may provoke us to identify and implement a variety of mechanisms for holding the government accountable for its damaging lies.

To hear more from Helen Norton, be sure to attend the Government Lies roundtable on Jan. 28, 1-2:30 p.m. EST. RSVP here.