In United States constitutional law, false statements of fact are assertions, which are ostensibly facts, that are false. Such statements are not always protected by the First Amendment. Often, this is due to laws against defamation, that is making statements that harm the reputation of another. In those cases, freedom of speech comes into conflict with the right to privacy. Because it is almost impossible for someone to be absolutely sure that what they say (in public) is true, a party who makes a false claim isn't always liable. Whether such speech is protected depends on the situation. The standards of such protection have evolved over time from a body of Supreme Court rulings.
One of the landmark cases that established such standards was New York Times Co. v. Sullivan (1964). In that case, the court ruled that statements about public officials must be given more protection in order to avoid squelching public debate. Similar protections were later expanded to statements about public figures (not just officials), and matters of "public concern" (including those involving private parties). Other examples of false statements of fact that do not receive First Amendment protection include false advertising, as in Lexmark International, Inc. v. Static Control Components, Inc. (2014) and POM Wonderful LLC v. Coca-Cola Co. (2014), and commercial speech that includes misleading statements as in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980).
Section 1001(a) of Title 18 of the United States Code states:
In upholding a conviction under Section 1001(a) of Title 18 in Bryson v. United States (1969), the Supreme Court stated:
Overview of the legal rule
Theoretical basis for exception
The United States Supreme Court first articulated the basis for excluding false statements of fact from First Amendment protection in Gertz v. Robert Welch, Inc. (1974). In that case, a monthly newspaper was sued by a policeman's attorney. The newspaper "contained serious inaccuracies" about the attorney; namely, that he was supporting the police system as a goal to entrench a Communist conspiracy in the United States. They held that a civil jury award against the newspaper was constitutional because "there is no constitutional value in false statements of fact". Justice Powell, in writing the decision of the Court reasoned that false statements do not "advance society's interest in 'uninhibited, robust, and wide-open debate'". Even though he conceded that some false statements were inevitable, that did not mean that a system of liability meant to deter such behavior was impermissible. Society had some interest in ensuring that debate covered truthful matters, as a key element of public participation in a democracy.
Basic substantive rule
The legal rule itself – how to apply this exception – is complicated, as it is often dependent on who said the statement and which actor it was directed towards. The analysis is thus different if the government or a public figure is the target of the false statement (where the speech may get more protection) than a private individual who is being attacked over a matter of their private life. Thus, a key starting point in the analysis will discuss the 'manner' and 'context' in which the statements were made.
Professor Eugene Volokh of UCLA Law characterizes this context analysis as divided into five different areas. First, false statements of fact can lead to civil liability if they are "said with a sufficiently culpable mental state". This possibly includes conscious lies about military service. The second category is a subset of the first: knowingly false statements (deliberate lies). This includes things like libel and slander. These sorts of statements are specifically punishable because they contain malice. A third category are "negligently" false statements, which may "lead to [some] liability". A fourth included set includes statements that only have a "provable false factual connotation" – that is, implicit statements of fact. The example Volokh uses is the statement that "Joe deserves to die" which in the context of a murder could be made to be a factual statement.
The fifth category is one that is not as firmly set by precedent: false statements, even deliberate lies, against the government may be protected. While some "seditious libel" may be able to be punished, political statements are likely protected.
Remedies
Punitive damages are sometimes available against an individual who made a public false statement of fact. Criminal liability, although uncommon, can be made although they are usually subject to the same limitations imposed on civil suits in terms of elements to be proven.