[I'm working on a draft article called When Are Lies Constitutionally Protected?, and I thought I'd serialize it here, since I still have plenty of time to improve it; I'd love to hear your thoughts on it! (You can also read the whole article here; all the posts about it will go into this thread.) I began with a brief discussion of constitutionally unprotected lies, and turn here to constitutionally protected ones.]
But some lies, the Court told us, are indeed constitutionally protected—again, not just when they are said without "actual malice," but even if the speaker knows the statements are false. This includes "false statements about philosophy, religion, history, the social sciences, the arts, and the like," at least "in many contexts." (I assume physical sciences would be covered as well.[2]) More broadly, this may include lies about any matters that are not "easily verifiable," or where "it is perilous to permit the state to be the arbiter of truth."
Five of the Justices in United States v. Alvarez took this view: Justices Breyer and Kagan in the concurrence and Justices Alito, Scalia, and Thomas in the dissent. And it seems likely that the four Justices in the plurality, who generally took a more speech-protective view than the concurrence or the dissent, would have agreed.
When it came to the lies prohibited by the statute involved in Alvarez itself—lies about having been awarded military decorations—the Justices, put together, appeared to apply intermediate...
A federal grand jury in St. George returned an indictment today charging a Utah podiatrist and two nurses who worked for him with fraud for their roles in a $29 million Medicare false claims case....