Also known as: false statement of fact · false statements of facts
Written by attorneys — see sources below.
A factual assertion that is untrue. Such statements lack constitutional value under the First Amendment because they do not advance the search for truth and may cause reputational or other harm. Lawyers who make them to a tribunal must correct them upon learning of their falsity.
Saul represented Vertex Bio in a malpractice trial and told the court that a treatment chart entry was made on the day of the patient visit. After the court admitted the chart on that basis, Saul reviewed metadata showing the entry was added three days later. Saul must inform the court of the discrepancy to avoid leaving the tribunal under a material misapprehension.
Lopez posted on an activist blog that engineer Ortiz had accepted bribes from a turbine maker to approve unsafe equipment. The post was read by coworkers and industry colleagues. Ortiz can recover only by proving the accusation was a false statement of fact, was published, and was made with the required degree of fault.
In 1968, Chicago police officer Richard Nuccio shot and killed a youth named Nelson. State authorities prosecuted Nuccio and obtained a conviction for second-degree murder. The Nelson family retained petitioner Elmer Gertz, a Chicago attorney, to represent them in civil litigation against Nuccio. Respondent Robert Welch, Inc., publishes American Opinion, a monthly magazine expressing the views of the John Birch Society. In March 1969, the magazine published an article titled "FRAME-UP: Richard Nuccio And The War On Police." The article accused Gertz of participating in a Communist conspiracy to discredit local law enforcement, described him as a "Leninist" and "Communist-fronter," and claimed he had been an officer of the National Lawyers Guild, which it portrayed as a Communist organization involved in planning attacks on Chicago police during the 1968 Democratic Convention. The article contained numerous inaccuracies, including the false implication that Gertz had a criminal record. Gertz had served as an officer of the National Lawyers Guild approximately fifteen years earlier but had no involvement in planning the 1968 demonstrations. He had never been a member of the Marxist League for Industrial Democracy or the Intercollegiate Socialist Society. The managing editor of American Opinion made no effort to verify the charges against Gertz before publication and appended an editorial introduction stating that the author had conducted extensive research. Gertz filed a diversity action for libel in the United States District Court for the Northern District of Illinois. The district court ruled that the statements constituted libel per se under Illinois law. After a trial, the jury awarded Gertz $50,000 in compensatory damages. The district court later entered judgment for the defendant notwithstanding the verdict, applying the New York Times standard. The Court of Appeals for the Seventh Circuit affirmed. The Supreme Court granted certiorari to review the application of constitutional standards to defamation of a private individual.
View caseHustler Magazine published a parody advertisement depicting Reverend Falwell as having had an incestuous encounter with his mother in an outhouse. Falwell sued for intentional infliction of emotional distress. The parody could not support liability because no reasonable reader would take it as stating actual facts about Falwell.
Hustler Magazine, Inc., a magazine of nationwide circulation, and its publisher Larry Flynt published a parody of a Campari Liqueur advertisement in the November 1983 issue. The parody featured respondent Jerry Falwell and suggested that his first time sampling the liqueur occurred during a drunken incestuous rendezvous with his mother in an outhouse. The parody included a disclaimer in small print that it was an ad parody not to be taken seriously. Falwell filed suit in the United States District Court for the Western District of Virginia seeking damages for libel, invasion of privacy, and intentional infliction of emotional distress. The District Court directed a verdict against Falwell on the privacy claim. The jury found against respondent on the libel claim but awarded Falwell $100,000 in compensatory damages and $50,000 in punitive damages from each petitioner on the emotional distress claim. The United States Court of Appeals for the Fourth Circuit affirmed the judgment. The Supreme Court granted certiorari given the importance of the constitutional issues involved.
View caseThe Virginia State Board of Pharmacy prohibited licensed pharmacists from advertising prescription drug prices. Consumer groups challenged the ban as a restriction on commercial speech. The Court held that the prohibition could not stand because it suppressed truthful information about lawful transactions rather than false statements of fact.
Virginia law made it unprofessional conduct for a licensed pharmacist to publish, advertise, or promote any price for prescription drugs under Va. Code Ann. § 54-524.35(3). The Virginia State Board of Pharmacy regulated the profession to protect public health, safety, and welfare. It licensed pharmacists only after they showed good moral character, graduated from an approved school, completed up to twelve months of experience, and passed a Board examination. Licensed pharmacists remained subject to penalties or license revocation for negligence, fraud, or unprofessional conduct. Prescription drug prices varied sharply even within the same locality. In Richmond the cost of forty Achromycin tablets ranged from $2.59 to $6.00. In the Newport News-Hampton area the price of tetracycline ranged from $1.20 to $9.00. About ninety-five percent of prescriptions were filled with dosage forms prepared by manufacturers. Some pharmacies refused to quote prices over the telephone. An individual Virginia resident who suffered from diseases requiring daily prescription drugs, together with two nonprofit organizations whose members included many users of such drugs, brought suit against the Board and its members. The plaintiffs claimed the ban prevented them from learning where their limited resources could be spent most effectively. A prior challenge to the same statute brought by a drug retailer and one of its pharmacists had been rejected on due-process and equal-protection grounds. The three-judge District Court for the Eastern District of Virginia declared the quoted portion of the statute void and enjoined its enforcement. The Supreme Court noted probable jurisdiction of the Board's appeal.
View caseA television station aired the name of a rape victim obtained from public court records during coverage of the trial. The victim's family sued the broadcaster for invasion of privacy. The Court held that the First Amendment barred liability for publishing truthful information lawfully obtained from official records.
In August 1971, appellee Cohn's 17-year-old daughter was raped and murdered in Georgia. Six youths were indicted for murder and rape. Although there was substantial press coverage of the crime and of subsequent developments, the identity of the victim was not disclosed pending trial, perhaps because of Ga. Code Ann. § 26-9901 (1972). In April 1972, during court proceedings in which five defendants entered guilty pleas, reporter Wassell for petitioner Cox Broadcasting Corporation examined the indictments made available in the courtroom. Wassell obtained the victim's name from those public records and broadcast it on WSB-TV that day and again the following day. In May 1972, Cohn filed suit in the Superior Court of Fulton County against Cox Broadcasting and Wassell. The complaint alleged invasion of privacy arising from the television broadcasts that named his deceased daughter and sought money damages. The trial court granted summary judgment to Cohn on the issue of liability. The Georgia Supreme Court initially held that the complaint stated a common-law claim for public disclosure. On rehearing the court sustained the constitutionality of the state statute prohibiting publication of a rape victim's name. The United States Supreme Court postponed decision on jurisdiction to the hearing on the merits and reviewed the case after the Georgia Supreme Court rejected the constitutional challenge to liability.
View caseDun & Bradstreet issued a credit report to five subscribers stating that Greenmoss Builders had filed for bankruptcy. The report was false. Because the report concerned a private matter and was not speech on a public concern, the company could recover presumed and punitive damages without proving actual malice.
In July 1976, Dun & Bradstreet, a credit reporting agency that provides subscribers with confidential financial and related information about businesses under subscription agreements prohibiting further disclosure, sent a report to five subscribers stating that Greenmoss Builders, Inc., a construction contractor, had filed a voluntary petition for bankruptcy. The report was false and grossly misrepresented respondent's assets and liabilities because the petition had actually been filed by one of Greenmoss's former employees. On the same day, Greenmoss's president learned of the report while discussing the possibility of future financing with the company's bank, immediately called Dun & Bradstreet's regional office to explain the error, requested a correction, and asked for the names of the firms that had received the report so he could assure them of the company's solvency. Dun & Bradstreet promised to investigate but refused to divulge the names. After confirming the report was inaccurate, it issued a corrective notice on or about August 3, 1976, to the five subscribers stating that a former employee had filed for bankruptcy and that Greenmoss continued in business as usual. Greenmoss expressed dissatisfaction with the notice and again requested the subscriber names, which Dun & Bradstreet again refused to provide. Greenmoss then brought a defamation action in Vermont state court alleging injury to its reputation and seeking compensatory and punitive damages. At trial, evidence established that the error had been caused by a 17-year-old high school student paid to review Vermont bankruptcy pleadings who inadvertently attributed the petition to Greenmoss, and that Dun & Bradstreet did not attempt to verify the information with the company before reporting it despite routine practice to do so. The jury awarded Greenmoss $50,000 in compensatory damages and $300,000 in punitive damages. The trial court granted Dun & Bradstreet's motion for a new trial due to dissatisfaction with its charge to the jury. The Vermont Supreme Court reversed the trial court's grant of a new trial. The United States Supreme Court granted certiorari.
View caseA plaintiff must show a false and defamatory statement of fact, publication to a third party, fault on the part of the defendant, and either actionability without special harm or actual harm. The statement must be one that tends to harm reputation in the community.
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A lawyer must correct a false statement of material fact or law previously made to the tribunal once the lawyer learns of its falsity. The duty continues until the end of the proceeding even if the lawyer did not know the statement was false when first made.
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No. Only certain historically recognized categories of false speech, such as defamation, fraud, perjury, and false advertising, are unprotected because of the harms they cause. A statute that criminalizes false statements solely because they are false fails strict scrutiny.
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…not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan ,…