False Speech: Quagmire?

Recently decided cases in several Federal Courts of Appeals and the United States Supreme Court show that First Amendment false speech case law is contradictory and unpredictable. This Article gives examples and concludes that legal liability for false speech will continue to be arbitrary and even susceptible to intentionally unjust decisionmaking if judges and juries individually and collectively disregard or downplay the necessity of an honest search for truth under the guise of tolerance and evenhandedness. If Americans wish to avoid an anything-goes “quagmire” about truth, they must—despite inevitable resistance in a civilization increasingly rife with skeptics—undergo transformations of their thinking habits to genuinely seek and successfully identify truth with charitable application in law. In addition, a certain kind of optimism is necessary to render consistent, predictable, and correct conclusions in false speech cases.

This Article’s implications may also extend beyond false speech to other areas of constitutional and common law.