first amendment

The Heavy Cost of Costless Lies

Shuang Liu, MJLST Staffer

Does repetition of a lie make it truer? “What a ridiculous question,” you might think. But according to psychological experiments, the answer is yes.

In a series of psychological experiments, scientists provided true and false statements to participants, repeating only some of the statements, and asked the participants to evaluate whether the statements were true or false. The results showed that people typically evaluated repeated statements truer than those that appeared just once. The effect of repetition was summarized by Christian Unkelbach et al. in 2019:

The effect appears with information ranging from trivia (“The thigh bone is the longest bone in the human body”) to consumer opinions (“Billabong shampoo leaves hair shiny with no residue”) to false news items (“Donald Trump sends his own plane to transport 200 stranded marines”). It is present with repetition intervals from minutes to weeks to months.

In addition to the frequency of statements, temporal order also affects people’s trust in statements. For example, if people read the statement “Falstaff was the last opera of Verdi” first and the statement “Othello was the last opera of Verdi” later, they are more likely to believe the latter statement is false. To make things worse, the phenomenon of confirmation bias reveals that when a person has drawn a conclusion on a given matter, either consciously or subconsciously, the person is inclined to disregard information that contradicts the conclusion.

The implication of these experiments can be huge. Consider a scenario where a famous person says “COVID is not real” with literally no explanation. People will then hear it countless times from various sources including the press, and potentially family, friends, and collogues. As a result, some of these people will tend to believe this lie more than later statements that contradict it but are true. When the lie is closely related to public interest, just as the one in this example, its negative effects are serious.

Nevertheless, the law does not defend people against such serious lies at all. The First Amendment protects free speech including false statements, as long as no defamation issue is involved. Generally, there are two reasons for not outlawing lies. Firstly, the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” Secondly, the “First Amendment freedoms need breathing space to survive.” Penalties for lies will also deter statements that are believed to be true when made, but could be disproven later. However, as will be discussed below, these two reasons are not adequate for allowing lies to be legally costless.

To begin with, the presupposition that truth can be gathered from various contradictory sources does not reflect the reality. Most information people obtain today is secondhand. People can hardly confirm the truthiness of most information directly. Therefore, people have no better option than choosing to believe some of the accessible sources. This choice, as illustrated above, is far from rational. You may think that simple repetition and temporal primacy cannot mislead you. But statistical results show a considerable portion of people can and will be fooled in such ways. Moreover, confirmation bias suggests once a person believes a lie, the person will strengthen the lie in his or her mind by selectively absorbing future information. Accordingly, the presumption that truth can be found from various sources may hold in the scenario of a discovery proceeding in litigation, for example, but never for most people in their daily life.

Moreover, the concern that punishing lies may also deter true statements can be dispelled by a systematic solution. Firstly, whether a speaker is liable for his or her false statement should not turn on whether the statement is false objectively. Rather, the test should be whether the speaker, as a reasonable person, has had sufficient factual bases for the statement before making it. After all, even respectable scientists have made false statements about the nature of the universe, but hardly can anyone say they were lying. Additionally, in order not to disrupt people’s normal life, the requirements of not lying should be imposed only on public officials when they are speaking in their positions. This role-based requirement is consistent with the well-established policy that government officials “are to be treated as men of fortitude, able to thrive in a hardy climate.” It is also aligned with the fact that statements of public officials are more likely to be viewed, heard, reported, and spread, and hence are deserved to be more strictly regulated. Lastly, to be held liable for lying, the false statement should bear some relation to the public interest. Trivial lies that do not hurt the public interest are not worth the legal cost for preventing them.

As can be expected, to outlaw false statements, even only those made by public officials, entails a radical change in the Constitutional law. But the efforts will pay off because people will be less harmed by lies, and the government will receive more credence from people as a result.


A KISS Principle for the Right of Publicity

Alexander Vlisides, MJLST Staff

The right of publicity tort is meant to balance two rights: a person’s limited right to control uses of their name or likeness and the right of artists and content creators to exercise their First Amendment rights. Unfortunately, courts have not addressed the First Amendment rights at stake in right of publicity cases with the deference or clarity that is required in other First Amendment contexts.

In Volume 14 of the Minnesota Journal of Law, Science and Technology, Micheal D. Murray argued that content creators should navigate right of publicity issues through common sense and an ethical approach to appropriating another’s likeness. In “DIOS MIO–The KISS Principle of the Ethical Approach to Copyright and Right of Publicity Law” Murray advises content creators to avoid legal issues by following the DIOS MIO acronym: “Don’t Include Other’s Stuff or Modify It Obviously.” In recent right of publicity decisions, courts have not conformed with this common sense approach.

Ryan Hart and Sam Keller are former NCAA quarterbacks. EA sports made a video game called NCAA Football, which features players that look and play exactly like Hart and Keller. Each of them sued EA sports, the makers of NCAA football, and the NCAA for violations of their right of publicity. In Hart v. Electronic Arts and In re NCAA Student Athlete Name and Likeness Litigation, the U.S. Courts of Appeals for the Third and Ninth Circuits, respectively, both found that EA had violated the players right of publicity, meaning that they would need to pay to use players’ likenesses in the video games. In many ways this seems like a very equitable outcome. These college athletes receive none of the profits while EA and the NCAA make hundreds of millions of dollars from these games.

However these cases give too little weight to the First Amendment rights at stake and provide little clarity for content producers to know what is protected from suit. When applied outside the sympathetic facts of this case, there is little to distinguish this video game from other works traditionally thought to be protected by the First Amendment, such as biographical books and films. The dissent in In re NCAA concluded that “[t]he logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context.”

In addition, the fundamentally unclear nature of right of publicity analysis is demonstrated by a paradox within the Hart decision. In the NCAA football games there are two uses of Ryan Hart’s likeness. One is the digital avatar that EA artists and designers created to look like him and operate in the interactive world of the game. Another is a simple photograph of him that is used as part of an introductory montage with other football players. The court found the avatar was not protected, but the photograph was. In other words, the court concluded that an animation of Hart, produced by artists, designers and engineers and placed into an interactive virtual world, is a “literal” depiction of Hart and thus unworthy of First Amendment protection, while a photograph of Hart, shown in a montage with other football players, has been transformed to be predominately the creative expression of its designers. A failure to clearly identify criteria and values informing right of publicity analysis led to this paradoxical result.

First Amendment protected creative content should not be subject to so inscrutable a standard. Courts should attempt to give content producers a more workable right of publicity standard by following Murray’s advice to KISS: Keep It Simple, Stupid.