Satta on Free Speech and Falsehoods

Mark Satta, Wayne State University Law School; Wayne State University College of Arts and Sciences, has published Free Speech and Falsehoods. Here is the abstract.

This chapter explores the nature of this relationship between free speech and falsity. It addresses descriptive questions about the extent to which freedom of speech, as a matter of law, typically does and does not protect false claims. It also addresses evaluative questions about the extent to which freedom of speech should and should not protect false claims. The chapter begins with a discussion of three prominent types of false claims that many jurisdictions do not protect as part of free speech: perjury, false advertising, and defamation. Studying these categories of unprotected speech reveals that different kinds of false speech require different levels of mens rea before the false speech loses legal protection. The chapter then turns to the more general question of whether false claims, as a class, should receive less free speech just in virtue of their being false. Addressing this question shows that there are important reasons to provide free speech protection for at least some false statements, while also showing that there are complex and unresolved questions about which false statements should be protected and why. The chapter concludes by asking whether there are other categories of false speech that should be legally unprotected and reflecting on some key conclusions about the legal relationship between free speech and falsehoods.

Download the chapter from SSRN at the link.