Would it be legal to publish a copy of the Constitution with an extra article that is not part of the real constitution, with no indication that it was added, i.e. intending to mislead readers?
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2With no further details about the content of the extra article, why wouldn't the answer always be "it depends"?– Peter MortensenSep 2, 2022 at 20:54
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@PeterMortensen I wouldn't have been surprised if the answer was "no, it's not legal to try to convince people that the Constitution says something it doesn't."– SomeoneSep 2, 2022 at 20:55
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3 Answers
Yes
The US constitution is in the public domain. Anyone may publish a version of it, including an altered version. No US law forbidding publication of an altered version would itself be constitutional -- the First Amendment would prevent such a law.
However, if an altered version were sold under such conditions that a customer might reasonably believe it to be an unaltered version, that might be false advertising, or perhaps fraud, because the seller would be deceiving the customer as to what the product is.
answered Sep 1, 2022 at 22:21
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I doubt that could be prosecuted as fraud without violating the First Amendment. That is no different from prosecuting someone for selling a book that contains intentional falsehoods that are not clearly identified as such on the grounds that it deceives or defrauds the customer who paid for truths and got lies, which is clearly unconstitutional. See cases like Winter v. Putnam for the proposition that you cannot prosecute fraud or product liability when the crux are about the false/erroneous content of speech that is sold. Sep 4, 2022 at 4:46
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7@DavidSchwartz If I sell something as A Copy of the Constitution of the United States, and it is not in fact a copy of the US constitution, I'm claiming to sell one thing and I'm actually selling something else. Sep 4, 2022 at 12:00
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1@wizzwizz4 exact is certainly a matter of degree: "and secure the Blessings of Liberty" (modern s) and "and secure the Bleſsings of Liberty" (original long s) are slightly different transcriptions yet no deception. Sep 4, 2022 at 18:03
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@wizzwizz4 See Winter v. Putnam (and many other cases). When the supposed "fraud" relates to the falsity or inaccuracy of the speech, the First Amendment prevents the government from punishing it whether by civil liability or otherwise. This is no different from suing Fox News because you don't agree that what they're broadcasting is news. Even if you are objectively right, the First Amendment is an absolute bar to civil liability for paying for speech you later find you don't like, even if for objective and provable reasons. Sep 4, 2022 at 21:30
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@wizzwizz4 Feel free to cite a case to the contrary, but you won't find one. This First Amendment exception, were it recognized by courts, would permit the government to punish any false speech that people paid for. That would include things like false political claims at paid dinners (such as contradicting the CDC's authoritative medical claim that masks don't help the public stop the spread of COVID). It's simply not the law in the United States nor could it be if the First Amendment is to have any teeth. Sep 4, 2022 at 21:32
Merely publishing it as provided wouldn't be actionable or a crime, but if it caused economic or legal harm to someone, or was used by someone knowing of its alteration in a legal matter, this would probably be actionable by someone in a manner that would depend upon the way that the issue presented itself.
answered Sep 1, 2022 at 22:20
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2"...would probably be actionable by someone in a manner that would depend upon the way that the issue presented itself." Well that certainly pins down exactly what could happen. Sep 2, 2022 at 19:11
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9@GlenYates Vague questions get vague answers and the law doesn't work in generalities. I could probably imagine at least a dozen ways with materially different legal analyses for how it could play out in half an hour. Sep 2, 2022 at 19:18
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This Has Happened Before—The Government has Even Done it
According to a law review article by Jol A. Silversmith, “Well into the second half of the nineteenth century, some textbooks, state compilations of law, and even on one occasion a compilation of law published under the auspices of Congress erroneously included” a proposed-but-never-ratified “titles of nobility amendment.”
It is not Illegal to Misquote the Constitution, in and of Itself
To this day, there are some people who mistakenly believe that the TONA was ratified, or that various other amendments never properly were. There’s no law against being wrong.
It’s also not against any law, for example, to give a bogus quote of the Constitution as a joke. (It’s right there in the First Amendment: “Congress shall make no law regarding an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or the press, or making me work on my birthday.”)
What You Do with Your Fake Constitution Might be a Crime
For example, if you claimed to be selling authentic copies of the Constitution, and you knowingly sold your customers something else, that could be fraud. Or, if you printed up a fake copy of the Constitution to show clients and deceive them into paying you to file a frivolous lawsuit, you could get in serious trouble for that too.
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If I am not mistaken, the TONA did eventually get ratified, more than 200 years after it was proposed. Sep 4, 2022 at 17:54
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1@DavidSiegel You might be thinking of thee 27th Amendment. That regulates Congressional pay raises.– DavislorSep 4, 2022 at 18:21