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Abstract

This Article considers the extent to which the exclusion of forms of speech from the coverage of the First Amendment has turned on the falsity of statements within the excluded categories. It does so, first, by reviewing the Supreme Court’s early and mid-twentieth century free speech decisions, to demonstrate that none of the principal cases in which the Court swept a particular category of expression within the First Amendment’s coverage involved speech that was false; and, second, by suggesting that when the Court first announced that some “breathing space” was required for factually inaccurate statements about public officials or private citizens associated with matters of public concern, it was less concerned with protecting false speech than with shielding inaccurate comments from being punished because they were provocative. Moreover, in its decisions involving the Court’s most prominent recent category swept within First Amendment coverage, commercial speech, the Court has explicitly excluded false and misleading versions of that speech from the protection of the First Amendment.

Recent decisions of the Court, however, have indicated that any form of expression, true or false, is presumed to be within the First Amendment’s coverage unless it falls into a category of “historically unprotected” expressions. Although most of those expressions involve factually false speech, the Court’s own recent decisions seemed to have blurred the line between true and false speech triggering First Amendment protection, and thus raised the possibility that the regulation of several additional categories of false commercial speech might raise First Amendment concerns. This Article advances two arguments for why that possibility should be resisted.

One is that the exclusion and inclusion of particular forms of speech within the First Amendment’s coverage signals the cultural salience of those forms: by identifying forms of speech that are not sufficiently valued to receive constitutional protection, Americans signal what forms of speech they value. Were anyone “free” to say anything on any subject, speech might become the equivalent of noise.

The other is that the distinction between truth and falsity in First Amendment jurisprudence serves as an illustration that truth is not only valued more highly than falsity, it can be objectively ascertained and rendered. That epistemological premise resists the claim that “truth” needs to be placed in scare quotes because it is a construction of reality rather than reality itself: that “news” can legitimately be claimed to be “fake” because no one is capable of ascertaining what “true” ideas or information might be. Such a claim, the Article maintains, invites not only incoherence within First Amendment jurisprudence but within the discourse of contemporary American culture more generally.

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