Volokh agrees: The First Amendment probably protects lying to the media

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** FILE ** Hargrove Inc. employee Nick Schiopu restores the words to the Preamble on a float in Lanham, Md. during preparations for the upcoming inaugural parade in this Jan. 11, 2005 file photo. A study by a foundation that focuses on journalism and the First Amendment found that 51 percent of high school students questioned had not heard of Constitution Day when they are required by law to learn about the Constitution. (AP Photo/Kevin Wolf, File) Kevin Wolf/ASSOCIATED PRESS

Volokh agrees: The First Amendment probably protects lying to the media

A major First Amendment expert agrees that someone probably should challenge the constitutionality of a Virginia statute now in the news.

I wrote Monday that while Scott Ziegler, the recently fired superintendent of schools in Loudoun County, Virginia, surely deserves condemnation for flagrantly mishandling a transgender sexual assault case, he ought to challenge one of the three indictment counts leveled against him — the violation of Virginia Code § 18.2-209, which makes it a criminal misdemeanor to “knowingly and willfully” give a “false or untrue statement” to the media for publication or broadcast.


I posited that one need not defend Ziegler’s actions, or even believe that he doesn’t merit legal punishment on another count, to see the problem with the statute in question. When the First Amendment’s free speech protections are curtailed, even in order to penalize someone who ethically may seem to “deserve” it, all of us suffer a potential diminution of freedom.

Following up on Tuesday, the widely respected First Amendment expert Eugene Volokh supported that analysis. He wrote this to me: “Some laws banning knowing lies are indeed constitutional — consider libel laws, or laws banning false statements to government investigators. But a law that broadly bans all lies about people sent to the media is too broad; it would, for instance, ban self-serving lies about one’s own actions and accomplishments, which the Supreme Court has held are often constitutionally protected.”

Volokh later posted a fuller comment on the subject, writing that the statute “likely violates the First Amendment.”

This law should not be on the books without significant qualifiers. Former Superintendent Ziegler can do himself and all of us a favor if he challenges it, even if he does not escape justice on the two other counts for which he is charged.


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