I guess I’m swinging for the fences at my first at-bat. Look, I respect Eugene Volokh; he’s really smart, well-practiced as a scholar, and (at least) bilingual – all things I can’t fairly say about myself. But it’s really obnoxious when he announces that his preferred rule of law just happens to benefit those with whom he agrees politically.
There’s a time, and a place, for partisan hackery. Me, I like to do my partisan hackery on the Facebook pages of Republican candidates. So far, I’ve been banned from the pages of Sarah Palin, Michelle Bachmann, Troy King (the former Alabama Attorney General), Bobby Jindal, and Haley Barbour. But I’m also twenty-seven years old and not a law professor at UCLA. I also don’t write for one of the most-trafficked blawgs in the country (although we’re trying). Prof. Volokh should know better.
But then he pops off with something like this. Specifically, he says
I tentatively think such lies may be punished; my view is that there is a general “knowing lies” exception to the First Amendment, albeit with some exceptions-to-the-exception in situations where punishing the lies poses an unacceptable risk of deterring true statements as well (e.g., lies about science and history, and “seditious libel,” which is to say lies about the government).
Let’s set aside the question of whether the First Amendment should protect false statements. I honestly don’t have a strong opinion about that. My concern is with Prof. Volokh’s “exceptions-to-the-exception,” where he uses the “chilling effect” rationale to justify including some types of lies within the First Amendment’s ambit. Specifically, “lies about science and history.”
What does this refer to? Well, for those of you who don’t know Prof. Volokh’s opinions, you’ll find, if you look, that he’s a “libertarian,” also known as “someone who thinks the world operates according to what he learned in Economics 101.” While Prof. Volokh is generally principled enough to reject Republican orthodoxy when he actually disagrees with it, there is one issue where he appears to toe the party line (presumably because he believes it): the causes and remedies of climate change.
In fairness, Prof. Volokh himself doesn’t speak much to climate change; most of that water at VC is carried by Jonathan Adler of Case Western Reserve. Prof. Volokh’s never said he disagrees with Prof. Adler, and while that probably means nothing, I’m going to make great hay out of it because it serves my purpose.
…I’m pretty sure I wasn’t supposed to say that last part out loud.
Anyway, look; giving “lies about science and history” First Amendment protection when you exclude that protection from other lies is a serious problem. The people who lie about science and history are, overwhelmingly, pushing a politically conservative agenda. For example, Media Matters for America routinely records false or misleading statements about science by conservatives – statements that are so easily fact-checked as to almost certainly qualify as “knowing lies.” While MM4A doesn’t break out statements about history separately, but Dennis G. at Balloon-Juice has repeatedly debunked the prevailing narratives of the Civil War, a story also told by James Loewen, again and again.
Let me explain this again: those who lie about science and history are those whose sole purpose in lying is to perpetuate existing power structures and prevent racial reconciliation. And while I agree with Prof. Volokh that “stupid” probably should be protected by the First Amendment, I’m troubled by his insistence that “knowing lies” that just happen to serve his allies’ political agenda would be protected, while other knowing lies are not. Ultimately, if your “principles” are nothing more than an excuse for you to suppress speech you don’t like while speech you agree with gets a free pass, you don’t have “principles.”
But again, nothing but respect for Prof. Volokh.