Is it wise to criminalise lies? | Hacker News Reader

Is it wise to criminalise lies?

economist.com

At least in the U.S., lying by itself cannot be made illegal, as a violation of the First Amendment. However, when monetary actions are involved, lies can be characterized as fraud, and serve as the predicate for crimes.

In my opinion, it's a bad idea to predicate crimes on people lying. It can be devilishly difficult to distinguish between someone who is lying and someone who is misinformed, and that task becomes exponentially more complicated when the underlying "fact" is itself uncertain. A good example of this is the securities laws. Fundamentally, they are predicated on the simple idea that it is illegal to lie in connection with the sale of securities. In practice, it invites endless litigation over whether, say, a CEO "lied" when he said in an analyst call that a company would meet certain benchmarks when in fact the company failed to do so.

These sorts of crimes are not just conceptually complicated, but suffer from difficult proof problems. The difference between a "lie" and a "mistaken statement" is simply a person's state of mind at the time a statement is made. This sort of thing is devilishly difficult to prove.

> It can be devilishly difficult to distinguish between someone who is lying and someone who is misinformed, and that task becomes exponentially more complicated when the underlying "fact" is itself uncertain.

Another good example (IMHO) is the case of academic fraud. Often, the researchers' assumptions bias the entire study, leading to a result that an unbiased researcher wouldn't get. For example, the biased researcher pools groups that shouldn't be pooled, or the biased researcher doesn't log-normalize data that should be log-normalized, leading to "wrong" results. Edit: But most of the time, the researcher doesn't even realize that (s)he is biased.

On the other hand, we have researchers who clearly have monetary interests behind their publications: Séralini comes to mind who publishes biased books on GMOs but also publishes extremely biased research, or all the "bad pharma" as described in Ben Goldacre's book of the same name.

There have been cases where "obvious" scientific fraud has been investigated by the police, for example in Italy [1] or South Korea [2], but the slope is truly slippery. Where do you draw the line between "honest mistake" and "lie"?

Furthermore, most countries already have a problem with more and more scientists dropping out of science, which will only be exacerbated if you can go to prison for a huge mistake.

[1] http://retractionwatch.com/2013/12/06/should-scientific-misc...

[2] http://www.nature.com/news/2009/091026/full/4611181a.html

At least in the U.S., lying by itself cannot be made illegal, as a violation of the First Amendment.

That is what the Constitution says. The policy of the government is very, very different. [0]

Remember, don't talk to government agents without a lawyer.

[0] http://en.wikipedia.org/wiki/Making_false_statements

So perjury can obviously be made illegal, since it's a recognized exception to the freedom of speech that was well established at the time of the founding. Arguably 18 U.S.C. 1001 is a perjury statute. There is a very good argument that it goes far beyond how the framers would have understood the concept of perjury, specifically in that it applies to situations outside a judicial context in which no oath is administered. Certainly, there are people who think 18 U.S.C. 1001 in its full generality might be unconstitutional: http://www.volokh.com/2011/03/21/the-first-amendment-and-kno.... That said, when it has been applied, it has tended to be in cases that fit the mold of perjury or fraud anyway, thus punting on the Constitutional issue.

That is not at all what the Constitution says. The Constitution allows free speech, and consequently you are allowed to say whatever you want, even if it is a lie.

However, certain statements are also acts. While the content of the statement is protected, the act itself is punished. For example, perjury, public endangerment, etc., are acts which can take the form of speech.

That's not "lying by itself"

>At least in the U.S., lying by itself cannot be made illegal, as a violation of the First Amendment.

This isn't true. False statements of fact are a major exception to the First Amendment [0].

Besides perjury, you can prosecute people for defamation or libel. Usually it's a civil matter, but there's also criminal defamation. Finally, as WildUtah mentions below, making false statements is a crime.

[0]: https://en.wikipedia.org/wiki/False_statements_of_fact

I wouldn't say those exceptions mean that you can make "lying by itself" illegal. For example, perjury is limited by fact that it has to be in the context of a judicial proceeding under oath. Defamation on issues of public concern has an "actual malice" requirement. Fraud, of course, has the additional element of some financial transaction or gain.

> At least in the U.S., lying by itself cannot be made illegal

Try lying to a cop. Watch how fast they slap you with obstruction of justice.

So now it's a crime to lie, and it's also a crime to tell the truth (or at least, record it). [1]

It seems that to be alive is a crime. (something about original sin..?)

[1] http://www.nytimes.com/2013/04/07/us/taping-of-farm-cruelty-...

Although it's slightly different as I am Australian so it is a different legal system I have strongly believed for a long time that lying for personal gain should be a crime. If it could be proven that a politician, organisation or individual deliberately misrepresented facts for personal gain then this should definitely be considered a crime.

The ability to deliberately lie in order to influence the outcome of important events free of any consequence will always favour those with the loudest voices and the most media influence. In other words if you are the loudest why not lie about everything if there is no possible consequence?

While it could be difficult to prove that someone is lying or that something is untrue in "moral" issues there are many cases where there is empirical data or documentation proving truth, falsehood or knowledge and these are times where deliberate deception could be proven.

Probably widening the debate somewhat and a separate issue but I also feel that selective ignorance should also be punished. For example if you commission 10 reports into something and 9 of them tell you what you don't want to hear and one of them does tell you what you want to hear then you are deliberately ignoring 90% of the expert advice to prop up your point of view. IMHO this is almost as bad.

I agree with the sentiment but I see it as being unworkable. Do you arrest the talking heads for reading the prompter about how earlier someone asked if Obama had a US birth certificate(Technically true)? Do you arrest the evangelical christian for telling his congregation that evolution isn't real and you can show he sat through a class on biology? Do you arrest Jenny McCarthy for publicizing that vaccines cause autism (Spreading terribly harmful misinformation for "the right" reasons)?

Having said that I wouldn't mind a popularizing of using appropriate contracting or oath taking for specific statements to ensure truth and factual knowledge. Much as we do with oaths in court and perjury. I could see that system being workable (though in theory I guess that is what oaths of office entail so it might only be workable due to novelty).

News organisations are already obligated to print retractions when they make mistakes and asking a questions(although it is often used by the media as weasel words) is different to deliberately misleading someone.

In regards to the other two evangelical preachers should probably need to specify in advance that there is significant empirical evidence in direct contradiction to their statements before making them publicly.

In the case of the vaccination debate this should definitely be a crime, there is significant empirical evidence to prove that what anti-vaccination campaigners say is false. There is some precedent for this regarding the claims of chiropractors in the US which went to trial and found that they were lying about the efficacy of their treatments. (Also on a side note why would anyone listen to a completely unqualified "celebrity" over the opinions of someone with a PHD in virology or epidemiology. Most of the anti-vaccination campaigners are not adequately qualified to have an opinion on the matter anyway).

Also I feel that it's whether it is for personal gain is a big factor, if you are just ignorant that is unfortunate but not necessarily malicious.

There are also examples here(in Australia) of companies being fined for misleading the public, a notable example is "balance bracelets" being recalled from sale here due to false claims.

That being said despite the similarities between the two there are some pretty large cultural differences between the US and Australia which may make some of my points moot. In general Australia favours stronger consumer protections and government regulations, a free and independent publicly funded media service(ABC) and very negative political campaign adds often backfire and lower the public perception of the person making the attack rather than the other way around. Additionally Australia does not have any explicit legal guarantees of freedom of speech akin to the US constitution so some forms of speech, such as overt racism, are already illegal and people can be denied entry for public statements which indicate "bad character" such as holocaust denial etc.

> POLITICIANS never lie. So you should not be allowed to lie about them. That seems to be the logic behind an Ohio election law

Is that really the logic? This could have benefitted from quoting a supporter of the law on why they like it. That would have been more...honest.

So if this law were on effect, who decides what is a lie? If you read the article, the example used is not a lie. It is political speech. You cannot criminalize criminal speech in the US.

I think you mean "criminalize political speech"? As entertainingly mind-blowing an inability to criminalize criminal speech would be...

A lot of speech in the U.S. that is allowed under our first amendment would be considered criminal in much of the rest of the world.

In many cases criminalizing lies means forcing companies or people to shut up so as to not say something they might not consider to be a lie, but that may later be qualified as one. While lies can certainly lead to bad decisions that can lead to losing money or even harming people, I still think it is important to recognize that ultimately people should be taught responsibility for their actions and NOT trust others in the first place. One should not be aiming at building a society where you can trust people because they fear telling lies, but where one can be sure it is difficult to lie due to technology or positive economic incentives.

>forcing companies or people to shut up so as to not say something they might not consider to be a lie, but that may later be qualified as one //

Lies and untruths/falsehoods are different. A lie is something you know to be false but claim to be true in order to deceive. You can be factually incorrect without lying.

Such errors can still cause defamation of course but they lack the mens rea of lying.

The way it should (& DID) work:

1) First ammendment: Anyone can lie, ok? And, any speech has consequences.

2) THE "COMMONS" / spectrum / FCC: Anyone that uses part of the shared spectrum (broadcasters) & when calling a program "news"1, must be unbiased, factful, truthful, or at least show "both sides2" to issues*

1Fox News, in Florida, in court, proved that they were in fact entertainment, NOT news, so they could feel free to broadcast outright lies, factual untruths.

But of course, "both sides" is a fallacy to most real issues that have many more sides.

Those wiggle room *'s proved wide enough over time to lead to where we are today.

>But of course, "both sides" is a fallacy to most real issues that have many more sides.

https://en.wikipedia.org/wiki/Argument_to_moderation

Is always a good read when talking about issues like this.

Exactly. Chomsky also pointed this out well many times, that anyone with an agenda for, say, "7 out of 10" on a scale (like, "should we go to war, & if so, how?", can simply present "both sides" as a 5 & 9, so viewers, most of whom would have chosen "3" would think they were very much outliers to the social norm, & picked something between between 5 & 9. They can frame an issue in such a way that looks like they are considering "all points", so that the viewers must identify within that limited range or feel very alone.

1Fox News, in Florida, in court, proved that they were in fact entertainment, NOT news, so they could feel free to broadcast outright lies, factual untruths.

This is a misrepresentation. The specific legal process is to assume everything the Plaintiff says is true and then determine whether it was illegal. If it's not illegal, there is no point wasting the court's time determining if the Plaintiff's allegations are correct.

>1Fox News, in Florida, in court, proved that they were in fact entertainment, NOT news //

That's hilarious. Presumably then in USA it's fine to label something as "fat free" when in fact you can prove in court it's NOT "fat free"?

Surely it doesn't matter if it's entertainment or news, in this case, if they labelled it as news then it needs to meet the expected level of truthiness.

> it needs to meet the expected level of truthiness.

Who do you propose be the arbiter of this? A government panel?

Really, it shouldn't be up to the government to decide what is unbiased of factual. I know a lot of people got their panties in a twist when the court said it was OK to lie, but what's the alternative? The FCC having a commission deciding if a given news report is factual and unbiased? Some judge who barely understands how to use a mouse and email deciding if the a given report about SOPA and the MPAA is 'true'?

On the contrary: in a world filled with a cacophony of malicious and intentionally misleading statements, the silence caused by the criminalization of lies seems welcome.

It seems obvious to me that such a law would have a dramatically chilling effect on public discussion, leading, inevitably, toward a North Korea or Iran type of situation, where you dare not say anything at all. After all, who decides what is a lie, and what is not? Remember that the people who make this determination will almost certainly change in the future.

That this is aimed squarely at "lies" about political elite (people running for political office), is even more troubling.

How can anybody who values freedom at all, think this is a good idea?

Kudos for raising the 'chilling effect'. People who agitate for -insane- laws which can be applied to speech (whether lying, name-calling or whatever) have no concept of the chilling effect that laws have on discourse.

A lot of people seem to agitate for the ability to use the power of the state to shut up their enemies or critics, failing to realise that when they silence their enemies, they also silence themselves.

In many cases, the process itself is the punishment. Who wants to go to court, hire lawyers, stress and time to defend themselves against an accusation, even when you are overwhelmingly correct? The far easier choice is to shut it and say nothing. That is the very antithesis of freedom of speech. Even well-known journalists and opinion writers with the legal resources of large media companies have better things to spend their money and time on.

Freedom of speech is the most fundamental of all freedoms. Yes, that means the freedom to lie, the freedom to say nasty things, the freedom to be unpatriotic. Grant the freedom of speech and you can use it to defend all other freedoms.

The best defense against lies is the freedom to stand up and call it as one.

>Who wants to go to court, hire lawyers, stress and time to defend themselves against an accusation, even when you are overwhelmingly correct?

It's not about who wants to, it is about who can. The wealthy can easily buy their freedom of speech one way or another.

Laws like this are dangerous, not because they make the rich man spend his money, but because they imprison the poor man who has none.

Because lies are detrimental. Ideally, we would be able to outlaw lies in public discourse, and humanity would be better off for it. Practically, of course, it is nigh impossible.

The Bush administration told lies to go to war. If they knew there might be criminal repercussions to such a thing it might have very well saved lives. Hence, in this context it is a good idea.

But again, the practically of the situation makes such laws difficult to craft, to say the least.

> If they knew there might be criminal repercussions to such a thing it might have very well saved lives.

A war of aggression is already a crime against humanity, which is a capital crime.

It's really a matter of enforcement. From the "Least untruthful" to the people who unleashed multi-trillion dollar wars on a pack of lies, the laws are there already.

a North Korea or Iran type of situation

What would that be? Iran has a semi-independent press, open elections, publishing and popular culture export and import, and industrial work outside government blacklists. North Korea is more like one giant concentration camp than a country in the usual sense. They have little in common.

More specifically:

North Korea is an executive dictatorship. Iran, to the extent they are a dictatorship, is a judicial one. One could argue that ancient Athens was a legislative dictatorship. Iran has more in common with classical Greece than they do with North Korea though. And you can see the influence (albeit filtered through Islamic commentaries) of Plato's Republic on the form of government.

> seems obvious to me that such a law would have a dramatically chilling effect

Why would that seem obvious to you? Are you in the habit of lying about politicians in order to influence elections? Do you believe most people are?

If you believe few people lie in this context, then there's not much chilling effect. And if you believe a lot of people lie in this context, it would seem that the law would be sorely needed.

> And if you believe a lot of people lie in this context, it would seem that the law would be sorely needed.

can you explain why a law against lying would stop people from lying? Feel free to use examples such as the wildly successful america experiment with prohibition, or perhaps the ongoing wars on drug and terrorism to prove your point.

I believe politicians will claim that unfavorable facts are lies, placing the burden of proofs and costs of defense on me, even though they're the ones lying.

How can anybody who values freedom at all think it is a good thing that people can lie about their political opponents without repercussion?

The current system favors entrenched elites who can use their money and media connections to smear opponents.

This is true, and I would fully support this law if politicians would be fully charged with under the law after every campaign speech....

This still seems like a non-solution to me. It seems like if we accept that governments are by nature corrupt, then the question is how to have a theory and structure of government that appropriately cabins that corruption.

Quis custodiet ipsos custodes?

It's watchmen all the way down...beneath that, soccer moms.

If they really wanted to solve the problem, they should create/fund a service to promote the "truth" like a Politifact (assuming they do a good job - I don't actually know). Then you can fund it with:

- taxes on all political advertising, and/or

- penalties on the group(s) responsible for lies

...and use the revenue to offset the lies' impact by advertising the actual truth?

You'd have to somehow prevent bankruptcy protection for those groups else you could just start a new group for each "lie campaign" which spends all its' money and then goes bankrupt whenever penalized...

Of course "them really wanting to solve the problem" is the first bar to get over vs "wanting another stick to beat their opponents with". :-p

The biggest problem would be having a truly neutral arbiter, especially when it comes to politics. Would you want your most hated political opponent deciding what's 'truth' or 'lie'? Don't get me wrong, I really hate the crap they pull, I'm just not convinced that anyone could be trusted to run it, because it would be such a clear target for subversion by interested parties.

I'd prefer to see a law that merely compels those found guilty to record a video retraction/apology and make it available via youtube or another streaming site. For the average person this is nearly a non-issue. However, it would provide ammunition to the opponents of pundits and politicians who habitually bend the truth to gain advantage.

Except that mudslinging is usually done by 3rd parties so that the main candidates can keep their hands clean.

Isn't this just a variation on protection against slander?

Was there a database rollback? There was a reply to this comment saying that one fundamental difference is that previously slander and libel was a civil matter, and this makes it a criminal matter, which means jail time is possible.

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