Prohibiting some types of lie doesn't meaningfully undermine the moral case for freedom of speech if the intent of the lie is immoral.
As referred to previously, it is socially unacceptable to habitually tell lies (4.4.2.5), but that does not mean that there should be an all-encompassing law against lying. Such a law would be unenforceable in practice, given the enormous number of ‘little white lies’ that are told to soothe people’s feelings. And it would sometimes raise questions about whether a lie was intentional. It may be thought that prohibiting some types of lie is appropriate, though, where damage can be proved – but there are practical difficulties:
· Libel and slander can damage people’s reputations, so it is appropriate to consider legal action against them. People can take each other to court in some jurisdictions, to sue for damages using the civil law of torts (5.2.4), but that has two serious disadvantages: the cost might prevent many people from being able to bring a prosecution; and the further publicity provided by the court case might exacerbate the damage caused.
· An issue that has come to the fore recently is that of subverting political discourse with ‘fake news’, as discussed later (6.4.2.6). This is serious, having been credited with changing the outcome of elections, but there are practical difficulties in criminalising it: it isn’t possible to prosecute perpetrators in other countries (5.3.4); it spreads so fast on social media that the law could never catch up with it; people might not realise that it is fake; and it is possible to use the formula “it has been reported that…” to evade responsibility for the accuracy of the story. In practice, fake news is currently being combated in many countries by putting pressure on service-providers to remove damaging material – which is probably safer than introducing State censorship, because Censorious governments are abusing “fake news” laws in Brazil, Hungary and Russia among others to suppress dissent.
Knowingly telling lies in court, to pervert the course of justice, is considered a serious crime in almost all jurisdictions: there are severe penalties for perjury. The complication in a prosecution for perjury is to determine whether or not the defendant knew that it was a lie when it was told.
Lies to stir up ethnic conflict are part of a wider topic, discussed in the next section (5.4.6).
(This is an archive of a page intended to form part of Edition 4 of the Patterns of Power series of books. The latest versions are at book contents).