Liability for false statements of fact

Volokh, Eugene VOLOKH at
Wed Oct 14 10:49:21 PDT 2009

As best I can tell, false light invasion of privacy has been limited to false statements, though of course the category of false statements - as to false light and elsewhere - may include some that are literally true but so extraordinarily misleading that we treat them as false.  The classic example is the first mate who writes in the ship's log, "Captain sober today," which nearly all readers would understand as meaning "captain was drunk other days," and which is libelous even if it is literally true that the captain was sober today as well as all other days.

Restrictions on misleading commercial advertising are generally understood, and I think correctly, as involving the less-protected zone of commercial advertising.

Archives are available at as well as at


From: Mark Tushnet [mailto:mtushnet at]
Sent: Wednesday, October 14, 2009 10:45 AM
To: Volokh, Eugene; Conlawprof at
Subject: RE: Liability for false statements of fact

I guess my question is something like this:  Once we take away regulation that licenses excessive administrative discretion and regulation of viewpoint inflected facts, and observe that legislatures will rarely be motivated to enact bans on mere falsity unless there's something else they're worried about as well, and add in the role of competition as a check on falsity, is there anything left to the exception the courts have carved out?  (That question puts aside the "is the game worth the candle?" point, that is, that the residual category might have something in it, but not enough to be worth the time it takes to administer a "ban on mere falsity is permissible" rule.)  Also, with respect to some of these examples (I think "false light" and I'm sure "deceptive advertising," which seems to me in the same family), liability can attach to true statements - which, at least for me, raises once again the "coverage" versus "protection" issue:  If false-light statements or deceptive advertising is covered but not protected, the standards we're going to have to have to explain why some core examples of deceptive advertising aren't protected are going to be quite subversive (that is, conceptually not terribly restrictive) with respective to stuff we are quite confident should be protected.

BTW, is there some archive I can go to to retrieve yesterday's thread (for my files - if I quote anyone, I'll ask permission)?

Mark Tushnet
William Nelson Cromwell Professor of Law
223 Areeda Hall
Harvard Law School
Cambridge, MA  02138
ph:  617-496-4451 (office); 202-374-9571 (mobile); 617-496-4866 (fax)
From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of Volokh, Eugene
Sent: Wednesday, October 14, 2009 12:14 PM
To: 'Conlawprof at'
Subject: RE: Liability for false statements of fact

               There is actually a pretty hot controversy over the degree to which false statements of fact - even ones that aren't about some third party who objects (as in defamation, false light invasion of privacy, and possibly intentional infliction of emotional distress based on knowingly false statements) - can lead to civil or criminal liability.  Cf. Brown v. Hartlage, 456 U.S. 45 (1982). See, e.g., State v. Davis, 27 Ohio App.3d 65 (1985) (affirming conviction for knowingly making false statements in a political campaign); Pittsburgh Post-Gazette, Dec. 17, 1996, at A10 (discussing prosecution of former Rep. Wes Cooley for supposedly lying to Oregon voters in a ballot pamphlet about his Korean War experience). But see State ex rel. Public Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998) (striking down a law banning false statements said with actual malice in election campaigns).

               As I read the doctrine, the courts have carved out (more or less) a false statements of fact exception that covers a wide range of recklessly/knowingly false statements, including, as I mentioned, defamation, false light invasion privacy, and intentional infliction of emotional distress, but also fraud (Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003)), perjury, unsworn lies to government officials (see, e.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir. 1982)), trade libel, and more.  At the same time,

               (1) restrictions on negligent falsehood, or strict liability rules, may well be unconstitutional in a wide range of these contexts;

               (2) some false statements may be categorically protected, for instance when they are about the government (see NYT v. Sullivan's "of and concerning" discussion); and

               (3) R.A.V. v. City of St. Paul limits the government's power to selectively outlaw certain false statements of fact.

               For fun hypotheticals, one can have a look at the facts of State v. Haffer, 162 P. 45 (Wash. 1916), which involved alleged lies in a biography of George Washington, there punished under a criminal libel law that covered the dead as well as the living (as some criminal libel statutes still do), or of Schaefer v. United States, 251 U.S. 466 (1920), which involved a statute banning the distribution of "false reports" about the war.


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