If quacks and bunko artists can be convicted of fraud…
Daniel Dennett throws down a challenge to various pieties.
I also look forward to the day when pastors who abuse the authority of their pulpits by misinforming their congregations about science, about public health, about global warming, about evolution must answer to the charge of dishonesty. Telling pious lies to trusting children is a form of abuse, plain and simple. If quacks and bunko artists can be convicted of fraud for selling worthless cures, why not clergy for making their living off unsupported claims of miracle cures and the efficacy of prayer?
Because of the free exercise clause, that’s why, or at least it’s one reason. The free exercise clause is a very problematic little item. One can see why it appears, and in some form perhaps is, necessary in a world where powerful people use their power to interfere with less powerful people in any way they can find, but one can also see why in the form it takes in the First Amendment to the US consitution it gives away too much. It sounds noble to ban interference with the free exercise of religion, but the free exercise of religion can mean animal torture, it can mean witch hunts, it can mean genital mutilation, it can mean forced marriage, forbidding girls to go to school, preventing children from getting needed medical treatment. As Dennett says, it can mean preachers telling people whoppers, and even extracting money from them on the basis of whoppers. It’s not all good.
I certainly sympathize, but I cringe at the real repercussions of giving government (or private litigants) the power to punish what IT determines are “pious lies.”
Given the predilections of the American populace, surely the first victims of the “punish falsehoods about religion” policy would be *atheists* who happen to say things like “there is no God” or “religion isn’t a good thing” or “The God of the Old Testament is arguably the most unpleasant character in all fiction: jealous and proud of it; a petty, unjust, unforgiving control-freak; a vindictive, bloodthirsty ethnic cleanser; a misogynistic, homophobic, racist, infanticidal, genocidal, filicidal, pestilential, megalomaniacal, sadomasochistic, capriciously malevolent bully.”
Defamation and fraud can ordinarily be adjudicated by figuring out whether the representations the defendant made was true. It’s hard to imagine how the most common kinds of religious (or, more to the realpolitik point, anti-religious) claims can be similarly evaluated on grounds that the populace can accept.
It seems to me a major reason for the Free Exercise Clause is to head off the inevitable carnage that ensues whenever a governmental authority elects to declare what is and is not religiously true. It’s inevitably a disaster.
All that said, I should agree that there are obvious limits to legitimate Free Exercise expression; I’d have no problem treating the kinds of stuff that are both (1) fairly clearly testable statements about the objective world (e.g., “Send me money and your cancer will be cured”) and (2) severely injurious to the public (see id.) as criminal and/or tortious. Parents allowing their kids to die because they prefer faith healing to medicine is an obvious case in point.
Free Exercise will inevitably collide with secular law, whether it’s African animist sects asserting the right to sacrifice chickens in violation of animal cruelty laws or Catholics insisting that kids ought to be able to drink wine during Communion. When we’re talking about the very central elements of religious expression, I’m not sure that a religiously pluralistic society can avoid keeping its hands largely off.
I don’t see this as a problem with the free exercise clause in and of itself, but with the overly broad interpretation of it generated by the sociocultural and historical immunity to public criticism that religion has enjoyed for far too long.
All rights are logically and morally limited where they infringe on the rights of others: Just as free speech doesn’t protect slander, false advertising, and fraud, free exercise of religion ought not protect religious con artists – but it does, because religion is incorrectly treated as an overriding right rather than a right to be balanced with other rights. Allowing the right to freedom of religion to trump all other rights and freedoms is not required by the free exercise clause, and neither sound reasoning nor sound jurisprudence supports such interpretations – but the hands-off, no criticism, “free pass” status of religion (or at least majority religion) encourages unsound reasoning and outright stupid jurisprudence. But thankfully, as Dennett notes, this is beginning to change: Here’s hoping it’s a trend with legs.
Two nicely contrasting replies!
I suspect Rieux is largely right. It would be nice to be able to apply ordinary fraud laws to religions, but I suspect it’s just not possible, for the reasons Rieux indicates. We’re probably stuck with a double standard for what constitutes fraud – one for religion, and another for the rest of the world.
Sigh.
It’s not so much a double-standard for what constitutes fraud as a double-standard for gullibility. Yes, some fraud is based on fairly elaborate deceptions that victims might not have been able to detect even if they’d put a greater-than-average effort into investigating the claims: For example, there were few ways Enron’s investors could reasonably be expected to have discovered the company’s elaborate finance and accounting shell games. But the vast majority of fraud – on every scale from the massive, barely-legal Ponzi scheme of Amway to the casual street con of a three-card monty game – succeeds because the victims exhibit some combination of gullibility and greed: Victims might easily have avoided becoming victims if they’d only engaged in some critical thinking, asked some tough questions, or done even minimal fact-checking of the fraudulent claims at stake.
While the victims of fraud deserve sympathy in either case, and while moral blame properly falls on those who deliberately deceive others for gain rather than on those deceived, in the latter sorts of frauds – the frauds where the victims really ought to have known better – those defrauded are also responsible to a degree. The responsibility of the victims is not the same kind of responsibility – they have not done something wrong, per se (although sometimes the best-designed frauds lure the victims into thinking they are doing something wrong, which discourages them from going to the authorities when they realize they’ve been suckered) – but they have done something foolish. People are and ought to be judged negatively for being foolish, for being gullible enough to swallow transparently too-good-to-be-true lies, or for allowing greed to overcome ordinary and prudent caution. In other words, people have not just moral responsibilities, but also epistemic responsibilities.
I think this grants a certain logical foundation for the different standard for ordinary fraud as opposed to religious fraud. People ought to bear a certain amount of epistemic responsibility for their financial (and other) decisions, but the different kinds of fraud interact differently with that epistemic responsibility:
If you believed a pack of lies you couldn’t reasonably have been expected to know were lies and had no reasonable way of finding out – and especially if you did check some facts but that investigation didn’t reveal the lies – you’ve lived up to your epistemic responsibilities. Like anyone who suffers from the immoral actions of others, you deserve the full sympathy and even support of your fellows because you have been victimized through no fault of your own – and the scoundrels who victimized you deserve to be prosecuted to the full extent of the law.
In contrast, if you believed a pack of lies when you really ought to have known the claims in question were implausible, and if you could reasonably and easily have done some fact-checking and didn’t, you have failed your epistemic responsibilities. You still deserve sympathy and support as someone who’s been victimized by from the immoral actions of others, but you have little basis to complain if that sympathy is rather minimal, or comes tinged with judgment for your foolishness. Still, you didn’t *choose* to give your money away, and the sort of scoundrels who deliberately and knowingly prey on fools like you with their lies and scams are wholly morally blameworthy for their own actions, and still deserve to be prosecuted to the full extent of the law.
But religious fraud seems different in a few key ways. If you’re so frakking gullible that you buy into claims that are manifestly ridiculous on the face of them – especially when the overwhelming majority of those claims CANNOT POSSIBLY BE CHECKED BY ANY MEANS, and you know that and still willfully choose to believe them anyway – then you’re on your own, chump. You’ve so failed in your epistemic responsibilities that the only way anyone with better sense can still coherently treat you as adult human being and moral agent is to conclude that you’ve just willingly chosen to give your money away – which, in point of fact, you have. After all, in ordinary financial fraud there is usually some product or financial return that is promised to the person defrauded: But in most religious “fraud,” little or nothing is promised but non-tangible spiritual rewards – or if tangible rewards are promised/suggested in this world (Hello, prosperity gospel!), those rewards are contingent not on your actual financial investment but on the purely intangible, non-measurable “strength” of your faith or unknowable “God’s plan for your life.” When the victim willingly gives money away with no concrete, tangible return or reward or good being promised in return, I’m not entirely sure it’s reasonable to call the financial transactions “fraud” anymore.
On the other side of the fraud, regular fraudsters make false claims of fact for the primary purpose of acquiring other people’s money or property: Proving that their claims were false and proving that they must have known the claims were false is generally not that difficult. In contrast, it’s not only impossible to verify or falsify many of the claims that religious fraudsters make, it’s almost as impossible to determine whether they are knowingly lying: It’s quite possible – often very plausible – that the fraudsters believe their own pack of lies. From the perspective of both legal and moral responsibility, that makes religious fraud more than a little difficult to pin on people (no matter how obviously guilty of it they may be).
Actually, I’ve often wondered why we can’t sue preachers or priests for telling people things that are empirically false.
I don’t mean telling people things that are unproven, or unprovable (like whether there is a “god,” however you define that). Faith is different from a lie, so long as it’s being openly promoted as faith and not as science. Faith is belief in something when you know the evidence doesn’t necessarily bear it out
Rather, I mean things like Ratzinger’s claim that condoms don’t work. That’s provably false. It’s false medical advice. You could sue your doctor for that. Why can’t a Catholic sue her priest for peddling such nonsense?
And both Christian and Islamic religious leaders are guilty of peddling the lie that abusive husbands will stop hitting if their wives are just sweet and submissive enough. This, again, is empirically false. Probably if a psychologist gave such advice, she would be liable. Why not an imam/pastor/priest?
ESPECIALLY since religious advisors in the US have confidentiality privileges similar to those of doctors?
Most of the time legally privileged relationships (doctors, lawyers) carry legal responsibilities as well. Why not the priest/flock relationship? If they don’t want the legal responsibilities, why not take away the legal privileges? It’s very asymmetrical as it stands now.
On a different note, I don’t the free exercise clause actually goes too far, OB. I think the problem is that American courts focus too much on the free exercise clause and not enough on the establishment clause of the same amendment. (The “Congress shall establish no religion” clause). Giving religious groups special rights can verge on establishment, in my opinion, so if the clauses were balanced against each other then we would have saner policies.
To clarify, I’m suggesting that it may actually be a worthwhile goal in pluralistic societies to allow litigation as a check against faith masquerading as science. If a clergyman says, “No one has shown evidence that prayer works, but I believe it, and I think you should too,” I think that must be tolerated in a pluralistic society.
But if a clergyman says, “Prayer works, it’s been proven, you might as well stop the medical care now because God will do the work”…well, that’s a different matter. I do think people can be made to see this difference, including religious people.
Jenavir wrote:
But if a clergyman says, “Prayer works, it’s been proven, you might as well stop the medical care now because God will do the work”…well, that’s a different matter.
This is exactly right. And that’s just what some religious leaders do say. If religion were treated as other businesses are, there would be any number of statutes that would apply, not just fraud. For instance, Christian Science cures could be forced to go through the FDA. In the US, however, not only don’t we examine the cures, we subsidize many of them through Medicare. The privileges that religions enjoy here are almost beyond imagining.
Rieux:
I think your post illustrates one of the key principles behind frameworks like the Bill of Rights. The restrictions placed on government by the Constitution are not designed to produce optimal policy, optimal policy is extremely unlikely given humans are making the policy decisions.
The function of the Constitution is to stop government policy from failing to extremely, by limiting government’s powers to interfere in the lives of its citizens.
The downside is that the religious get a legal free pass when they shouldn’t. The upside is that a future government can’t make atheism illegal, or outlaw the teaching of evolution, and these are far more likely than stopping fraudulent preachers.
G: “It’s quite possible – often very plausible – that the fraudsters believe their own pack of lies. From the perspective of both legal and moral responsibility, that makes religious fraud more than a little difficult to pin on people (no matter how obviously guilty of it they may be).”
Interestingly, if you follow OB’s link in her threadstarter, you come to the Dennett article. At the side of that there is a link to Pat Robertson’s account of the cause of the recent earthquake in Haiti: it was brought on by voodoo.
That is yet another untestable hypothesis, but no doubt gives Robertson peace of mind, and probably does nothing to harm his own cash flow. As every snake oil salesman knows, the best position to take is one at the centre of a controversy, and bad publicity is better than no publicity.
http://newsweek.washingtonpost.com/onfaith/undergod/2010/01/haiti_the_devil_and_pat_roberton.html
While I’m sympathetic to the idea that preachers shouldn’t have legal leeway to lie about empirical facts, I think James K is spot on about the Constitutional issue. Aside from that broad objection, I think the idea doesn’t work on the lying front or on the empirical facts front.
On the lying side, preachers are presumed (however falsely in however many cases) to actually believe the nonsense they’re spouting. Speaking a falsehood you sincerely believe to be true is not the same as lying. But some people – doctors and lawyers and pharmacists, for just a few examples – are still held to be potentially liable for their mistakes, even when they sincerely believe in the truth and efficacy of whatever advice they give you. Why? The key difference is that a doctor or lawyer or pharmacist acting in her professional capacity is that all are trained and examined and licensed in their areas of expertise: If such a professional does genuinely believe a falsehood and give bad professional advice on that basis, she is still responsible because, as a trained and licensed professional, she is obligated to know better – hence all the training and testing and licensing.
In contrast, good samaritan laws specifically protect non-professionals doing their best in an emergency situation from litigation, precisely because they are not obligated to know better. More generally, you or I could not be sued for handing out false medical advice to people because we aren’t professionals. (Well, I’m not a medical professional. Some of you may be for all I know.) That is, we could not be sued for false advice unless we charged for it. Once people take money for their medical advice (or legal advice, or dispensing medicinal treatments), they are legally liable because they are acting as professionals (and doing so without appropriate license, no less, which is in itself a crime if they falsely represent themselves).
In contrast, while there are divinity schools and such, there is no possible universal standard of training, licensing, or testing for religious professionals (although more theocratic nations may institute one by fiat). Indeed, anyone can be a preacher (or other form of religious leader) as long as he or she can find a gullible flock to fleece – er, I mean, a congregation to provide donations to support his or her ministry.
And what would the content of religious professional training and testing be if anyone were to try to establish it? Distinctively religious ideas do not by any reasonable definition constitute a unified body of knowledge (in contrast to medicine, law, and pharmacy): There are no specific facts and procedures religious professionals could be expected to know and be tested on, and nothing with respect to which they are obligated to know better. Moreover, any opinions religious professionals express about subjects that *are* matters of fact in some field or other are of course merely their uninformed opinions – since they are not in fact professionals in any field with established matters of fact. If people choose to believe a whack-a-loon preacher’s medical advice instead of the entire medical profession’s, that’s their own foolish choice.
That said, I can’t go to bed without an aside on the matter of what can and cannot be proved. First, let’s keep in mind that “proof” is a poor word to choose outside of math and formal logic; I suspect that what Jenavir really meant was “justification.” Moving on: While there is no unified, justifiable set of religious claims anyone sensible would want to call a body of knowledge, I would argue that a great many specific claims made by religious believers – perhaps the overwhelming majority of them – can in fact be shown to be false under any reasonable standards of evidence. Religious professionals don’t have to be pronouncing matters of scientific fact to be spouting demonstrable falsehoods. For just one set of examples, no god with the particular properties attributed to him by the overwhelming majority of self- or other-proclaimed religious professionals could be responsible for creating life in general and human life in specific as it actually exists. Just because religious believers engage in frenzied goalpost-shifting and equivocating and vagueness-generating whenever presented with evidence against clear, specific supernatural claims doesn’t mean the claims aren’t falsifiable or even already falsified: It just means that believers are more committed to their faith beliefs than to any standards of evidence and reasoning – that is, they are more committed to their cherished falsehoods than to the only reliable means of ever establishing the truth of a claim. Generally speaking, I think it unwise to give the faithful a free pass on the complete shiftiness of the actual content of their beliefs by saying that religious beliefs are generally impossible to prove or disprove, because believers ALWAYS shift from the broad, vague, impossible-to-pin-down-enough-to-confirm-or-deny claims about their gods right back to the same old specific and demonstrably false claims the second your back is turned.
Question regarding policy / legalism about deliberate or gullible lies being told in and to the public in the USA.
Specifically, “Holocaust Denial”.
I’m given to understand, that no matter how vile their lies, holocaust deniers are allowed their “free speech” in the USA (Please correct me if I’m wrong)
Now, in the past, I’ve worked with people who had tattooed ID codes on the insides of their wrists.
So I know what my reaction to these frauds is – but what is the legal position?
Because the religious fraud being discussed here seems to be a very closely analagous case.
I’m an American and a lawyer. Yes, Holocaust deniers have the unfettered right of free speech (even the right to repeat easily-disproven lies) unless the specific content of what they say or write amounts to (a) libel, slander, or defamation, (b) incitement to crime or public disorder (act masquerading as speech), or (c) harassment, intimidation, extortion (another type of speech that is really act masquerading as speech).
Except on certain American university campuses where P.C. speech codes are in effect, or inside many workplaces where what the boss says goes, individual Americans or groups or classes of Americans do not have a legal right “not to be offended.” Fortunately.
On balance, I’d rather keep the Free Exercise clause, so long as the Establishment Clause stays with it. Has the Free Exercise clause allowed religion to develop a sort of immunity from public criticism here in the U.S.? Yes, unfortunately, even though that arguably was not the framers’ primary or direct intention. The Free Exercise clause has also created a fertile, hothouse environment in which religious sects could grow, split, and proliferate, with none of them receiving specific government support, but all of them unfortunately receiving indirect government “subsidies” in the form of tax exemptions from property taxes and income taxes. I’d say that if the U.S.A. had never had its First Amendment, the U.S.A. would not be the statistical outlier that it is — with high levels of vague, general religiosity — compared to other “developed” countries.
Sorry, I meant to address the “fraud” issue. Here in the U.S.A., a demonstrable lie by a member of clergy, or by an overtly religious layperson, is not illegal or actionable in court merely because it is a lie (unless the lie amounts to libel or slander). But if the lie is told recklessly or intentionally for the purpose of inducing someone else to rely on it and to make an investment or part with money, it could be actionable as civil or criminal fraud. Right now in southwestern Indiana, there is a criminal prosecution against a small group of preachers who committed fraud against devout, religiously-motivated investors. The investors were inclined to believe the lies of the perpetrators because of the perps’ status as preachers, but the lies themselves did not have much, if any, religious content.
So far as I know, there have not been any high-profile criminal prosecutions or civil fraud lawsuits against pastors or preachers who obtained contributions from congregations by telling them the usual sort of religious stories, claptrap, etc. Because one of the elements to be proven is that the statements made were lies or misrepresentations, or had material information omitted from them (which would have been necessary to make the statements non-misleading). Another element to be proven, to establish fraud, is that the priest, preacher, or other speaker made the statement with a mental state that was at least reckless, or (better yet) intentional. In other words, that the speaker knew or should have known that the statement was false. When the statement in question is a claim that God will cure disease or will reward generous donors, how does one prove this element to a jury composed of regular or at least occasional churchgoers, none of whom wants to be the first to admit, in the jury room, that the Emperor has no clothes?
When prominent preachers have been “taken down” by the legal system here in the U.S.A., it’s been because they were shown to have violated other laws (tax evasion, investment fraud) or because their operations violated the rules imposed on non-profit, tax-exempt organizations that can receive tax-deductible contributions (Such organizations cannot pay unreasonably high compensation to directors, officers, or employees, and their assets and earnings cannot be used to financially benefit private individuals).
“act masquerading as speech”
Thank you, I hadn’t encountered that phrase before and it’s very useful.
Jeff, thanks for the useful information; can you give a bit more? Is there a d for the exceptions to free speech right to deny the Holocaust – for systematic deliberate falsification of evidence? Does that consititute any kind of fraud?
I ask because David Irving did just that in his books, but no one would have known that if he hadn’t sued Deborah Lipstadt for libel and if Penguins hadn’t fought the case and if Penguin hadn’t paid Richard Evans and his graduate assistants to check Irving’s footnotes – which took a huge amount of time and work, going into the archives and finding all the things Irving had cited.
That seems like a kind of fraud…yet I don’t know of any laws against it. Maybe it’s just the kind of thing that there’s a tacit agreement to let publishers and/or universities deal with rather than the law.
Penguin, not Penguins. No penguins encountered David Irving in a court of law. They’re all too busy demonsrating Family Values.
Thanks for that wonderful expert contribution, Jeff D. I’m glad to see that I got the basics of legal liability right, since I am no more a lawyer than I am a doctor or pharmacist.
(But I could play one on TV, if anyone would like to pay me for such a role.)
I understand the shiftiness you’re pointing out, G., but I would caution against making a blanket statement that “believers ALWAYS” do that. I’ve known quite a few who stay firmly in the realm of the unprovable and unfalsifiable. And on the opposite side, I’ve also known quite a few willing to grasp the nettle and say “well, I don’t care if the evidence disproves my specific claims!”
Religious spokespeople often engage in the kind of dishonesty you describe, I certainly don’t deny that. I would just be careful about tarring “believers” as a blanket category with that accusation of dishonesty.
Jeff, thanks for the explanation. I have no quarrel with the law as you describe it. It reaffirms my opinion that American secularism is great in theory, it just needs to be actually enforced more rigorously. For instance, when you talk about the “known or should have known” element, I think that could be enforced (at least in some cases) within our current laws if people were willing to do so.
Well, yeah, blanket claims are always dicey. But can you get the people who always stay in the realm of vague supernatural claims to admit that their claims are so non-specific that they are actually meaningless? If they won’t, then they must have claims that actually do specify something, yet they can never specify what that something actually is… so again, no good reason to give ’em a free pass. And in any case, I didn’t quite intend it as a blanket accusation of dishonesty: People who are flailing desperately to cling to unsupportable beliefs to which they have strong emotional attachments don’t necessarily engage in all that shiftiness deliberately. But I’ll grant that my rhetoric was easily interpreted that way – too much prior experience with theologians (*shudder*), who I cannot help but judge to be willfully dishonest hacks even when they evidently believe the nonsense they spout (or don’t “believe” it but clearly endorse, a la Armstrong). Intellectual dishonesty is a high crime rather than a misdemeanor in my book.
In contrast, the nettle-graspers who come right out and say “I don’t care if my religious beliefs are demonstrably false or directly contradict all sorts of other things I admittedly also believe” strike me as altogether better people than most theologians. They may be nuts, but at least they’re *honest* with themselves and others.
I suppose I’m not convinced that the vague claims are necessarily meaningless. If someone I know says, “I think there’s a benevolent ‘force’ of some kind in the universe that wants us to do good to each other,” that’s pretty vague, but meaningless? It seems like the belief has a clear meaning and practical effect: the “force” serves as a cheerleader in this person’s head, encouraging her to do what she sees as good. It has a psychological effect, which means it must have some meaning to her. At the same time this vague ‘force’ isn’t supposed to be omniscient, or omnipotent, or miracle-working…so it avoids a lot of the evidence issues that the Christian god runs into.
Hey! Just for the record, I’m a lawyer as well. I just didn’t want my initial comment to sound like a Memorandum of Law. (Totally unwarranted dig at Jeff and his well-prepared comments–sorry.)
And apropos of dirigible‘s enthusiasm for the phrase “act masquerading as speech,” please be aware that that is a very narrow category in the law. Attempts to penalize undesirable speech (such as, y’know, “There is no God”) are routinely buttressed by claims that said speech is really an “act.” (E.g., the act of “attacking God” or what-have-you.) Without strict limits on its application, that concept threatens to swallow the guarantee of free speech whole.
Again, it seems to me very much in atheists’ interests–or those of any other despised minority–to favor very strong protections on free expression, free exercise, and several other rights guaranteed in the Bill Thereof.
Well with words like ‘litigant’ and ‘adjudicated’ and ‘tortious’ you kind of tipped your hand anyway, Rieux.
:- )
Lawyerly input on this is good; the more the better.
Oh, *I* sure thought so, too–but then in traipsed Jeff D, with his whole “I’m a lawyer” and “if the lie is told recklessly or intentionally for the purpose of inducing someone else to rely on it and to make an investment or part with money” schtick, and my lawyerly ego just couldn’t take it. Rrrrrr!
I’m no biologist, but I blame all this on being a primate.
I just figure you’re all more or less Alan Shore, and that takes care of it.
Heehee.
Rieux,
Thanks for emphasizing that the “act masquerading as speech” exception — which can allow for punishment of speech as harassment, incitement to violence, intimidation, or “hate crime” — is indeed a narrow exception, at least in U.S. law. One classic but overused example is O. W. Holmes’s hypothetical about a person shouting “Fire!” in a crowded theater.
Ophelia, about David Irving, and others who may concoct and present deliberate lies in books that are claimed and marketed as non-fiction, as fact . . .
I am no expert in literary/publishing law, but based on my past experience and research, in the U.S. the writing and publishing of falsehoods is generally not subject to censorship (let alone prior restraint or some sort of civil or criminal action for “fraud”) under U.S. law. The required elements for “fraud” include at least one victim who reasonably relied on the misrepresentation or falsehood and who suffered damage. If someone buys a book by a Holocaust denier or a Young-Earth Creationist, reads it, and then discovers later that the book was replete with demonstrable lies, what could the buyer/reader recover if she sues? In many U.S. states, the recoverable damages might be limited to the original cost of the book — a rescission remedy. Under the “American Rule,” attorney fees and costs in litigation are borne by the individual parties and aren’t recoverable by winner against loser unless there is a statute or a contract that says otherwise. So much of the time (and unless some other provable monetary damage was proximately caused by reliance on the lie or misrepresentation, it is not economical for people who feel duped by lies or misinformation to sue the liar.
Suppose that the buyer/reader of a Holocaust-denial book is a survivor of the Sobibor or Treblinka camp. Does he or she have a better cause of action against the writer of the book? Under U.S. law, not necessarily. In at least a bare majority of U.S. states, there is no cause of action for negligent or reckless (or perhaps even intentional) infliction of “emotional distress” without any accompanying physical injury.
There are exceptions of course. If a historian or scientist obtains a research grant and uses the grant money to fund his writing of a book that denies the Holocaust, or to engage in research with deliberately fraudulent results, the person or agency that provided the grant may have a cause of action for civil fraud (perhaps even a criminal fraud prosecution) under specific laws or under the contractual terms of the grant application or award.
Finally, although publishers and their lawyers put provisions in ALL of their publishing contracts that require the author to warrant the accuracy of any factual claims made in a non-fiction book, and to indemnify (hold harmless) the publisher with respect to lawsuits made by readers or others (especially claims of libel, copyright infringement, or plagiarism), publishers of how-to, diet, and exercise books are especially concerned about lawsuits. A person who buys and reads a book about skydiving, or making furniture with power tools, or some exotic diet or martial art, might be expected to do more than merely read the book, and if death or injury were to be suffered by a reader who tried to put the book’s instructions into practice, both author and publisher could face lawsuits (essentially product liability lawsuits) involving significant money damages.
Thanks Jeff.
I guess none of that comes as a surprise, really. The place where I get stuck is outside the law, I suppose, in some foggy area between rights and morality and convention. I boggle at people who claim that there is a free speech right to falsify evidence in print – but it’s never quite clear whether they mean it’s legal (or not illegal) or it’s a ‘right’ in a more normative sense. I suspect they mean the first but not the second, but I can never quite get them to admit that. I’m not sure why.
Because people like to smuggle moral exculpation into legal exculpation, so they can get away with more, of course.
The principle of letting Holocaust-deniers publish, I suppose, is that it can best be fought with more speech…which ultimately is something I admire.
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