Lies injure those who believe them. If a lie is about a person, and the lie is believed and acted upon, the person lied about is also injured. Thus lying involves at least one non-consenting party. By lying, of course, I do not mean fiction. Reasonable people (becoming scarcer all the time) know that fiction is not literally true. Fighting lies with the truth is the best strategy, but this strategy is often difficult because wealth, power, and access to the media are so unfairly distributed within our society. Thus seeking legal redress through civil suit is also a reasonable recourse.
The relation between information and action must be clearly understood. Information never “causes” action. Information belongs to a different realm of discourse than matter and energy. Information cannot be measured in units of mass, energy, force, etc. Information thus has no direct physical effect. Censors of left and right continually equate the obvious indirect effects of speech upon thought with direct causes of action, and rely upon this equation to justify censorship.
Our brains process information. We evaluate information and make decisions, and these decisions lead to action. The process, of course, can be short circuited. When we respond instantly to someone shouting “Fire!” we have not processed fire as information. We’ve responded to a stimulus, using primitive parts of our nervous systems. Information processing, like stimulus-response reactions, evolved because it helps us survive.
Give people false information and they may make terrible decisions and do terrible things. People, of course, have a responsibility to be skeptical. People should be very wary, for example, about believing anything they read in the Weekly World News or The New York Times. But sometimes reasonable people believe lies and innocent people are injured as a result. In such cases, it is just to grant people a legal cause of action. Both civil and criminal penalties may be appropriate. That’s why we have laws against libel, slander, fraud, false advertising, and falsely shouting “Fire!”.
I don’t, however, under any circumstances support laws against “dangerous” books, regardless of the amount of misinformation they contain. For example, an unsuccessful attempt was made to sue the authors of a book called The Courage to Heal. Many people believe (I am one of them) that this particular book abounds in false information that has caused, and will continue to cause, immeasurable harm. (I don’t believe, however, that the authors’ intent was malicious: I presume that they believe what they’ve written and that their hope was to help people, not to hurt them.) Although I disagree vigorously with its content, I believe absolutely that The Courage to Heal is protected by the First Amendment.
The limits-to-lying argument, of course, can be taken to absurd extremes. Examples of this are attempts to ban speech that “libels” groups, not individuals. If you permit this, it could become illegal to criticize any group whatsoever–even (or especially) Republicans. Another absurdity is the claim of anti-pornography activists that pornography should be banned because it “defames” women or tells men that women want to be raped. (Some pornography, of course, asserts that women enjoy sex and some censorship advocates–such as Andrea Dworkin–believe that intercourse and rape are equivalent.) But pornography is fantasy and is not taken literally by reasonable people. As for unreasonable people, who knows what can set them off?
I’m unsure whether permitting victims of malicious lies legal redress is an “exception that proves the rule” or a true First Amendment exception. I don’t support any form of prior restraint. And sanctions against lying are not content based. That is, truth or falsehood is not a form of “content” but rather a relationship between speech and reality. Nevertheless, permitting legal redress for lying certainly has a “chilling” effect, and this chilling effect can in some instances constitute censorship. In Britain, for example, it is much easier to sue for libel than it is in the US. I much prefer the more stringent libel requirements that exist in America.