Consumer Law

Falsity, sincerity and implication

By Rebecca Tushnet

Mark Spottswood, Falsity, Insincerity, and the Freedom of Expression, 16 William & Mary Bill Of Rights Journal 1203 (2008)

This thoughtful and useful article argues for greater constitutional protection for false but sincerely held claims as valuable in themselves, not merely in order to provide breathing room for truthful speech. By contrast, false and insincere statements do not promote overall truth.

I don?t fully buy the insincerity argument: though there are through-and-through fraudsters, often people who tell lies believe that they are telling a larger truth?see, e.g., the existence of WMDs in Iraq and whether the US tortures. If sincerity is a pointer to the existence of an important debate on which we should inform ourselves, then I have difficulty saying that sincerity in the ultimate belief?e.g., should we be in Iraq??shouldn?t count.

More generally, I do not understand the idea that lies deprive listeners of autonomy while truths (or sincere falsehoods) don?t. Whether true or false, a nonperformative statement leaves it to the listener to act, though we can often predict how particular statements will influence action. At the very least, the concept of ?autonomy? used to make this claim contains an implicit definition of autonomy as freedom from manipulation by liars that turns the proposition ?lies harm autonomy but non-lies don?t? into a tautology. I can, and do, define autonomy differently. And indeed, Spottswood slides from lies to manipulation (?An individual?s dignitary interest in speaking his mind cannot extend to the willful manipulation of others.?)?but one can manipulate with the truth, or with statements lacking any truth value, as well?e.g., ?I will sell you this tasty banana for $.79? or ?the quicker picker-upper.? The clever manipulator takes advantage of general features of human psychology, like our tendency to feel obligations when we perceive we?ve been given a gift (free with purchase!), but then again so does the liar, who must make her lie plausible to let it do its work.

I?m always glad to see Gricean implicature applied to legal issues. (Richard Craswell?s recent article in the Virginia Law Review is another good example; my colleague Greg Klass has a response to Craswell up at SSRN.) Spottswood argues that we can use implicature to help manage the gradients between true and false, and sincere and insincere claims, since we can look at ordinary rules of implication in context to assess the likelihood of misunderstanding or deception.

Unfortunately, I can?t share Spottswood?s optimism with respect to the truth-promoting benefit of false but sincere speech when it comes to commercial speech. I should note that he points out that the question of a corporate entity?s sincerity may be a difficult one?in fact, his focus on sincerity might be thought to support the proposition that a corporate speaker has no freedom of speech rights in itself, and any protection for commercial speech must be derivative of the audience?s interest in hearing truthful claims. Since his argument is not that sincerity is a moral value but that sincerity prompts a valuable search for factual proof and disproof, however, he might well contend that the audience?s interest is coextensive with ?sincere? corporate speech, however defined.

He argues that false but sincere commercial speech should receive the same constitutional protection as true commercial speech. He points out that, for example, winemakers are currently prohibited by the ATF from making health claims for wine without significant qualifications, despite growing evidence in favor of such health claims. This is a fairly standard argument about regulatory mistakes in assessing truth?sincerity works here as a limit on the kinds of commercial speech that should get heightened protection.

He also accepts that ?local? falsehoods might be so harmful that they should be regulated regardless of sincerity. The classic example involves the safety of drugs?though he argues for compelled disclosure of the regulator?s position, rather than suppression of the drugmaker?s own claims. I think this baby-splitting is doomed to failure; research on disclosures makes pretty clear that consumers simply won?t read that far. See, e.g., Paula Fitzgerald Bone & Karen Russell France, Policy Makers? Paradigms and Evidence from Consumer Interpretations of Dietary Supplement Labels (showing that the presence of a disclaimer like the one Spottswood advocates has no effect on consumers? beliefs about (1) the first-order claim made by the advertiser or (2) whether a regulatory agency has evaluated and approved the advertiser?s claim).

Spottswood?s overall argument depends on the idea that it is the contest over the truth of a false claim that improves overall knowledge?not the false claim itself. Spottswood emphasizes the role of credibility in assessing competing truth claims. But research reveals, for example, that people forget source before they forget an assertion, so that even an incredible source can create false beliefs a few days down the line, and, paradoxically, refuting a false claim can increase audiences? belief in that claim. Likewise, ad repetition can create belief when there was initially disbelief, and ads can change attitudes towards products without adding any new information (see the work of Scott Hawkins).

Spottswood also discusses the epistemic benefits for nonexperts of learning that experts disagree, but does not in my opinion adequately account for the biased ways in which disagreement gets presented in the media, which?when it actually features factual disputes?tends to put one position against the other as if all disagreements were of equal credibility and featured roughly equivalent evidence on both sides. Moreover, with respect to commercial speech in particular, I?m not sanguine that people will learn about factual disputes in helpful ways. Who disputes the claims of supplement purveyors? Spottswood mentions Consumer Reports, but not many consumers subscribe, and competing supplement makers have few incentives to attack the level of scientific evidence for supplements generally, even if they have incentives to evaluate competitors? claims to purity. It comes down to intermediaries: do we have reason to think that the actual level of confidence among experts will be adequately communicated?

Along with my skepticism about the correctability of false (though sincere) commercial speech, I am dubious of reinstating any fault-based line in advertising regulation. We moved away from fraud in consumer protection to a more strict liability scheme for good reasons; clever defendants can regularly at least create doubt about their actual beliefs. I doubt that the costs of a sincerity defense are worth the benefits, at least in the area of commercial speech regulation, which is where it would likely be the most important?given that the other area of speech regulation in which falsity routinely matters is defamation, where sincerity is already pretty important.

Full post as published by 43(B)log on July 01, 2008 (boomark / email).