[Background: The Stolen Valor Act criminalizes lying about military honors. Alvarez is a case before the Supreme Court wherein a California man lied about receiving the Medal of Honor, was convicted, and is now challenging the law on First Amendment grounds. Dahlia Lithwick did a really excellent job writing about it at Slate.]
Lies We Hate
As a first cut, it seems to me that the lies we truly despise are the ones that are aimed at either intentionally injuring someone, or are at least told without consideration for others. In the criminal context, we call it fraud.
When you intentionally deceive another for the purpose of your gain (or another's loss), the law may get involved (perhaps not as much as many wish it did...) But not all malicious lies are actionable, and even those that are don't usually result in suits. How many dirty rumors have been spread without a slander suit?
The dividing line doesn't appear to be hurtful/harmless. We can imagine lots of very hurtful lies that either aren't actionable or are at least rarely actioned. You could cruelly deceive a child - or adult, but child feels more visceral - into any number of things (I started typing some examples and just got depressed). This would make you an unquestionably terrible person, and anyone who was caught doing something like this would be ostracized. They would be duly socially punished for their lies, even though the formal law wouldn't deign to be involved.
Nor, as the previous example also illustrates, can we say that the formal law jumps in when lies reach some sort of morally repugnant Rubicon. Again, lying to a child with intent to disappoint or emotionally harm is - to my mind - obviously morally appalling. And yet many of us would shy away from criminalizing it.
Lies We Begrudgingly Accept
I'm certainly not breaking any new ground when I suggest that people may not be entirely honest when they are... let's say amorously motivated. I'm actually not sure if such lies are better put in this section or the next; after all, we went en masse to a movie entirely about lies two men tell to get women into bed and made heroes out of them.
But more to the point, we seem to accept the lies and exaggerations that make up singles bar flirtations as part of the cost of doing business. We discount what people say in situations where they have an incentive to bend (or break the truth)
We punish these lies, but not all the time nor often severely. A cad who develops a reputation as such will be punished by having the efficacy of his or her lies diminished, by having the veracity of even true statements questioned (pretty sure there's a story about this... a boy, a wolf, crying about it... something), and by just generally being considered a sleazebag.
Particularly in the age of instant information, big lies about things like the Medal of Honor (the issue at the heart of Alvarez) are just so easily caught out. If you tell me you won the Presidential Medal of Freedom, I'm going to ask what for, act impressed, and then google it when you go to the bathroom. The point is that these lies are treated like the fisherman who tells you she caught the big one.
Whenever someone tells you the size of the fish they caught, you subtract inches. (Whether we subtract inches from other boasted figures is... come on: this is a family blog.) But we don't think less of the fisherman most of the time, we just treat it as par for the course; it's an accepted lie. But it's not that these "accepted" lies don't hurt anyone. Maybe not the fish, but I think a compelling case could be made that telling some sorts of lies to get someone into bed "hurts" that person. I don't think that's the appropriate dividing line. As we'll see below, we occasionally valorize lies that hurt others.
No, I think we mostly draw the line at motivation. It's when a lie aims to hurt someone - or to enrich yourself with wanton disregard for others - that we judge the liar for his or her malicious intent, rather than for the lie itself. The lies we accept I think we accept because we understand the self-interest of the liar but don't attribute a devious or malicious intent to hurt others. We would judge Owen Wilson and Vince Vaughn's characters a lot more if they lied to women to get them into bed with the express intention of breaking their hearts later, rather than in an effort to find some no strings attached sex.
Lies We Like
There are times when lying is socially acceptable, even the preferred path. Lies to spare someone's feelings - white lies - might save someone needless angst. There are lies with noble purposes; few people - with apologies to Kant - would say it is never morally acceptable to lie.
Two final examples. First - and with an admittance that this is trite - bluffing. Because it's sanctioned by both the official rules and informal practices of poker, intentionally deceiving others with the aim of self-advancement is an admired skill.
On a more serious note, the ability to mislead others as to your aims and needs to secure an advantage is a taught a valued skill in the business world. Negotiators assume that not all is revealed and that misrepresentation will be a part of the game. And yes, fraud and negotiating in bad faith may lead to concrete legal action. But a certain degree of artful misrepresentation can be an admired - and lucrative - trait.
The Problems with Alvarez
Just a few points to recap and tie this all to Alvarez. First, not all lies were created equally. Some are good, some are bad, some are really bad; some are illegal, some are irritating, some are celebrated. But the law at issue in Alvarez doesn't really do much to say why we ought to put lies about military decorations in one box rather than another. Much has been made of the fact that it doesn't hurt others, as we require of other criminalized lies like fraud and slander. But I'm not totally convinced this is a fruitful angle. While that does seem to make the Stolen Valor Act an anomaly, it skates right over the fact that there are hurtful lies we don't criminalize. Things are more complicated that might otherwise appear.
Congress seems to have just assumed that lying about such honors is a repugnant enough act that we would all agree it out to be outlawed. This is certainly debatable, but even assuming it is that repugnant, it seems pretty clear that mere moral repugnance isn't usually enough to criminalize speech. In fact, we have a pretty long, storied tradition of free speech in this country that indicates the contrary. Without getting any deeper into the tangled web of First Amendment jurisprudence, let me leave it at this. Lying about military honors seems to fall into the category of speech that we find troubling enough that we punish it socially, something akin to rampant lying at the bar that is bound to catch up to you. We also tend to err on the side of allowing speech when we aren't sure about criminalizing it. I'm not as concerned with the line-drawing that's consumed the legal commentariat, but I do think the conversation is lacking awareness of the social rules that surround lying. Take this as a small step in the other direction.
No comments:
Post a Comment