Thursday, October 27, 2011
David S. Han, New York University School of Law, is publishing Autobiographical Lies and the First Amendment's Protection of Self-Defining Speech in volume 87 of the New York University Law Review (2012). Here is the abstract.
This article explores, through the lens of speech I refer to as “autobiographical lies,” the extent to which the First Amendment protects one’s ability to craft one’s public persona. Thus far, courts and commentators have generally neglected to address the degree to which this particular autonomy-based value - the interest in individual self-definition - carries distinct weight under the First Amendment. This is unsurprising, since it is rare that an issue arises directly implicating this interest in a manner that isolates it from more traditional free speech principles.
Recently, however, litigation has arisen surrounding the constitutionality of the Stolen Valor Act, a federal statute that criminalizes lying about having received military honors. The Act’s regulation of a particular subset of speech - knowing, factual falsehoods about oneself - uniquely crystallizes the question of whether, and to what extent, the self-definition interest merits protection under the First Amendment. By and large, there is no strong reason rooted in traditional First Amendment interests to protect these sorts of autobiographical lies. But if the self-definition interest has any meaningful constitutional force, then circumstances would surely exist under which such speech merits First Amendment protection, since freely choosing what to tell others about oneself - whether truth, half-truth, or falsehood - is a vital means of controlling how one defines oneself to the world.
After reviewing the Stolen Valor Act litigation (which has thus far divided the courts), this article outlines the doctrinal origins and basic characteristics of the self-definition interest. I argue that if one takes seriously the Supreme Court’s repeated assertions that the First Amendment is designed, at least in part, to preserve individual autonomy, then courts should accord at least some distinct constitutional weight to this interest. I then explore some of the practical implications of recognizing a constitutionally protected self-definition interest and apply these observations to the Stolen Valor Act, concluding that the Act, as currently constituted, should be deemed unconstitutional. Finally, I observe that a constitutionally protected right to define one’s public persona via one’s speech fits comfortably within the Constitution’s general protection of interests deemed essential to individual “personhood.”
Download the article from SSRN at the link.