High Value Lies, Ugly Truths, and the First Amendment

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory.

Los cinco testamentos de Francisco Xavier Balmis

El reciente hallazgo de los Protocolos Testamentarios Francisco Xavier Balmis (1753-1819), director de la Real Expedición Filantrópica de la Vacuna, constituye una nueva fuente documental para explorar su perfil biográfico. Balmis redactó un total de cinco testamentos que abarcan el periodo de 1803-1818 y coinciden con momentos cruciales de su vida. Su análisis ha permitido establecer interesantes observaciones que certifican su inseguridad personal antes de afrontar la expedición, su desamparo al ser despojado de sus bienes por adherirse a la causa monárquica frente a Napoleón, el consuelo al serle restituidos sus honores y hacienda o la entereza para afrontar sus últimos momentos. Revelan que Balmis supo hacer de la carrera profesional como cirujano militar un instrumento para alcanzar el prestigio social, y desmienten los supuestos sobre un final oscuro. El inventario de sus bienes ratifica su desahogada situación económica y su capacidad para gestionarlos. Las fuentes notariales se acreditan con este caso de Balmis, un funcionario de la Corona, como un ejemplo para el estudio de las oligarquías urbanas del Antiguo Régimen.

Eulogy of Samuel Shapleigh, April 1800

White entitled this document: Oration occasioned by the death of Samuel Shapleigh Esq. who died at Cambridge April 18th, 1800. The eulogy honors Samuel Shapleigh, who graduated with the Harvard College class of 1789 and served as both the Butler and Librarian of Harvard before his death in 1800.

Letter from Stephen Longfellow to Daniel Appleton White, 1799 May 29

Stephen Longfellow wrote this letter in Portland, Maine on May 29, 1799; it was sent to his friend, Daniel Appleton White, in Medford, Massachusetts. In the letter, Longfellow describes the Election Day festivities among the "plebeans" in Portland, which he apparently found both amusing and upsetting. He compares the horses pulling their sleds to Don Quixote's horse, Rocinante. He also writes about mutual friends, including John Henry Tudor and Jabez Kimball, and bemoans the behavior of the current members of Phi Beta Kappa among the Harvard College undergraduates, whom he insists have sunk the society below its former "exalted station."

Salutatory address of Abiel Abbot, 1792

Six-unlined pages containing a handwritten copy of the salutatory address composed by Abiel Abbot in Latin for the 1792 Harvard College Commencement. The text includes edits and struck-through words. The first page includes the title "Autore Abiele Abbot" and has a penciled note: "This must be gr. grandfather's Latin oration when he graduated from Harvard, with honors, in 1792."

Classics of the Western world,

Blank pages for "Notes" (114-122)

A Tribute to a soldier : United States Army Chaplains, Arlington National Cemetery.

Cover title.

Studies on ganglion cells.

The January, 1931 issue of Annals of Surgery honors James Ewing, "one of the leading active pathologists of the world."

Curriculum for Naval Junior Reserve Office Training Corps (NJROTC), NSI-IV, drills, commands, and ceremonies.

"NAVEDTRA 38050."

The Jewish forum.

Vol. 28, no. 9 (Sept. 1935) honors T.G. Masaryk.

The Future of Medicine in South Florida

Fall 2004 copy of FLorida International University Magazine. Feature article on the Honors College's Medical Education Program and the future of medicine in South Florida.