Indiana Law Journal
Helen Norton, The Government's Lies and the Constitution, 91 Ind. L.J. 73 (2015), available at https://scholar.law.colorado.edu/faculty-articles/54.
Governments lie. They do so for many different reasons to a wide range of audiences on a variety of topics. Although courts and commentators have extensively explored whether and when the First Amendment permits the government to regulate lies told by private speakers, relatively little attention has yet been paid to the constitutional implications of the government's intentional falsehoods. This Article helps fill that gap by exploring when, if ever, the Constitution prohibits our government from lying to us.
The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct, to inflict economic and reputational harm, or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider its lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The number of lies, the diversity of reasons for which they are told, and the variety of their effects combine to suggest that efforts to enforce blanket prohibitions against the government’s deliberate falsehoods would be both difficult and unwise.
The Article proposes a framework for assessing the constitutionality of the government’s deliberate falsehoods. To this end, it builds on due process and free speech theory and doctrine to identify when and how the government's lies inflict the harms of deception and breach of trust in ways that endanger specific constitutional rights. More specifically, it proposes that the government's lies violate the Due Process Clause when they directly deprive individuals of life, liberty, or property; when they are sufficiently coercive of their targets to constitute the functional equivalent of such deprivations; and in those extreme circumstances when they lack any reasonable justification and thus constitute an abuse of governmental power. Examples include prosecutors' lies to judges and juries that lead to a defendant's imprisonment; law enforcement officers' lies that coerce the involuntary waiver of constitutional rights; and government lies that deprive their targets of the meaningful opportunity to exercise voting, reproductive, or other protected rights.
The Article further proposes that the government's lies violate the Free Speech Clause when they are sufficiently coercive of their targets' beliefs or speech to constitute the functional equivalent of the government's direct regulation of those expressive choices. Examples include the government's lies to or about its critics to silence, deter, or otherwise retaliate against them for their speech, or the government's lies to captive or otherwise vulnerable audiences to manipulate their expressive choices.
Because the Constitution does not provide the only possible constraint on the government's deliberate falsehoods, the Article then explores a variety of nonconstitutional means for addressing certain harmful government lies. It identifies a menu of possibilities that include statutory as well as political remedies that target the government's deliberate falsehoods on certain subjects, to certain audiences, by certain speakers, or in other settings that threaten especially grave harms. It concludes by applying these approaches, both constitutional and nonconstitutional, to a range of problems. In so doing, it seeks to start a conversation about how courts, policymakers, and the public might think about the constitutional and other implications of our government's lies.
Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required.