Introduction
There is something oddly instructive about April Fools' Day. Not because deception is admirable, or because the law has anything particularly useful to say about pranks. But because the day - as a social practice - brings into focus something that constitutional discourse often struggles to articulate cleanly, i.e., a commitment to open discourse is not the same as a commitment to accurate discourse.
One way to see this through is with the mechanics of a prank itself. April Fools' works (at least when it does) - because everyone, at some level, knows the rules. The deceiver deceives; the deceived is deceived; and more crucially, the deception is eventually made known. The lie is not the endpoint. It is just one layer within a multi-layered structure that presupposes disclosure. Nobody walks away from a well-executed April Fools' prank concluding that communication has broken down. If anything, the experience sharpens one's instincts. I was fooled once. I must be careful the next time.
In this post, I do not wish to argue that constitutional free speech doctrine should be modelled on April Fools' Day. That would be absurd and, frankly, the sort of argument that deserves to be published on a fools’ day. But the analogy does useful work as a starting intuition, and one worth laying bare on the blog.
The Standard Objection(s) to False Speech
The standard objection to protecting false speech goes roughly like this - falsehood has no value; it distorts rather than informs; and a constitutional order has no principled reason to protect statements that undermine the very premises of democratic participation.
To be fair, the argument is not completely without teeth. It proves a little too much. Democratic discourse has never been - nor has it ever pretended to be - a space in which only verified truths circulate. It is a space of claims and counter-claims - exaggerations and strategic omissions - and of course, some outright lies.
What distinguishes the system, however, is the openness. Statements, accurate or otherwise, are expected to be contestable. The audience is not a passive recipient of pre-screened information. It is instead, an active participant in an ongoing communicative process. To insist that only true statements may enter this space is to then misunderstand what the space is in the first place. For it treats truth as a precondition of speech rather than something that speech, over time (through discourse), aspires to produce.
The April Fools’ Analogy
This is where the April Fools' analogy earns its keep. The prank works (if it does!) - not because the audience is passive, but precisely because it is not.
Being fooled is, in a strange way, proof of engagement. The recognition that follows - the moment of correction - is itself part of the communicative process (that I speak of). Scale this up and you have something close to what public discourse is supposed to do. Citizens encounter claims, evaluate them, question them, and sometimes accept them incorrectly. The system's response to error is not pre-emptive suppression, but the creation of conditions (counter-speech, education, etc) under which correction becomes possible.
Some Gray Areas
None of this is to be glib about the harms that false speech can cause. Outside the limited context of April Fools' Day, lies do not come with built-in correction mechanisms. The harms are real, often irreversible, and disproportionately visited upon those with the least power to respond effectively.
At any rate, a regime that empowers the State to identify and suppress falsehood in public discourse is making a much more structural choice about who adjudicates truth. This is so, because it shifts the burden from citizens evaluating competing claims to authorities certifying what claims may be made. Besides, nobody ever really seriously argues that free speech is an absolute bar on all regulation of false statements (targeted regulation of specific, demonstrably harmful falsehoods such as fraud, perjury, defamation, etc - have always been part of the law of the land).
There is a further wrinkle worth noting. The assumption underlying strong anti-falsehood positions is that the State can reliably identify falsehood. This is because apparently the category is determinate enough to be workable as a standard in law.
In practice, much of what circulates in public discourse as “false” is better understood as contested. Statements about policy effects, about historical interpretation, about the likely consequences of proposed legislation. These are not false in the way that two plus two equals five is false. They are uncertain / disputed / and more often than not ideologically inflected. A falsehood-suppression regime that captures only clear-cut lies would be narrow, indeed. But one that reaches into contested territory would be something rather more troubling.
Concluding Thoughts
What, then, is the constitutional commitment?
It is not to the truth of individual statements. Nor is it to the proposition that all speech is equally valuable. It is, but, to the integrity of the process through which truth is argued over and arrived at.
April Fools' Day, for all its frivolity, captures that intuition rather well. Communication does not break down in the presence of falsehood. The prank ends, the realisation follows, and one is left - slightly embarrassed, but a little more careful for the next time. What would genuinely undermine communication is prior removal of the very capacity to be misled and recover from it. For a public that has never had to confront falsehood is unlikely to have developed the faculties that democratic participation requires.
The defence of false speech, in that sense, is not so much a defence of lying as it is a defence of the practice of not being lied to unchallenged. And that, perhaps, is the distinction worth insisting on - even on days that are not the first day of April.