Lies and Free Speech Values

In the short time since Seana Shiffrin published Speech Matters, ‘fake news’ and ‘alternative facts’ have become full-blown phenomena, and various forces have destabilized the line between truth and falsity. Now more than ever, Shiffrin’s project is one of urgent importance. This essay examines Chapter Four of Speech Matters, which asks the crucial question: when and how may the law regulate lies? Shiffrin concludes that the law could regulate lies much more often than it does, though sometimes it ought not to for pragmatic reasons. For all of Shiffrin’s masterful explication, there is perhaps more to say in the space between Chapter Three’s moral account of free speech and Chapter Four’s legal one. Setting existing doctrine aside, how would a society translate the moral principles of Chapter Three into a system of law? Which worries are intrinsic to free speech, and which are purely pragmatic? In other words, what does a thinker-based account of law look like?