University of Colorado Law Review
Helen Norton, Government Lies and the Press Clause, 89 U. Colo. L. Rev. 453 (2018), available at https://scholar.law.colorado.edu/articles/1019.
This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.
Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.
In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain government lies that inflict economic and reputational harm, that punish or silence individuals' speech, or that imprison or deny other protected liberties. In this paper I focus instead on the ways in which some of the government's press-related lies and misrepresentations can frustrate the two values most commonly identified as underlying the First Amendment's Press Clause: exposing (and thus checking) government misconduct, and informing public opinion about a wide range of matters.
Part I identifies a number of these falsehoods and the ways in which they can frustrate the press’s effectiveness in performing its watchdog and educator functions. For example, the government's misappropriation of the press's identity (i.e., the government's lies that it is the press) and the government's obfuscation of its role as author of material it has produced for publication (i.e., the government's lies that it is not the press) undermine the press's independence and credibility. The public needs to see and understand the press and the government as distinct entities with very different roles if the press is to offer a meaningful check on the government; the government's lies about being (or not being) the press thus threaten to blur the line between the two in damaging ways. Relatedly, the government's lies to the press about its own behavior -- coupled with its lies about the press intended to discredit the press -- directly interfere with the press's ability to hold the government accountable to the public through accurate and credible reporting. Part II then considers potential legal, structural, political, and expressive responses to such governmental falsehoods and their harms. Possibilities include a more muscular Press Clause doctrine that would prohibit governmental lies and misrepresentations that interfere with Press Clause functions, as well as engaged counterspeech and oversight by other government actors, the press, and the public more generally.
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