Truth, Lies, and The Libby Trial: How Our Society Treats Lies and Those Who Tell Them,
and Why Truth-Tellers Are Sometimes Punished More Harshly than Liars

By EDWARD LAZARUS

Thursday, Feb. 01, 2007

These days, the news is rife with stories about the way our society responds to the telling of truths and lies. The most prominent headlines are reserved for the trial of Scooter Libby, who is charged with lying to federal investigators and to a grand jury. (I wrote about the charges against Libby in my last column). But the breadth of current events issues related to the issue of truth-telling is remarkably widespread.

One function of the law, of course, is to reflect our collective judgment about the "badness" of different forms of conduct. And so it seems worthwhile to consider the hierarchy of punitive measures that we impose on liars, in order to assess whether we are sensibly calibrating our moral opprobrium and legal sanctions.

After sketching the hierarchy, I will argue that it's not at all clear that we are punishing particular lies in ways that reflect their true gravity.

At the Top of the Hierarchy: The Lies (and Truths) For Which We Jail the Tellers

At the top of the punishment pyramid are those lies we consider so reprehensible that we will send people to jail for telling them.

Among current news stories, the Libby trial is the most obvious example. Society places a very high value on telling the truth to government investigators, or to grand juries investigating crimes. The same is true of sworn statements in court; if false, they constitute the crime of perjury. In such circumstances, deliberately misrepresenting the truth is a felony.

By the same token, however, you can also go to jail for telling the truth - at least if you aren't forthcoming about how you came by the truth.

Consider the BALCO steroids scandal, in which a federal grand jury has been considering whether to indict a variety of professional athletes, including baseball star Barry Bonds, in connection with their alleged use of illegal performance-enhancing drugs. Not long ago, a couple of enterprising reporters wrote a very well-received book about the scandal, based in part on secret grand jury testimony that had been leaked to them.

It isn't a crime to receive or to publish such grand jury testimony (though it is a crime to leak it). Moreover, no one has suggested that the two journalists somehow misreported or distorted what was said in the grand jury. And it's pretty hard to argue that the journalists' work was not of substantial public interest. But - like journalists across the country who come into possession of information relevant to whether someone else has committed a crime -- they've been threatened over and over again with jail for refusing to reveal their sources. In this instance, jail would technically come not in the form of a criminal penalty, but in the form of a "contempt of court" sanction - meaning the reporters would hold the key to their own release, if they revealed their sources. Yet the time spent in jail would have the same punitive effect.

(Along the same lines, Judith Miller, the former New York Times reporter who testified this week in the Libby trial, went to jail for several months because she would not reveal her sources.)

To be sure, deliberate deceptions that cause direct harm are sometimes punished criminally. Enron fits this description. The top executives suckered investors with lies, and now they are headed to the pokey -- as my eight-year-old would say.

Still, juxtaposing the Libby trial and the BALCO situation suggests that the touchstone for invoking criminal penalties is often less the sin of lying itself, than the sin of obstructing the government's investigatory function.

Lying to keep the government from learning things - even as in Libby's case, when the lies do not actually cover up criminal activity (as I explained in my prior column)-- is a serious criminal offense. But the reason we so harshly punish this conduct is not because lies obscure the truth in the abstract. It's because the lies prevent the government from learning the truth. And, in accordance with this priority, telling the truth about a matter a great public interest - as the BALCO reporters did -- is no defense to the crime of refusing to tell the government from whom these truths were learned.

Indeed, perversely, it is often much easier to prosecute truth-tellers than liars. Proving that someone intentionally lied is often very hard, because evidence of the liar's intent is often hard to find. By contrast, it is self-evident when a truth-teller refuses to reveal sources.

The Next Step Down in the Hierarchy of Lies: Lies for Which There Are Civil Sanctions

When society wants to discourage conduct without resorting to the extreme of criminal (or contempt-of-court) sanctions, it provides civil remedies for wrongdoing.

Lies are often subject to civil sanction. For example, so-called garden variety frauds, where one person tricks another person into doing something through deceit, can form the basis for a civil tort case.

Still, we often give liars a fair amount of license, at least as a practical matter. Telling nasty lies about someone in public - defamation - is certainly actionable in court. But if the person defamed is reasonably well-known, or if the subject matter of the lie is something of public concern, we make it terribly hard - and usually counterproductive -- to hold liars responsible. This state of affairs is quite intentional - the result of the Supreme Court's judgment, in New York Times Co. v. Sullivan, to protect the First Amendment at the expense of potential defamation plaintiffs.

The recent lie about Senator Barack Obama's early education in Indonesia illustrates the point. A right-wing website called Insight published a real whopper that Obama had been educated, as a six-year-old boy, in a madrassa - a radical Islamic school of the kind commonly associated with terrorists. Fox News then picked up the story. It's hard to believe that Insight didn't have a pretty good idea that it was spreading a lie (and the same may well be true of the FoxNews anchors who parroted the story). It appears that Insight nor FoxNews made little or no effort to check out the story, which bore obvious indicia of falsehood. And CNN quickly debunked the claim by actually visiting the school.

As a society, however, we seem to have decided that, all things considered, it's better that "journalists" get away with this sort of stuff. To prevail in a civil action for defamation, Obama would have to show that Insight either knew the story was false or published it in "reckless disregard" of the truth. Under this standard, then, Obama would have to show much more than that Insight failed to investigate the madrassa claim before spreading it. Moreover, most defamation victims will never pursue claims in the first place -- because damages are hard to show, and because the process of bringing suit has the inevitable consequence of spreading and potentially reinforcing the false and defamatory message.

Ironically, Truthful Speech Can Have Harsh Consequences in Civil Actions

If current events are any judge, it may under some circumstances be much easier to succeed in a civil action alleging damages from truthful speech, than one alleging damages arising out of lies.

Right down the hall from the Libby trial, Congressman John Boehner, a top-ranking Republican, has been suing Rep. Jim McDermott, a Democrat, for truthfully revealing a politically compromising phone call Boehner participated in some years ago.

Back in 1996, two private citizens intercepted a cell phone conference call, in which Boehner and other Republican lawmakers were strategizing about how to handle then-Speaker Newt Gingrich's ethics problems. Boehner and the others discussed, for example, whether Gingrich would voluntarily accept a fine and rebuke from the House.

The two eavesdroppers unlawfully taped the conversation and then passed the tape on to their local representative, who in turn gave it to McDermott, a member of the House Ethics Committee. McDermott then played the tape for various news organizations.

No one doubts the authenticity of the tape. Nor does anyone doubt that the tape contained real news about one of the more important issues of the day. Nor does anyone suggest that McDermott was in any way involved in the illegal interception and taping of the call.

But Boehner has sued McDermott for invading his privacy. And Boehner has won a large money judgment at trial. Now, he is defending that judgment in a federal court of appeals that has already validated the basic theory underlying his suit.

So on the civil law side, as well as the criminal, it turns out that telling the truth can get you in as much -- or more -- hot water than deliberately lying.

It would be silly, of course, to pretend that a spin through that current set of headlines gives even close to a full picture of whether, as a society, we generally strike the right balance between punishing lies and reinforcing the value of truth. But it's also hard not to scratch one's head and wonder whether we have things quite right.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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