Liability for false statements of fact
Mark Tushnet
mtushnet at law.harvard.edu
Wed Oct 14 15:55:26 PDT 2009
On misleading commercial speech, I understand the categorization as a
matter of positive law, but it's not clear to me why truthful misleading
commercial advertising gets lower level protection. We know that
truthful price advertising is "fully" protected, and we have a pretty
good indication that one important part of the reason is that a
government's paternalistic judgments about what information is useful to
consumers are insufficient to justify regulation. The primary reason
for regulating (truthful) misleading advertising is paternalism, and so
- but for the stipulation in Central Hudson that commercial advertising,
to come within the First Amendment, "must not be misleading" - the
principled ground for allowing regulation of trustful misleading
advertising (without a strong justification, which seems to me likely to
be hard to come by because of, among other things, the possibility of
counterinformation by competitors and the government as disseminator of
information rather than regulator) seems elusive to me.
The Ben and Jerry's disclaimer suggests the difficulty. Here's what it
is (or, if you have particularly good eyesight, take a look at a Ben &
Jerry's carton): "We oppose Recombinant Bovine Growth Hormone. The
family farmers who supply our milk and cream pledge not to treat their
cows with rBGH. The FDA has said no significant difference has been
shown & no test can now distinguish between milk from rBGH treated &
untreated cows. Not all the suppliers of our other ingredients can
promise that the milk they use comes from untreated cows." The first
two sentences are truthful statements. Could the Department of
Agriculture require that the second two be included, on the ground that
the first two standing alone are misleading? (The disclaimer resulted
from a complex negotiation in which the threat of a regulatory
requirement of that sort played a role.) There are other interesting
cases, such as an advertisement claiming truthfully that 40% of a
product's users reported a reduction in back pain after starting to use
the product, where the 40% is a measure of the placebo effect (that is,
if you told people with back pain to touch their foreheads, noses,
chins, and knees four times a day, 40% of those who did so would report
a reduction in back pain).
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 lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, October 14, 2009 1:49 PM
To: 'Conlawprof at lists.ucla.edu'
Subject: RE: Liability for false statements of fact
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
http://www.mail-archive.com/conlawprof@lists.ucla.edu/ as well as at
http://lists.ucla.edu/pipermail/conlawprof/.
Eugene
From: Mark Tushnet [mailto:mtushnet at law.harvard.edu]
Sent: Wednesday, October 14, 2009 10:45 AM
To: Volokh, Eugene; Conlawprof at lists.ucla.edu
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 lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, October 14, 2009 12:14 PM
To: 'Conlawprof at lists.ucla.edu'
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
pamph-let 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.
Eugene
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