How the Law Treats Deceptive Speech

Stuart P. Green, Rutgers, The State University of New Jersey, School of Law (Newark) is publishing Lying and Law in The Oxford Hankbook of Lying (Joerg Meibauer, ed. OUP, forthcoming). Here is the abstract.

How should the law regulate lies and other forms of deception? Sometimes, it takes a hard line, subjecting those who engage in deception to serious criminal or disciplinary sanctions. Other times, it is quite tolerant, declining to impose sanctions, and even affording certain kinds of deception constitutional protection. This chapter, written for a wide-ranging, interdisciplinary collection of essays on lying, offers a general survey of a very broad topic, focusing primarily on U.S. law, but also attempting, in a selective manner, to contrast that law to the law of other jurisdictions. The discussion begins with a consideration of the various ways in which deception functions as an element in three very different sorts of criminal offenses: perjury, fraud, and rape by deception. It then looks at how the law regulates deception by the police (during interrogations) and by lawyers (to courts and to their adversaries). Finally, it consider the possibility that deception used by the media and in the course of political campaigns might lie beyond the scope of permissible legal regulation. The main point will be to show how the law’s treatment of deception varies depending on the role of the person doing the deceiving (e.g., private individuals vs. government officials) and the social context in which the deception occurs (such as a courtroom, the marketplace, a police station, or a sexual encounter). More generally, it is intended to show the quite nuanced ways in which the law seeks to deter deceptive speech that is truly harmful without “chilling” deceptive speech that is harmless or even socially beneficial.

Download the essay from SSRN at the link.