Monday, September 21, 2009

Does The 1st Amendment to the Constitution Give Us The Right To Lie?

By Ron Powell

In a time of universal deceit, telling the truth is a revolutionary act. --- George Orwell

Quite some time ago, I read Sissela Bok's seminal work: Lying: Moral Choice in Private and Public Life (1978). The book is still in print , nearly thirty years after its initial publication. I have used it in my classes when dealing with the questions and issues of morality and ethics in professional and personal life. Its continuing broad readership pays tribute to the book's lucidity and good sense. Bok's work has no equal as a serious treatment of a central, but neglected, dimension of moral life.

Note: Sissela Bok is the daughter of Gunnar and Alva Myrdal both Nobel Prize recipients, and the wife of Derek Bok, formerly President of Harvard University (1971-1991).

Formerly a Professor of Philosophy at Brandeis University, Bok is currently a Senior Visiting Fellow at the Harvard Center for Population and Development Studies.

What exactly is a lie?

A lie is a statement, believed by the liar to be false, made to another with the intention that the person be deceived by the statement. This is the definition used by Sissela Bok and it has antecedents as far back as St. Augustine. I often like to throw in curve balls like; What if the liar knows the statement to be true but wishes the person to whom the statement is made to believe it to be false?

What's the difference between lying about the day or time you'll be able to deliver yourself to a particular location for a dinner date and lying about the day and time you'll be able to deliver goods or services to that same location?

One situation seems to involve a purely or primarily interpersonal or social arrangement and the other involves a contractual or commercial agreement. One situation may not become the basis for a legal sanction being levied against the liar, the other provides the foundation for taking legal action against the liar. One case involves a'harm' done to anindividual the other involves a 'harm' done to society at large.

A good person does not lie.

It is this intuition which brings lying so naturally within the domain of those things and behaviors which we believe to be categorically immoral or wrong. Yet many lies do little if any harm, and some lies do real good. How are we to account for this stringent judgment on lying, particularly in face of the possible trivial, if not positively beneficial, consequences of lying?

What the lie accomplishes is deception:

There are many ways, of course, to deceive without actually lying.

Consider this scene: The Doctor enters your hospital room looking cheerful. "Have you seen the test results?" you ask. "No," the doctor says, "they'll be available tomorrow. Relax and get a good night's rest." In fact, the doctor isn't lying - the final results won't be available until tomorrow - but he is deceiving you by his manner. He already has preliminary indications of what the test results will show, and your prognosis is not good. Was he justified in assuming a deceiving manner?

What if we altered this scenario so that the doctor actually lied? Would that make his deception worse?

What makes lying wrong? What makes deception wrong, when it is wrong?

You want to lie to someone? Well, what if you were the one being lied to? Or the one being lied about? Would taking up that perspective change your view of the lie?

Take the example of the human resources consultant (an example Sissela Bok discusses in her book) who was proud of her method for getting reliable recommendations about job candidates. She floats lies about the candidates she's investigating to see how a recommender responds. "I hear Smith doesn't get along well with her colleagues," the headhunter offers. "I hear Jones sometimes takes credit for other people's work." By gauging recommenders' reactions to these manufactured rumors, she elicits a richer report on a candidate's character and experience, so she is convinced.

The headhunter is so proud of her method in part because she is obtuse. She never imagines herself on the receiving end of her method. She never imagines herself as somebody being lied about by a seeker of information regarding her. Were she vividly to imagine that scenario, she might come very quickly to appreciate the great potential for harm in what she was doing. She might reflect:

Suppose my boss is just about to make a choice to promote me rather than a colleague - a close call - when he gets a phone query from a headhunter dropping unflattering rumors about me. Even though my boss denies the rumors, perhaps hearing them leaves a residue of doubt in his mind, and he reverses his decision, promoting my colleague instead of me!

No one wants to be harmed by a lie. We've no reason to suppose otherwise about the consultant. Thus, we've every reason to believe she would object to being on the receiving end of her method.

I highly recommend Sissela Bok's book as it is still the foremost treatise and analysis on the social and moral dynamics of lies and lynig.

Our focus here is; do we have a right to lie under the constitution? What are the questions and issues posed by what seems to be taking place in the contemporary media and political arena?

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Are lies and liars protected under the 1st Amendment to the Constitution?

Yes and No:

Yes: Political and religious speech are categorically protected, hence falsehoods, half-truths and down right lies that are promulgated within the context of such speech are also protected...So too, are the people who are responsile for the false, misleading or deceptive utterances couched in politics or religion. This appears to be so whether the speaker intends the lie or not.

Yes: Commercial and journalistic speech are protected for the most part. However, unlike political and religious speech and speakers which enjoy absolute protection, there are areas in which commercial speech and journalistic speech are measured or evaluated in terms of veracity and or intent regarding the queation of damage or harm to either an individual or society. In these areas commercial and journalistic speech which is deemed intentionally deceptive and the cause of damage or harm is not protected and may result in the perpetrator being hit with a civil or criminal penalty of some kind.

(In the law the concept of intent is critical because without showing the requisite intent, the harm or damage caused by the liar's lie may not result in the liar being subject to civil or criminal liabilty and penalties.)

No: Interpersonal speech that results in harm or damage to another, particularly where the damage or harm caused is intended or reasonably forseeable, because it is fraudulent, libelous or uttered as part of or in the furtherance of a criminal activity, a criminal conspiracy or a criminal enterprise.

No: Speech that is intended to cause or incite violence, or riots.

No: Speech that is seditious or intended to cause rebellion against the government.

No: Speech that is intended to impede or interfere with the legitimate exercise of govermental power or authority. (Lying to the police, or falsifying a tax return, etc.)

In the instances where the speech is not protected the speaker is subject to civil or criminal liabilty and penalties when held responsible or accountable for the non-protected speech.

Where does this leave us?

The right to political or religious freedom of speech gives the speaker a constitutionally protected right to lie as long as the speech stays within the parameters of protectd speech.

The journalist who lies without the overt intention to cause damage or harm is, for the most part, also constitutionally protected.

As the ones being lied to, our best protection against the barage of lies we are subjected to on a daily basis, is to seek and learn the facts, and arrive at our own truths....It is not only our right but our responsibilty and civic duty as citizens.

No comments:

Post a Comment