Can the law punish deliberate lies about
public matters? Well it depends.
Here are the six rules of fake news
One: false statements that tend to damage reputations can generally be punished.
Of course the law doesn't call this fake newsit calls it defamation.
Written defamation is called libel, spoken defamation is called slander,
radio and TV broadcasts are usually considered libel
except in Georgia where they're
called "defamacast."
No, really. They made up a new word for it and it's not catching on.
Intentional lies about particular people or companies can lead to massive damages awards
including punitive damages.
they can even lead to criminal punishment in states that still have criminal libel laws
though such prosecutions are pretty rare.
Negligent mistakes about particular people or companies can also lead to damages awards
unless the statements are about
public officials or so-called "public figures"
people or businesses who are
quite famous or influential
those plaintiffs have to show the speaker knew the statement was false or at least was likely false
and in many states some
falsehoods about particular people
can lead to damages even if they don't harm
a person's reputation
That's called the "false light tort."
Classic example:
baseball great Warren Spahn
once won a damages award because a biographer had
falsely claimed that Spahn was a war hero
even though that tended to falsely
enhance Spahns' reputation rather than harming it.
Two: Deliberate lies aimed at
getting money can be punished as fraud
that's true even for political religious
or charitable fundraising
which is usually protected by the First Amendment.
If you try to get people to donate money to your group
but lie about what it's
doing you could be sued or even prosecuted
but it's not clear how far this goes.
For example no appellate court has allowed a fraud lawsuit against a magazine
on the theory that it lied in some sensational story so as to sell more magazines.
Three: Deliberate lies as well as honest mistakes in commercial advertising can be punished.
Commercial advertising is generally less protected than other speech
especially when it comes to false statements.
Four: Lies about the government can't be punished.
The federal government can't sue you for
defamation
even if you deliberately lie about something the government has done.
Cities or public universities can't sue for defamation either
Back in 1798, Congress tried to ban lies about the federal government
with the infamous Sedition Act
Some justices at the time thought the law was fine
but the Supreme Court has since concluded that such a ban violates the First Amendment.
Five: Lies about big-picture topics generally can't be punished either.
So a law banning Flat Earth theory for instance would be unconstitutional
same for laws that try to punish falsehoods about say climate change or vaccinations.
In these broad areas the justices say
'any attempt by the state to penalize
purportedly false speech
would present a grave and unacceptable danger of
suppressing truthful speech.'
Six: Lies about more specific topics are more complicated.
In 2012 the Court struck down the Stolen Valor Act
which criminalized falsely claiming that you've won a military medal
but while six justices agreed on that result
the reasoning was split into two groups:
Four justices said that most non-commercial lies are broadly protected by the First Amendment
unless they fit into a few categories such as defamation or fraud or perjury.
But two justices concluded that lies are only kinda sorta
sometimes protected.
They held that restrictions on such lies warrant neither near automatic condemnation
nor near automatic approval.
So whether any kind of particular lie is unprotected
was left to be decided case-by-case
without much guidance from the Supreme Court.
Since it generally takes five
justices out of nine to set a conclusive precedent
it's hard to say what's allowed and what's not.
You'd think a question that's this fundamental would have been resolved by now but no.
So for instance some states ban deliberate lies
in election campaigns
Is that constitutional?
Not if it's applied to statements about the government or about social science or history.
But what if it's more specific like a candidate claiming endorsements that he didn't actually get?
That's a harder call and lower court's disagree
on whether broad bans on lies in election campaigns are constitutional.
Or what about hoaxes that
suck up police resources?
Back in 2009 Andrew Scott Haley posted YouTube videos
in which he purported to be a serial killer and gave clues to his supposed killings
He was eventually prosecuted for making false statements
that he knew would come to the attention of law enforcement and trigger an investigation.
The Georgia Supreme Court held that the First Amendment to did not protect such a hoax.
The US Supreme Court refused to consider the case leaving that issue unresolved outside Georgia.
So to summarize:
Deliberate lies about particular people or companies are unprotected by the First Amendment,
that's sometimes also true of negligent mistakes,
deliberate lies aimed at getting money:
unprotected,
Deliberate lies aimed at selling products: also unprotected and honest mistakes might be too,
Deliberate lies about the government protected by
the First Amendment,
deliberate lies about philosophy, religion, history, social
sciences, the arts and the like: protected,
other deliberate lies about more
specific topics?
Hard to tell...
This is not legal advice. 
If this were legal advice it would be followed by a bill.
Please use responsibly.
Written by Eugene Volokh who is an actual real-life First Amendment law professor at UCLA
I'm Eugene Volokh and I approve this message
