Introduction

That we have government at all is largely because we distrust each other: At its best, government establishes and enforces the rule of law to create the conditions that enable all sorts of valuable endeavors. But even as we need our government to protect us from each other, we also need to protect ourselves from our government. For this reason, the American constitutional tradition tells a story of simultaneous distrust of the people and of the government.

First Amendment law exemplifies this tradition of distrust. While courts and commentators have long posited that speech deserves constitutional protection when it is affirmatively valuable in facilitating democratic self-governance, enlightenment, and individual autonomy, the First Amendment tradition also relies on what many call a negative theory of the Free Speech Clause. Under this approach, the Constitution protects speech not so much because it is so valuable, but instead because the government is so dangerous in its capacity to abuse its regulatory power. Negative free speech theory thus understands the First Amendment to be more about our fears of the government than about our affirmative aspirations of the good. (At the same time, “negative” and “affirmative” First Amendment theories are not mutually exclusive, and courts and commentators commonly rely on multiple theories rather than insisting on any one free speech theory to the exclusion of all others. )

In short, negative First Amendment theory is about a negative value: distrust of government. And because the government gives us plenty of reason to distrust it, negative theory packs substantial power.

The many examples of negative theory at work include United States v. Alvarez, where a divided Supreme Court invalidated the federal Stolen Valor Act, a law that punished intentional falsehoods about receiving military honors. That case required the Court to consider a speaker’s criminal conviction for his self-aggrandizing lie that he had received the Congressional Medal of Honor. Although all parties agreed that that law neither punished nor chilled any valuable speech, the plurality relied on negative theory—that is, a focus on constraining the government rather than protecting worthy speech—to uphold the First Amendment challenge:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth.

It’s easiest to see negative theory in action when the Court strikes down the government’s regulation of speech viewed as having no affirmative value, as was the case of the lies about military service in Alvarez. But negative theory increasingly dominates the contemporary Court’s approach to a wide range of other First Amendment problems.

In Reed v. Gilbert, for instance, the majority relied on negative theory when it announced that it would apply strict scrutiny to all content- and speaker-based distinctions even absent evidence of the government’s malign motive. Reed struck down, on Free Speech Clause grounds, a town’s sign ordinance that prohibited some signs and permitted others in sufficiently counterintuitive ways that all of the justices found that the ordinance failed even rational basis scrutiny. Even so, the majority announced more broadly that it would apply strict scrutiny whenever the government distinguished between speech based on content—making no effort to explain and distinguish the many instances where the government has long made content-based distinctions without triggering First Amendment attention (much less suspicion). In contrast, Justices Breyer’s and Kagan’s concurrences doubted the wisdom of this sweeping bright-line rule, describing it as inconsistent with longstanding precedent and practice.

In my view, Breyer and Kagan were right to resist. Negative theory, like any free speech theory, needs limiting principles that explain when the government’s regulation of expression is constitutionally permissible—and when it is not. Without limits, negative theory always militates against the government’s regulation of speech even though a completely absolutist approach is both costly and unworkable, stripping elected officials of the ability to solve pressing public problems. In other words, negative theory serves as a guardrail on government, but negative theory warrants guardrails of its own to prevent the paralysis that accompanies unbounded distrust. We need both to protect ourselves from the government and to empower the government to serve and protect us.

But when does the government deserve our distrust—or our trust? As ethicist and political scientist Russell Hardin observed, our choices to trust or distrust are largely informed by inductive reasoning—that is, by our own past experience of “the motivation of the potentially trusted person to attend to the truster’s interests and his or her competence to do so.” Trust and distrust are necessarily both episodic and comparative assessments: Whether we trust (or distrust) a specific actor turns on large part on when we’re asked and compared to whom. Changes over time and technology can alter our experience and thus change the subjects of our distrust. And although our experience frequently leads us to distrust the government (and that there are many government actors only complicates these assessments), sometimes our experience leads us to distrust powerful private speakers even more.

Adding to the complexity of these assessments, a “central problem with trust and distrust is that they are essentially cognitive assessments of the trustworthiness of the other party and may therefore be mistaken” through both false positives and false negatives. This leads political scientist Deborah Welch Larson to urge that we “assess the epistemological basis for our distrust. Where there is a possibility that distrust is based on snap judgments or automatic stereotyping, we might try to calculate the other’s interests and assess the other’s past behavior.”

Related to the question of when to apply negative theory is the question of how to use negative theory. For example, courts can use negative theory as a rule of decision itself: Under this approach, courts apply strict scrutiny to strike down the government’s restriction of speech when they see evidence of the government’s untrustworthy motive or incompetence—regardless of the regulated expression’s lack of affirmative value. Or courts can instead use negative theory as a tiebreaker when various free speech theories point in different directions: Under these circumstances, one could choose to apply negative theory as a tiebreaker such that close cases always go against the government. Or courts can instead include negative theory as one of several factors in a balancing analysis where they weigh the harm threatened by the contested expression against the risk that the government will enforce the law in a partisan or clumsy manner.

In this essay, I examine the relationship between negative First Amendment theory and the government’s regulation of lies. As a descriptive matter, I highlight the prevalence and power of negative theory when assessing the constitutionality of laws restricting lies. And as a prescriptive matter, I suggest that the principled application of negative theory—rooted, as it is, in distrust of the government’s potential for regulatory overreach and abuse—requires that we attend to the inductive nature of distrust. More specifically, I propose that the principled application of negative theory requires us to ask, rather than assume, whether the government is regulating in a context where it is especially dangerous because of its malignance or clumsiness, or where its enforcement discretion is unbounded. Conversely, negative theory should pack less power in settings where the government’s discretion is limited, where we don’t see evidence of its self-interest or incompetence, or where listeners can’t protect themselves from powerful private speakers such that we distrust nongovernmental parties even more than the government.

Triggers for Distrust: Signs of the government’s malign motives or incompetence

To say that we distrust the government to regulate in a certain area means that experience leads us to believe that the government in that setting does not have trustworthy intentions or that it is not competent. When does our experience support those conclusions? That distrust is an inductive concept based on our experience with the subject’s motives and competence (and is thus both episodic and comparative) suggests the value of looking for factors (or triggers) that increase our distrust of the government, as well as factors (or contraindications) that ameliorate our distrust.

Legal scholar Ronald Cass viewed negative First Amendment theory itself as a type of inductive reasoning that requires us, first, to identify the specific historic governmental abuses that inspired distrust and thus the ratification of the First Amendment; second, to identify the key characteristics shared by those historic governmental abuses; and, finally, to apply negative First Amendment theory to curb contemporary government actions that appropriately trigger our distrust because they display those same characteristics.

Characterizing the original understanding of the speech and press clauses in negative theory terms as “a modest damage-control effort; not concerned broadly with speech, but designed to place some regulation beyond government’s power,” Cass identified press licensing and seditious libel as the historical governmental abuses of power that particularly troubled the framers. He then identified the key characteristics shared by those abuses to be certain dangerous governmental motives: its self-interest—i.e., the government’s suppression of criticism for partisan or other self-protective reasons—and its intolerance of unorthodox or uncomfortable ideas.

The government’s regulation of speech should thus leave us more or less distrustful depending on whether it occurs in a setting when we have more or less reason to worry about its self-interested or intolerant motive. Emphasizing that the framers’ negative theory concerns did not extend to all government regulation of speech, Cass explained that:

These principles do not so much mandate outcomes as allow courts to worry about the right issues: Is the speech regulation a product of personal dislike, pique, or whim on the part of government officials? Is it the product of intolerance for the message conveyed? Or is it an ordinary exercise of government’s power to regulate activities so as to avoid harm? These principles do not firmly tie judges’ hands in deciding speech controversies. … Courts still must in effect balance the costs and benefits of particular speech regulations.

Recall too Hardin’s work, which suggests that the government’s regulation of speech should trigger our distrust when we have reason to worry about its competence (as well as its motives). Negative free speech theory thus appropriately attends to settings where the government might overestimate expression’s danger because of its limited information or expertise, or where governmental decision-makers are especially vulnerable to cognitive and emotional biases. Here too, experience can illuminate the government’s competence as well as motives.

Along these lines, the majority and concurring opinions in Reed v. Gilbert both searched for signals of the government’s untrustworthy motives—but fingered very different triggers for the application of negative theory to solve Free Speech Clause problems. On one hand, the majority identified the government’s content-based speech distinctions, by themselves, as triggers for distrust and the application of strict scrutiny (the doctrinal expression of courts’ distrust of government’s regulatory efforts). In so doing, the majority emphasized its fear that future officials would exploit content-based distinctions for self-interested purposes even if contemporary officials had no such intent:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws—i.e., the “abridge[ment] of speech”—rather than merely the motives of those who enacted them.

On the other hand, Justices Kagan’s and Breyer’s concurring opinions protested that negative theory should not control the Court’s doctrine absent more specific indications of the government’s self-interest or intolerance. They urged very different triggers for distrust of government’s regulatory efforts: the government’s viewpoint-based distinctions and its restriction of an entire topic in public discourse.

Rejecting the majority’s reflexive reliance on negative theory, Justice Kagan suggested the value of “common sense” for identifying additional circumstances that should trigger courts’ distrust of the government’s regulatory efforts (that is, circumstances involving any “‘realistic possibility that official suppression of ideas is afoot’” ). Common sense, as historian Sophia Rosenfeld explains, itself reflects inductive reasoning as it stems from our “common experiences and shared faculties as humans.”

Triggers for Distrust: The government’s unbounded discretion

The breadth and malleability of the government’s interventions can enable regulatory abuse by a partisan or clumsy government. For this reason, as the Alvarez opinions make clear, laws that restrict lies by conferring the government with unbounded discretion trigger the Court’s distrust. The Alvarez plurality sought to mitigate these concerns by requiring the government to tether its regulation to lies that threaten certain harms and tailor such regulation to those settings and audiences where those harms are more likely. Justice Breyer’s concurrence (joined by Justice Kagan) similarly emphasized the dangers of governmental regulation untethered to harm of some sort. That opinion extolled the constitutionality of laws that:

tend to be narrower than the statute before us, in that they limit the scope of their application, sometimes by requiring proof of specific harm to identifiable victims; sometimes by specifying that the lies be made in contexts in which a tangible harm to others is especially likely to occur; and sometimes by limiting the prohibited lies to those that are particularly likely to produce harm. …

Statutes forbidding lying to a government official (not under oath) are typically limited to circumstances where a lie is likely to work particular and specific harm by interfering with the functioning of a government department, and those statutes also require a showing of materiality. …

Statutes prohibiting false claims of terrorist attacks, or other lies about the commission of crimes or catastrophes, require proof that substantial public harm be directly foreseeable, or, if not, involve false statements that are very likely to bring about that harm.

Although far from clear in its specifics, the concurrence emphasized that government officials can address negative theory concerns by tethering the regulated lie to the likelihood of harm. The absence of such a tether triggers distrust, in Breyer’s view, and thus justifies the application of negative theory to invalidate those laws:

[T]hat breadth means that it creates a significant risk of First Amendment harm. As written, it applies in family, social, or other private contexts, where lies will often cause little harm. It also applies in political contexts, where although such lies are more likely to cause harm, the risk of censorious selectivity by prosecutors is also high. … And so the prohibition may be applied where it should not be applied, for example, to bar stool braggadocio or, in the political arena, subtly but selectively to speakers that the Government does not like. These considerations lead me to believe that the statute as written risks significant First Amendment harm.

Contraindications for Distrust: Tethering regulated lies to “something more”

Lies’ enormous variety and ubiquity mean that the government’s regulation of lies, without more, enables its overreach. For this reason, the plurality described past precedent “to instruct that falsity alone may not suffice to bring the speech outside the First Amendment.” In its view, “[w]ere the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition.” So too did the concurrence identify the regulation of “falsity without more” as triggering its distrust. When insisting on something “more,” courts seek to limit the government’s enforcement discretion, thus cabining its potential for abuse and overreach.

To be sure, the justices struggled to articulate the requisite something “more.” The plurality insisted that the targeted lies inflict “legally cognizable harm”—illustrating, rather than defining, that phrase to include “defamation, fraud, or some other legally cognizable harm associated with a false statement, such as an invasion of privacy or the costs of vexatious litigation.” This tendency to focus on lies that inflict tangible and individualized harm like financial or reputational harm is not because other lies don’t threaten significant harm, but instead because of concerns that the challenges of proving less tangible or collective harm will enable the government’s overreaching, self-interest, bias, or incompetence to infect its enforcement decisions.

At a minimum, the requisite “more” includes lies that inflict financial and reputational harms, all of the justices agreed. But so too did all of the justices endorse the constitutionality of laws that punish lies that seek to change—or are predictably capable of changing—the target’s course of conduct to the liar’s advantage. In this vein, all nine justices indicated their constitutional comfort with laws that prohibit speakers from falsely representing themselves to be government officials (what I’ve called lies to misappropriate public power), as well as laws that broadly prohibit lies to the government (what I’ve called lies to manipulate public power)—even though such lies often inflict harms that do not involve financial, reputational, or other harms traditionally thought tangible or monetizable.

First, all nine justices endorsed the constitutionality of the many laws that prohibit a speaker from falsely representing herself to be a government official, like a police officer. We can think about these as lies about being the government, in other words, as a type of lie about who’s talking, a type of lie about the source of speech.

Of course, these sorts of lies are often told to obtain a financial benefit for the liar—by, for instance, extorting money from vulnerable targets.  But courts have also interpreted these laws to prohibit lies to influence the listener to change her “course of conduct.” For instance, the Court has held that federal law prohibits a speaker’s lie that he was a law enforcement officer—told to convince his listener to divulge information that she was otherwise unwilling to disclose—because it sought to cause the target to change her course of conduct (to speak when she preferred to remain silent).  As the Court recognized, “[A] person may be defrauded although he parts with something of no measurable value at all.”

So too did all of the justices support the constitutionality of the Federal False Statements Act, which criminalizes all sorts of lies to the federal government. While such lies are often told to obtain a financial benefit like a government contract, this law also prohibits lies that seek to divert enforcement officials’ investigative attention or otherwise influence government’s decision-making to the liar’s advantage. According to the Court, these lies are regulable because they seek to manipulate their listeners’ conduct—that is, the government’s decisions about how to allocate its time, effort, and other resources.

All three of the opinions supported the constitutionality of these sorts of laws. In so doing, the justices did not view these laws as prohibiting “falsity without more.” The something “more” rests in the lie’s intent or capacity to change the listener’s course of conduct to the liar’s advantage. Here the Court appeared to rely on “common sense” (rather than demand empirical evidence) to predict such lies’ capacity to affect their targets’ choices. I share its sense of how the world works in this respect even as I note the difficulty of predicting when the Court will require evidence of the harms threatened by certain speech and when it will not.

Legislators can additionally tether regulated lies to something “more,” and thus limit the government’s enforcement discretion, by targeting those settings where harm is likely. In this vein, the Alvarez plurality contrasted the Stolen Valor Act (which “by its plain terms applies to a false statement made at any time, in any place, to any person” ) with the Federal False Statements Act and its limitations on topic and audience: “Section 1001’s prohibition on false statements made [1] to Government officials, in communications [2] concerning official matters, does not lead to the broader proposition that false statements are unprotected when made to any person, at any time, in any context.”

We can see related intuitions at work in other settings where the Court has signaled its comfort with the regulation of lies about the source of speech. For instance, the Court has long upheld laws that require speakers to identify themselves as the source of political contributions and campaign advertisements, recognizing that accurate information about the source of speech often influences listeners’ course of conduct in important ways. And precisely because listeners frequently rely on the source of speech as a proxy for that expression’s credibility and quality, speakers not infrequently mislead listeners about their identities. Here’s one illustration, documented by Spencer Overton: In the 2016 election, fake Facebook pages targeted Black users and falsely claimed to be authored by two Black men saying “‘We don’t have any other choice this time but to boycott the election. … No one represents Black people. Don’t go to vote.’” Other examples include the deployment of deepfake technologies that make speech look and sound like it’s coming from somebody other than the actual speaker.

Other lies about the source of speech are similarly, and predictably, capable of influencing their targets’ conduct to the liar’s advantage—and thus tethered to harm in ways that should leave courts slower to distrust laws that regulate them. Think, for instance, of a candidate’s lies that she is the incumbent (a lie not terribly different from a lie that one is a law enforcement officer ) when voters frequently rely on incumbency as a heuristic (or cognitive shortcut) in their decision-making. Think too of a speaker’s lies about who has endorsed her candidacy that seek to influence listeners’ course of conduct to the liar’s advantage.

The same is true of lies about voting requirements and procedures: They are lies about objectively verifiable facts that are predictably capable of interfering with their targets’ ability to vote (thus influencing their targets’ conduct to the liar’s advantage). As the Court has signaled, these lies are also regulable consistent with the First Amendment.

Invoking Negative Theory By Pretending That Hard First Amendment Problems Are Easy

So far I’ve examined potential triggers for (and sometimes contraindications of) distrust of the government’s regulatory interventions, and thus the application of negative theory. But sometimes courts justify the application of negative theory to invalidate the government’s efforts by discounting or ignoring lies’ capacity to influence their targets’ course of conduct to the liar’s advantage. Recall, for instance, how in his Alvarez concurrence, Justice Breyer was quick to dismiss the capacity of lies in family settings to cause harm. But as documented in detail by legal scholar Jill Elaine Hasday, lies in intimate environments can and do inflict serious physical, financial, and dignitary harms and influence their targets’ course of conduct to the liar’s advantage in a variety of ways. As Hasday demonstrates, courts have long discounted these harms based on the assumption “that people deceived within intimate relationships do not and should not have access to remedies that are available to people deceived in other contexts.”

For the same reasons and with the same results, courts sometimes overstate the effectiveness of counterspeech in remedying the harms threatened by lies and other expression. As G.S. Hans observes, courts often rely on the availability of counterspeech when invoking negative theory to strike down the government’s regulation—not because counterspeech is demonstrably effective, but instead to justify its fear of the government’s potential for regulatory overreach. Negative theory presumes that the unwilling or unhappy listener can protect herself through exit or voice —in other words, by simply ignoring or leaving the discussion if she doesn’t like what she hears, or by rebutting and protesting. But that presumption should exert little force in settings and relationships where vulnerable listeners experience inequalities of information and power—and thus for whom exit and voice may not be available, increasing the likelihood that lies in those settings will inflict harm.

These judicial choices are not inevitable. The principled application of negative theory requires comparative risk assessments, and courts can (and sometimes do) weigh the risk of harm to comparatively vulnerable listeners more heavily than the risk of the government’s regulatory abuse.

Conclusion

Negative theory requires us to attend to the risk of the government’s regulatory abuse and overreach when regulating lies and other potentially harmful expression. To be sure, negative theory plays a valuable role in solving First Amendment problems. But its reflexive deployment has its costs. As Frederick Schauer describes this dynamic: “Fearful of the errors of mistaken judgment, the First Amendment of fear chooses to minimize the likelihood of such mistakes by largely withdrawing the power to judge altogether. Fearful of the worst, it is willing to sacrifice aspiration for the best.” Negative theory, when properly applied, requires courts to be transparent about the costs of this trade-off and about who bears those costs.

Our assessments of the government’s motivations and competence are key to when negative theory does (or should do) more or less First Amendment work. To this end, I urge that we take care to explain when and why we fear some government actors more than others, and when and why we fear the government more than private actors (and vice versa). More specifically, the principled application of negative theory does not pretend that hard Free Speech Clause problems are easy by minimizing the harms of regulated lies nor by exaggerating the effectiveness of counterspeech in preventing those harms. And the principled application of negative theory identifies specific triggers for distrust (like evidence of the government’s untrustworthy motives, its incompetence, its unfair surprise, or its unbounded discretion)—and recognizes that negative theory should carry less force when those triggers are absent.

 

I’m grateful for thoughtful questions and comments from RonNell Andersen Jones, Rebecca Aviel, Wayne Batchis, Alan Chen, Katy Glenn Bass, Mark Graber, Jessie Hill, Margot Kaminski, Genevieve Lakier, Toni Massaro, Derigan Silver, Scott Skinner-Thompson, Alex Tsesis, and the participants at the Knight First Amendment Institute’s symposium on “Lies, Free Speech, and the Law” at Columbia University School of Law.

 

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© 2022, Helen Norton.

 

Cite as: Helen Norton, Distrust, Negative First Amendment Theory, and the Regulation of Lies, 22-07 Knight First Amend. Inst. (Oct. 19, 2022),  https://knightcolumbia.org/content/distrust-negative-first-amendment-theory-and-the-regulation-of-lies.