Cass R. Sunstein, Does the First Amendment Protect Falsehoods? A Framework (Dec. 5, 2022).
Abstract: Are falsehoods protected by the First Amendment? To answer that question, we need a framework. Four questions matter. The first question involves the speakers’ State of Mind (and hence their level of culpability). In saying something that is false, people might be (1) lying, (2) reckless, (3) negligent, or (4) reasonable but mistaken. The second question involves the Magnitude of Harm. How much damage is caused by the falsehood? There is a continuum here, but for heuristic purposes, let us say that the damage might be (1) grave, (2) moderate, (3) minor, and (4) nonexistent. The third question involves the Likelihood of Harm. Here too we have a continuum, including (1) certain, (2) probable, (3) improbable, and (4) highly improbable. The fourth and final question involves the Timing of Harm. Yet again there is a continuum, but for heuristic purposes, it might be (1) imminent, in the sense of occurring immediately, (2) imminent, in the sense of the occurring in the near future, (3) occurring not in the near future but reasonably soon, or (4) occurring in the distant future. As we shift from the four sets of (1) to the four sets of (4), the argument for constitutional protection gains force.