August 12, 2003
"Free to Lie"--A Commentary by Prof. Peter Schuck
(This essay was originally published in the August 2003 issue of the American Lawyer.)
Free to Lie
By Peter H. Schuck, Simeon E. Baldwin Professor of Law
Lying is like food, sex, and law; we just can't do without it. Consider some lies people tell each day with hardly a pang of conscience. "You're looking well." "I'm happy to meet you." "Let's get together for lunch." "It's not the money." "This hurts me more than it hurts you." "I'm delighted to be here." "Your cooking is four-star." "I would never cheat on my taxes or my spouse." "I shot par on that hole."
As the reader surely knows from personal experience, the list of common lies is very, very long. And, as you might expect, there are even statistics on the point. Thus, a recent study found that 60 percent of strangers lied at least once during a ten-minute get-to-know-you conversation, with the number of lies averaging 2.9, and ranging as high as 12. (Interestingly, men and women told an equal number of lies, though with somewhat different intents-women to make others feel good, men to build themselves up.)
Our moral precepts and intuitions recognize that lying is not always wrong. We are taught as children to pretend that we are having a good time even when we are unhappy, that we like the food our hosts serve even when it is execrable, that we respect our elders even when they are fools, and that we are willing to share our toys even though this is the last thing we want to do. The Eighth Commandment, for example, prohibits bearing "false witness against thy neighbor," which seems to bar false testimony, defamation, and malicious gossip, perhaps, but not most other kinds of lies. Hypocrisy, Dr. Johnson reminds us, is the tribute that vice pays to virtue. Lies, one might say, are the lubricants that keep our social wheels turning.
These thoughts were provoked by a recent article in The New York Times about Jo Hamlett, the mayor of a small town in Iowa, who has proposed--in apparent seriousness--an ordinance that would prohibit residents from lying. "I just feel like it would put a little more Midwestern honesty back in these people," he said, referring particularly to tall tales about hunting and fishing successes in the town. The article did not reveal whether Hamlett is up for reelection.
It is easy to ridicule the mayor's proposal, but it does raise intriguing questions about law's relationship to truth--and thus to lying. The law usually stands up for truth but not always or unequivocally. Consider some legal variations on this theme. Sometimes the law insists that truth is the only thing that matters; other times, it affirms that truth does not matter at all. Even when law demands that a statement be true, it does not always require the strict or full truth. Sometimes it countenances considerable fudging or even what laypeople might call "white lies." The law usually demands the most reliable evidence about a fact but then suppresses apparently truthful evidence bearing on that same fact. Indeed, the law sometimes punishes lawyers and others for speaking the truth, as with gag orders.
The law depends on truth the way humans depend on oxygen; both are vital. For law to govern society effectively and enjoy legitimacy, its decisions must correspond to reality with a very high probability. (This is one way to understand the collapse of corrupt regimes like the Soviet Union, whose laws are built on lies.) Nevertheless, important areas of law conspicuously disclaim any interest in whether the assertions that the law regulates are true or false. Religious claims, for example, are protected by the First Amendment, even when they strike most of us as manifestly preposterous. The Supreme Court insists that government may not police truth in this area, even though false religious claims can be very damaging to those who rely on them. Only in the clearest cases of fraud will the Court permit prosecutors to act against religious speech or activity. By the same token, albeit for somewhat different reasons, the Court has created a wide zone of protection for political expression in which people are free to speak falsely to their hearts' content--especially, and perhaps ironically, with respect to matters of the greatest public importance. The Court in New York Times v. Sullivan and its progeny has immunized patently false and defamatory statements of fact against public figures unless they are published with malice--that is, with actual knowledge of their falsity or reckless disregard of the truth. This immunity, which extends primarily but not only to media defendants, protects, if not encourages, sloppy, even irresponsible reporting.
To the general rule that the law will not protect falsehoods, there are some exceptions-some of them quite broad. For example, most false statements that are uttered in court under oath and then exposed as lies are nevertheless not punishable as perjury. The common law of deceit provides that even lies are protected, unless they are material and engender reliance. The law governing commercial advertising permits many "puffing" statements ("Wheaties, the breakfast of champions") that either cannot be proved or are flatly false. The law's assumption is that sensible people don't take such hyperbole too seriously-which amounts to saying that the statements have little informational value. But if this is so, then it is harder to see why the law should protect such statements even when (as the seller fully intends) buyers do take them seriously and they are material to the transaction.
The trial and the adversary system are usually justified as a search for the truth. A more accurate statement would be that they are a search for truth constrained by other values, which may--and often do--trump truth-seeking. Some lawyers familiar with European civil law systems find the adversary system to be, by comparison, scandalously indifferent to the truth. This dispute, which borders on the theological, is unlikely to be resolved by either argument or evidence.
Even the staunchest advocates of the adversary system, however, should recognize that it serves goals other than truth--including some goals that actually undermine truth-seeking. The most important of these other goals is to protect individual liberty, especially against state overreaching. To achieve this goal, the law adopts rules and practices that can interfere with the search for truth in individual cases and, perhaps, more generally.
Consider some examples. Testimonial (anti-testimonial, really) privileges for spouses, confessors, and psychotherapists may prevent the jury from learning the truth of what happened. Under the hearsay rule (and subject to many exceptions), an out-of-court statement cannot be introduced to prove the truth of what it asserts if the declarant cannot be cross-examined before the jury--even if the statement is the best available evidence for the truth of the assertion. Under the exclusionary rule (again, subject to many exceptions), highly probative evidence is often kept from the jury merely because it was obtained illegally. Shield laws protect journalists and some others from revealing what they know, even at the cost of denying courts, juries, and the general public access to the truth.
The code of professional responsibility makes a number of compromises with truth. So long as a lawyer does not consciously avoid learning information from the client or conceal it from the court, the lawyer may zealously represent the client without having or presenting the "whole truth." Even as an officer of the court, a lawyer who suspects (but does not know) that his or her client is lying on the stand may not be obliged to stop the false testimony or inform the court of that suspicion. Lawyers in civil cases need not reveal every fact that might assist their adversaries' case.
The jury--or more precisely, the need to protect its integrity--entails much suppression of truth. I have already noted that the rules of evidence keep much probative evidence from the jury. Judges often impose gag orders on truthful speech by lawyers and jurors. The rule that prohibits lawyers from impeaching jury verdicts protects many erroneous decisions and limits the domain of truth-seeking.
The law, in short, has many fish to fry, and truth is only one of them. If all our law cared about was truth, our society would be organized quite differently than it is--and not necessarily for the better. For one thing, we might well choose a civil law-type inquisitorial system in which, among other differences, lawyers play a less prominent, less exalted role in politics and society, and their clients enjoyed less vigorous advocacy and, perhaps, less protection from the state. In addition, political debate would be far less robust, expansive, and critical than it is, as citizens would face greater risks of liability for aggressively challenging public officials and social leaders. A law single-mindedly pursuing truth would constrain religious activity, particularly among unconventional groups that actively recruit by making extravagant claims about salvation.
In principle, one might expect that a law that relentlessly pursues truth would seek to reduce the factual errors--the lies and honest mistakes--made by and to legal decision makers. Since truth negates error, the more law cares about the truth, the fewer errors it should tolerate.
In practice, however, we face not one simple choice, but two more complex choices: how much error to accept, and which kinds. To further complicate matters, the "which kind" choice often affects the "how much" choice. Most policy decisions must trade off the risk of "Type 1" errors (false positives), which give a legal benefit or burden to the wrong person, against the risk of "Type 2" errors (false negatives), which fail to give it to the right person. Do we care more about, say, officials giving a disability award to all who are legally eligible for it than we do about preventing ineligible people from receiving it through lies or other errors? Among the factors affecting this trade-off are how costly it would be to reduce each type of error, and how important the benefit is to the individuals seeking it. If it is essential to their well-being, then we are more likely to accept the risk of erroneously giving it to ineligibles. The central points, however, are that the law must choose between the two kinds of errors, and that in choosing, it must often accept (and in effect reward) some level of lying.
Finally, a law concerned only with the truth would also have much less patience with the delays, digressions, and procedures that occur when public and private decision makers look beyond truth to other values. Imagine what life would be like if officials--police wanting to grill a suspect, for example, or zoning boards determined to approve or deny a building permit--could do so without impediment as long as they later turned out to be right on the facts and the law. Mission-driven officials find procedural obstacles frustrating, and citizens assail them as red tape, foot-dragging, and paper-shuffling. Both may be right. But from a broader perspective, these obstacles help protect our liberties. They slow the bureaucratic juggernaut, force it to listen to other views, and oblige it to diversify its portfolio of purposes. And it is not only government that needs this value diversification. Private bureaucracies with immense power over us-health care organizations, insurers, broadcasters, and the like-must be publicly accountable and procedurally fair even when doing so interferes with what they take to be their primary missions.
In a liberal democracy like ours, law must pursue the truth vigorously but not single-mindedly. Errors--and even some lying--are part of the price we pay for our freedom.
Peter H. Schuck is the Simeon E. Baldwin Professor at Yale Law School, and author of the just-published Diversity in America: Keeping Government at a Safe Distance (Harvard University Press, 2003).