0

My understanding is that "truth is an absolute defense" against a "defamation" charge, in the U.S. (Although you could be charged with something else such as "publication of private facts.")

If you shouted "fire" in a crowded theater, and there really was a fire, would "truth be an absolute defense"? If so, under what heading would this doctrine fall, since we are not dealing with "defamation"?

On the other hand, "truth is NOT an absolute defense" against "defamation" in the United Kingdom. (At least as I learned UK law in the 1990s.) Are there any other instances in the UK where "truth is not an absolute defense"?

16
  • I think the issue is that one of the elements of defamation is that the statement be false. So therefore this applies to any other crime or tort which has a similar element. May 13, 2021 at 20:40
  • 1
    @RockApe: The issue in the question is that "truth is an absolute defense" in the US, e.g. against defamation, but not in the UK. Therefore, it is unwise to "trivialize" the "absoluteness" of the defense, because it does not apply in all times and places (even in the English-speaking world).
    – Libra
    May 13, 2021 at 21:06
  • 1
    @RonBeyer: I was trying to explore the commonalities (or differences as the case may be) between "truth is an absolute defense" in the case of defamation, and in the case of "yelling fire." One (common) concept applied to two (vastly) different locales.
    – Libra
    May 13, 2021 at 21:22
  • 1
    Truth is an absolute defense to almost any fraud charge (assuming it is not just "technically true" but implies something false).
    – ohwilleke
    May 13, 2021 at 21:27
  • 1
    @Ron Beyer "yelling fire in a crowded theater" is a case where false speech is (or may be) criminal, but true speech is not, indeed is praiseworthy. In a defamation case false speech is a tort, true speech is not. May 13, 2021 at 21:40

2 Answers 2

3

The original phrase "falsely shouting fire in a theatre and causing a panic" came from the opnion by Justice Holmes in Schenck v. United States, 249 U.S. 47 (1919) where it was a metaphor for speech that might validly be prohibited under he First Amendment. It served to introduce the famous "Clear and present danger" test. The issue in that case was whether distributing fliers urging people not to submit to the draft could be the reason for a conviction under the Espionage Act, or whether such action was protected by the First Amendment. Holmes held it was not protected. The case was not about any actual shout of "fire".

The Court has generally held that true speech may not be prohibited, and for this reason some legal scholars argue that the "private facts" tort is unconstitutional in the US. But in many cases the Court has held that false speech is also protected, so truth is not the primary criterion.

In Brandenberg vs Ohio 395 U.S. 444 (1969) the "Clear and present danger" test was replaced by a rule that only speech "directed to inciting or producing imminent lawless action and is likely to incite or produce such action" may be prohibited under the first amendment, and this is now the test for any crime of "incitement". Under this test Schenck would hav gone the other way. This test says nothing about the truth of the speech, and a perfectly true statement may nevertheless be incitement if it seeks to arouse lawless action, and is likely to succeed.

Near vs Minnesota held that bare truth must be a defense in any prior restraint case (unlike truth published "with good motives and for justifiable ends" which the saturate at issue in Near allowed as a defense), but went on to greatly restrict any prior restraint, even if the content was false.

Defamation is really the primary situation in which falsity is a vital element of the offense, and so truth is a defense.

Falsity is an element of perjury also, and so truth would be an absolute defense there as well. Falsity is also an element of the common-law tort of fraud, and of most statutory versions of fraud, but in some of those a true but misleading statement can still be held fraudulent, so truth is not an absolute defense.

I cannot think of another such legal situation. Updatew:

A comment asked:

What if I inform all of Joe's neighbours that Joe had been arrested for murder - when I fully know that he was completely exonerated and the real murderer is in jail right now. It's literally the truth, but completely misleading.

In that case the law takes you to have made by implication a statement that Joe is currently under suspicion for murder, or perhaps a statement that Joe is actually guilty of murder. As those statements are false, and apparently knowingly false, they can be the basis of a defamation action. There is a lot of caselaw on defamation by implication, but in general one is taken to have made statements that are clearly implied by the statements one did in fact make. I don't think this is very different in UK and US law, but I am not sure about the UK. Anyway truth is not a defense here because the implied statement is not true.

1
  • I have since learned the case is based upon a falsehood. Shouting fire in a theater usually results in almost everybody staying put even when there is a fire.
    – Joshua
    Jan 24 at 3:44
2

The truth defense regarding shouting "fire" is baked into the statute criminalizing the conduct: see ORC 2917.31 for Ohio and analogs in other jurisdictions

No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:

(1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;

Likewise perjury statutes, false statement / report statutes, criminal fraud statutes etc. where the definition of the crime includes the fact of a statement being false (indeed, knowingly false). It is remotely conceivable that somewhere there is a statute against "inducing panic" which prohibits making true statements that result in public alarm, where truth of statement is taken to be an absolute defense, but I've never seen a version of the law that doesn't include falseness as a definitional element.

3
  • Yeah, ask the Boston Police if it's legal to broadcast dire terror warnings about a "Hoax Device", as they did in the Great Mooninite Invasion of 2007. May 13, 2021 at 20:11
  • And there are probably variations where the "shouter" actually saw smoke, and "reasonably" believed there to be fire, except that there was no fire.
    – Libra
    May 13, 2021 at 20:12
  • Inciting to riot is an offense even if all statements made are true. May 13, 2021 at 21:36

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .