Second Supplement To Objection To Motion To Dismiss

United States District Court for the Eastern District of Arkansas, Northern Division

Don Hamrick, pro se (Private Attorney General) (Non-State Actor) 5860 Wilburn Road Wilburn, AR 72179 PLAINTIFF v.

) ) ) )18 U.S.C. § 1964(c) ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988 ) )

) United Nations, et al c/o Ban Ki-Moon, Secretary General 405 E 42nd Street New York, NY 10017 DEFENDANTS

) Jury Trial Demanded )Damages Sought: )$14.4 million from United States Defendants )$14.4 million from United Nations )

Civil RICO Act Complaint No. 1:06-cv-0044

SECOND SUPPLEMENT TO PLAINTIFF’S OBJECTION TO MOTION TO DISMISS

Those Damnable Lying Judges and Government Attorneys!

2

Judge Ellen Segal Huvelle’s Memorandum Opinion, dated October 9, 2002, in dismissing with my Petition for Writ of Mandamus for the National Open Carry Handgun/Small Arms and Light Weapons endorsement on my Merchant Mariner’s Document stated bold faced lies: The asserted legal bases for the relief sought by petitioner are the Second, Ninth, and Thirteenth Amendments of the Constitution, which, he claims, guarantee the right to carry firearms openly and without a license in interstate and intrastate travel. Petitioner argues that the Second Amendment’s “right of the people to keep and bear arms” renders invalid any federal or state law restricting what he calls “National Open Carry Handgun” and requires the President and the Coast Guard to take the actions he has demanded. Moreover, according to petitioner, federal and state gun control laws create a form of “legislated slavery” in violation of the Thirteenth Amendment. Taking the latter claim first, no court has ever so much as suggested that the Thirteenth Amendment confers any right to bear arms, and it is entirely fanciful to suggest that its prohibition of involuntary servitude somehow unambiguously requires the overturning of a whole variety of gun control legislation.1 As for the Second Amendment, while it is true that the precise meaning of this provision continues to be in dispute in both judicial and academic circles, c.f. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the very existence and intensity of that controversy make mandamus relief a decidedly inappropriate vehicle for fulfilling petitioner’s demands.2 Mandamus is reserved for circumstances in which the claimant’s entitlement to relief and the defendant’s obligation to provide such relief are unambiguous and undebatable. The Second Amendment simply offers no such clarity.3 Moreover, the established law on this subject hardly supports petitioner’s cause.4 In United States v. Miller, 307 U.S. 174, 178 (1939), the Supreme Court found that “absent some reasonable relationship to the preservation or efficiency of a well regulated militia,”5 the possession of a weapon (a short-barreled shotgun) could be proscribed without running afoul of the Second Amendment. Miller remains the most authoritative modern pronouncement on the amendment’s meaning and its conclusion that the right to bear arms is limited by the needs of an organized militia6 has subsequently been echoed7 by the Supreme Court and

1

Remember the notorious Dred Scot v. Sanford case? How about Lincoln’s Em ancipation Proclamation? Or the Fourteenth Amendment? 2

Not anymore!

3

The hell it doesn’t! This is Judge Ellen’s Segal Huvelle’s political ideology seeping through in the guise of the rule of law! 4

She m eans the liberal left wing anti-Second Amendment political ideology!

5

I have presented ample law review articles disputing Judge Huvelle’s politically biased assertion.

6

This is a downright contemptible bold faced lie.

7

Echoed is hereby defined as conspired among other left-wing liberal judges waging war on the Second Amendment. Translating into racketeering activity under the RICO Act. 3

followed in this and other circuits. See United States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police v. United States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that “a federal criminal gun control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia”). Under this interpretation, petitioner’s claims appear largely without merit.8 In sum, given the breadth of petitioner’s demands and the narrowness of the constitutional provision that he relies on to justify those demands – more specifically, the lack of apparent connection between his right to keep and bear an unlicenced firearm and the needs of any organized militia – petitioner can establish neither that he has a clear right to relief nor that any of the named respondents has a clear duty to act. However the Second Amendment may ultimately come to be interpreted, the current understanding 9 of that text certainly provides no obvious basis either for the wholesale negation of federal and state gun laws or for the open carry endorsement that petitioner seeks.10

Adam Winkler in SCRUTINIZING

THE

SECOND AMENDMENT , 105 Mich. L. Rev. 683 (February,

2007), states, “It is clear that the individual-rights reading of the Second Amendment is gaining headway in American legal thought.” He documents that statement with Footnote 7 by stating: “That the individual right view prevailed definitively is evidenced by the fact that no Second Amendment scholar, no matter how inimical to gun rights, makes the “collective right’ claim any more.”11

8

Conversely under the individual rights interpretation my claim does have merits and does cross the threshold of mandamus relief. 9

The law review articles appended herein indicts Judge Huvelle’s remark on contemptuous of the truth. A lie! 10

Wanna bet?!

11

See Randy E. Barnett, WAS THE RIGHT TO KEEP AND BEAR ARM S CONDITIONED ON SERVICE IN AN ORGANIZED MILITIA ?, 83 Tex. L. Rev. 237, 237 (2004) (book review); see also Glenn Harlan Reynolds, GUN BY GUN : AFTER ALMOST 100 YEARS OF PRETENDING THE RIGHT TO BEAR ARM S DIDN ’T MEAN MUCH , JUDGES AND SCHOLARS ARE CHANGING THEIR MINDS , Legal Aff., May/June 2002, at 19. 4

Citing Cohens v. Virginia, 6 Wheat. 264 1821 Mr. Chief Justice Marshall delivered the opinion of the Court, in part, stating: It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.12 Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one. Therefore, in light of an apparent unanimous academia on the Second Amendment as being an individual right irrespective of the militia my case now as constitutional merit the court now (if it was ever disputed) has subject matter jurisdiction and the support of academia to resolve the dispute in the judicial arena once and for all under the mandate stipulated under Cohens v. Virginia noted above.

THE DOMINOS DOCTRINE Since I have reasonably disproved Judge Huvelle’s fraudulent assertions that the Second Amendment is not an individual right with the information in my Objection to Motion to Dismiss, my Supplement to Objection to Motion to Dimiss, and my Second Supplement to Objection to Motion to Dismiss (herein noted with appended law review articles) and because Judge Huvelle maintain such assertions as preclusive to mandamus relief then it stands to reason that since I have destroyed Judge Huvelle’s assertions with the proper application of truth that my case does, in fact and law, does have merit for mandamus relief, and because of the 4-years of obstructive activities of the bench and bar this judicial history is hereby construed as racketeering activity under the RICO Act to allege racketeering an unlawful and an unconstitutional protection scheme over the Second Amendment, as if to tip one Domino to topple a whole line of judicial reasoning on the Second Amendment and the RICO Act.

12

Plaintiff emphasis. 5

6

SAF VICTORY IN NEW ORLEANS, JUDGE GRANTS CONTEMPT MOTION PRNewswire/USNewswire February 13, 2007 BELLEVUE, Wash., Feb. 13 /PRNewswire-USNewswire/ — A United States District Judge in New Orleans has granted a motion to hold Mayor C. Ray Nagin and Police Superintendent Warren Riley in contempt for failure to provide initial disclosures and answers to discovery in a lawsuit filed by the Second Amendment Foundation. Judge Carl J. Barbier issued a blistering rebuke to New Orleans’ defense counsel for conduct that is “wholly unprofessional” and warned that it “shall not be condoned.” Judge Barbier ordered defense counsel to reimburse SAF’s attorney $1,365. SAF is joined in the lawsuit by the National Rifle Association. In his ruling, Judge Barbier noted, “Defense counsel has caused time and money to be wasted by Plaintiffs’ counsel and further admits that he has ‘no good reason’ to explain his behavior.” “Throughout the past 17 months,” said SAF founder Alan M. Gottlieb, “our attorneys have acted professionally and they have been stonewalled or ignored by the city and especially its defense attorney. This seems to be the only thing that gets their attention, and it appears that Judge Barbier’s patience has grown as thin as our own.” “We gave New Orleans every opportunity to act like adults and deal with this lawsuit in a professional manner,” Gottlieb said, “and they’ve acted as if this case didn’t exist. Judge Barbier’s ruling is a wake-up call. “They seem to forget that we went to court over a serious civil rights violation,” Gottlieb continued. “In the days following Hurricane Katrina, New Orleans dispatched police officers and National Guard troopers to confiscate firearms. In many cases, citizens were disarmed at gunpoint, without warrant and without probable cause. Nagin and Riley, and every other official in New Orleans who was part of this outrage, need to understand that the Constitution may not be suspended in New Orleans or anywhere else by a natural disaster, or on somebody’s whim. “This is the first step toward forcing New Orleans to return seized firearms to their rightful owners, and in our effort to find out who issued that illegal order, and hold them responsible,” Gottlieb stated. “We will not rest until this case is resolved.” The Second Amendm ent Foundation (http://www.saf.org/) is the nation’s oldest and largest tax-exempt education, research, publishing and legal action group focusing on the Constitutional right and heritage to privately own and possess firearms. Founded in 1974, The Foundation has grown to more than 600,000 members and supporters and conducts many programs designed to better inform the public about the consequences of gun control. Contact: Alan Gottlieb, Second Amendment Foundation (425) 454-7012

What about my case? What about sanctions for extortion of filing fees by the courts, withholding evidence by the Justice Department, perjury, and general stonewalling by the bench and bar these past 4 years? Oh! Yeah! I just an unrepresented civil plaintiff! 7

ANNOTATED PROOF OF FACTS ELEMENTS OF CASE

FACTS

Plaintiff’s Second Amendment right to openly keep and bear arms in intrastate and interstate travel.

State and Federal gun control laws nullified the Second Amendment in reguard to right to travel.

Discovery needed.

Seamen’s Rights under 2nd, 4th 5th, 9th, 10th, 13th, 14th Amendments

Coast Guard denied 2nd Amendment right of Plaintiff

USCG Letter dated April 19, 2002.

Right to travel while armed under Second Amendment.

Plaintiff’s Occupation as Seaman requires national and international travel .

Merchant Mariner’s Document.

Relationship between Second Amendment and Genocide Convention

Compendium of State and Federal Gun Control Laws Violate Second Amendment and Genocide Convention.

Self Evident Discovery needed.

Judge Ellen Segal Huvelle’s bias in Memorandum, elements of perjury by Defense Counsel

Court records

Self Evident but discovery needed.

Judge Reggie B. Walton’s appointment to preside over plaintiff’s case.

Random Selection process violated.

Judge Reynolds’ Recusal Order but discovery needed.

Justice Department withholding vital evidence in Plaintiff’s RICO Act case in Washington, DC.

Asst U.S. Attorney Dennis Barghaan did not notify the Court of Justice Dept Memorandum Opinion on Second Amendment

Justice Department Memorandum Opinion on Second Amendment dated August 24, 2004 but discovery needed.

U.S. Government obstructing justice in plaintiff’s case.

Dirty tricks by bench and bar.

Discovery needed.

U.S.C.G. Oath of Office

Oath of Office violated by Coast Guard Officer

USCG Letter dated April 19, 2002. Discovery needed.

U.S. Coast Guard policy on harassment.

Coast Guard retaliation with criminal investigation an DOT Bar Notices for law suit.

Discovery needed.

U.S. Coast Guard relationship with U.N. and IMO

Coast Guard failure to defend constitutional rights of U.S. seafarers from U.N./IMO attacks on Second Amendment.

Self Evident. Discovery needed.

8

EVIDENCE

ANNOTATED PROOF OF FACTS ELEMENTS OF CASE U.S. Coast Guard, IMO and Piracy

FACTS

EVIDENCE

U.S. Coast Guard and IMO negligence in safety of U.S. Seafarers’ safety and security from pirates by ignoring Second Amendment rights of U.S. Seafarers

Discovery needed.

Restructured U.S. Government under extraordinary circumstances as precondition for mandamus relief

Self Evident Discovery needed.

DHS has General Superintendence over the U.S. Merchant Marine & Personnel

46 U.S.C. § 2103

Role of Merchant Marine in Homeland Security under the Dept. of Homeland Security

DHS neglected Second Amendment rights Merchant Marine Personnel

Self Evident Discovery needed.

United Nations’ Breach of Treaty

U.N. Global Gun Control Agenda violates UN Charter and many other treaties.

Self Evident Discovery needed.

Impact of U.N. Declaration that Non-State Actors have no right to self-defense under Second Amendment

Said Declaration violates UN Charter and several human rights treaties.

Discovery needed.

Role of Federal Judiciary in defending Second Amendment from domestic and foreign attacks.

U.S. Federal Judiciary sabotaging Second Amendment.

Discovery needed.

Second Amendment as jus cogens and erga omnes under international human rights law and Genocide Convention and the impact on American law and jurisprudence

Current level of State and Federal gun control laws violate international human rights laws and the Genocide Convention

Discovery needed.

Restoration of full Second Amendment rights though Social Normals Marketing an Legislation under the Law of Social Norms

State and Federal Government used abused legislative process to change social norms against Second Amendment

Discovery needed.

Dept. Homeland Security

9

ANNOTATED PROOF OF FACTS ELEMENTS OF CASE

FACTS

EVIDENCE

The Question of ultimate sovereignty in regard to the Second Amendment

U.S. Government and United Nations attempting to take ultimate sovereignty from The People of the U.S.

Discovery needed.

The role of lying Congress intended for the Federal Judicial Process under 18 U.S.C. § 1001(b)

Federal judges and U.S. Asst Attorney’s lied in support of motion to dismiss an otherwise case having constitutional merits.

Discovery needed.

The adversarial system of justice is not the best system available/

Judicial reform is needed.

Discovery needed.

The People are held hostage to the corrupt two-party political system perpetuating the corrupt political process, and the corrupt judicial, legislative and executive branches.

Self evident in the daily televised news.

Just watch TV.

Tenth Amendment balance of power mandates a balance between Popular Constitutionalism and Judicial Review (Supremacy) and agency interpretation of the Constitution

Judges violating Article III and the Tenth Amendment by creating immunities for institutional protectionism of the United States at the expense to the People’s constitutional rights.

Discovery needed.

10

You Left-Wing Liberal Federal Judges Lost the War on the Second Amendment! Please excuse my rhetoric above. I have expended excessive amounts of time in my daily activities these past 4 years to search and study law review articles on every subject under the sun to counter every argument by the bench and bar to get this far: finally finding a unanimous academia on the interpretation of the Second Amendment. This discovery now compels the present Court to deny the Government’s Motion to Dismiss because my Second Amendment case is now prime for a trip to the U.S. Supreme Court as a case of first impression with a published opinion from the U.S. District Court for the Eastern District of Arkansas, Northern Division. My case has the potential to be the Second Amendment trial of the century because I will address the Second Amendment not only at the local, State, and Federal levels but also at the international level.

APPENDED LAW REVIEW ARTICLES M Adam Winkler, SCRUTINIZING THE SECOND AMENDMENT , 105 Mich. L. Rev. 683 (February, 2007) M Cheryl Boudreau and Mathew D. McCubbins, THE BATTLE FOR TRUTH : THEORY AND EXPERIMENTS REGARDING COMPETITION AND THE ADVERSARIAL SYSTEM , University of San Diego School of Law Legal Studies Research Paper Series, Research Paper No. 07-63, September 2006

M Monroe H. Freedman, IN PRAISE OF OVERZEALOUS REPRESENTATION - LYING TO JUDGES , DECEIVING THIRD PARTIES , AND OTHER ETHICAL CONDUCT , Hofstra University Law SchooL l, e g a l S t u d i e s Research Paper Series, Research Paper No. 06-9

M Stuart P. Green, LYING , MISLEADING , AND FALSELY DENYING : HOW MORAL CONCEPTS INFORM THE LAW PERJURY , FRAUD , AND FALSE STATEMENTS , Hastings Law Review, Vol. 53, Nov. 2001, pp. 157-212 OF

APPENDED BOOK REVIEW M William R. Tonso, ‘UNSPEAK ’ AND THE GUN PROHIBITIONISTS , February 10, 2007

APPENDED EDITORIAL M Mukul Sharma, Difference Between Deception and Lying, Editorial, INDIA TIMES , The Economic Times, Friday, February 9, 2007

11

12

PLAINTIFF FINDS 18 U.S.C. § 1001(b) EXEMPTION TO FRAUD AND FALSE STATEMENTS IS UNCONSTITUTIONAL I have found that the exemption to fraud and false statements in a judicial proceeding, or that party’s counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding as provided in 18 U.S.C. § 1001(b) nullifies the statute on perjury found in 18 U.S.C. § 1621 et seq. The exemption on lying in a judicial proceeding is offensive to the proper administration of justice and transforms the rule of law into the rule of fiction. It is the classic example of a nation living a lie as in gun control advocates believing that a gun free world will herald in a safe and secure world. By this evidence it can be implied that Congress is complicit in a fraud against our guarantee of a Republican form of government limited by the constraints of the Constitution when evidence of election rigging through excessively high standards for third party candidates in presidential elections, the gag law on political debate (60 days?) before a presidential election, and other disenfranchisement measures, and other measures too numerous to list here presents a prima facie case that the U.S. Government is operating outside the limits of the U.S. Constitution. The U.S. Government has created far too many self-protections (i.e. immunities for suits, exemption from fraud and lying in 18 U.S.C. § 1001(b)) for offenses against the constitutional rights of the private citizen that the U.S. Government has now evolved in a despotic and tyrannical government that the Founders of this nation warned us about. The U.S. Government has become a fortress against our First Amendment right to petition the Government for redress of grievances. This situation invites a future risk of internal armed conflict under the law of nations when push comes to shove between the Government and The People over constitutional guarantees of our rights, freedoms, and liberties as well as our constitutional duties and responsibilities to our rights, freedoms, and liberties. My case, if allowed to proceed to trial can be the vehicle to restore a constitutional Government operating within the limits of the Constitution, at least in part by restore the balance of power under the Tenth Amendment by reclaiming Second Amendment rights stolen long ago by fraud, deception, and outright lying.

13

Respectfully submitted.

Don Hamrick 5860 W ilburn Road Wilburn, Arkansas 72179 Email: ki5ss@ yahoo.com Email: 4donhamrick@ gmail.com

CERTIFICATE OF SERVICE On February 12, 2007, I, Don Hamrick, hereby certify that I delivered a copy of the above with the noted appended items by Priority Mail to the Tim Griffin, U.S. Attorney in Little Rock, Arkansas

Don Hamrick, Petitioner, Pro Se 5860 Wilburn Road Wilburn, Arkansas 72179 (501) 728-4235 [email protected]

14

SCRUTINIZING THE SECOND AMENDMENT Adam Winkler* 105 Mich. L. Rev. 683 (February, 2007) * Acting Professor, UCLA School of Law. Thanks to Iman Anabtawi, Jack Beard, Saul Cornell, Robert Goldstein, Mark Greenberg, Lisa Griffin, Pam Karlan, Gia Lee, Russell Robinson, Gary Rowe, Eugene Volokh, and Noah Zatz. Craig Countryman and Julie Axelrod provided excellent research assistance. Please address comments to [email protected]. Introduction The lively debate over the Second Amendment has focused on whether it protects a right of individuals to possess arms or a collective right of states to maintain militias free from federal interference.1 The last Supreme Court [*685] decision to address the issue was way back in 1939, when in United States v. Miller 2 the Court indicated that the Second Amendment guaranteed a collective right of states rather than an individual right.3 Much recent legal scholarship has critiqued the collective-rights view and argued that the amendment was intended to protect an individual “right to possess firearms for personal self-defense and the defense of others.”4 Over the past few years, the individual-rights view has won over at least one federal circuit court5 and has become the official position of the Bush Administration’s Department of Justice.6

1.

For the individual-rights view, see Stephen P. Halbrook, T HA T E VE RY M A N B E A RM ED : T HE E V O LU TIO N (1984); Joyce Lee Malcolm, T O K EEP A N D B EAR A RM S : T H E O RIG IN S O F AN A NG LO -A M ERICAN R IGH T (1994); Akhil Reed Amar, T H E B ILL OF R IG H TS AND TH E F O URTEENTH A M E ND M EN T , 101 Yale L.J. 1193, 1261-62, 1264-66 (1992); Sanford Levinson, T H E E M BARRASSING S EC O N D A M E ND M EN T , 99 Yale L.J. 637 (1989); Nelson Lund, T H E S EC O N D A M E ND M EN T , P O LITICAL L IBERTY , AND TH E R IG H T TO S ELF -P RESERVATIO N , 39 Ala. L. Rev. 103 (1987); Glenn Harlan Reynolds, A C RITICAL G UIDE TO TH E S EC O N D A M E ND M EN T , 62 Tenn. L. Rev. 461 (1995); and William Van Alstyne, T H E S EC O N D A M ENDM ENT AND TH E P ERSO NAL R IG H T TO B EAR A RM S , 43 Duke L.J. 1236 (1994). O F A C O N STITU TIO N AL R IG H T

For the collective-rights view, of which there are several variants, see H. Richard Uviller & William G. Merkel, T H E M ILITIA AND TH E R IG H T TO A RM S , O R , H O W TH E S EC O N D A M ENDMENT F ELL S ILENT (2002); Carl T. Bogus, T H E H ID DEN H ISTO RY O F TH E S EC O N D A M E ND M EN T , 31 U.C. Davis L. Rev. 309 (1998); Saul Cornell, A N EW P ARADIG M FO R TH E S EC O N D A M E ND M EN T , 22 Law & Hist. Rev. 161 (2004); Andrew D. Herz, G U N C RAZY : C O NS TITUTIO NAL F ALSE C O N S C IO U S NES S AN D D ERELICTIO N O F D IALO G IC R ESPONSIBILITY , 75 B.U.L. Rev. 57, 58 (1995); and David Thom as Konig, T H E S EC O N D A M E ND M EN T : A M ISSING T RAN SATLAN TIC C O NTEXT FO R TH E H ISTO RICAL M EANING OF “T H E R IG H T O F TH E P EO PLE TO K EEP AN D B EAR A RM S ,” 22 Law & Hist. Rev. 119, 154-57 (2004). 2.

307 U.S. 174 (1939).

3.

United States v. Cole, 276 F. Supp. 2d 146, 149 (D.D.C. 2003) (“The Miller decision was the last time the Supreme Court considered the meaning of the Second Amendment, and for over six decades since, the lower federal courts have uniformly interpreted the decision as holding that the Amendment affords “a collective, rather than individual, right’ associated with the maintenance of a regulated militia.” (quoting Love v. Pepersack, 47 F.3d 120, 124 (4th Cir.), cert. denied, 516 U.S. 813, 116 (1995))). 4.

Calvin Massey, E LITES , I DENTITY P O LITIC S , G U N S , AND TH E M ANU FACTU RE OF L EG AL R IGH TS , 73 Fordham L. Rev. 573, 587 (2004). 5.

United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001).

6.

B RIEF FO R TH E U N ITED S TATES IN O PPO SITIO N app. at 1, Emerson v. United States, 536 U.S. 907 (2002) (No. 01-8780), available at http://www.usdoj.gov/osg/briefs/2001/0responses/2001-8780.resp.pdf [hereinafter Ashcroft 1

SCRUTINIZING

THE

SECOND AMENDM ENT

It is clear that the individual-rights reading of the Second Amendment is gaining headway in American legal thought.7 Mostly overlooked in the literature, however, is the important question of what standard of review would apply to laws burdening the right to bear arms if the Court were to adopt the individual-rights approach.8 No right is absolute, and the extent to which legislation can permissibly burden a right is largely determined by the doctrinal rules, tests, and other devices the Court adopts to “implement” the right. 9 One prominent way of implementing constitutional mandates is a standard of review, such as strict scrutiny or rational basis, which is used to judge the constitutionality of laws burdening the right. Yet in the Second Amendment literature, there has been little [*686] sustained attention to what standard would be used under the individual-rights reading. The lack of attention to Second Amendment standards is possibly due to the “assumption ... that an individual rights approach would mean strict scrutiny ... when courts appraise the constitutionality of gun control measures.”10 In this Article, I challenge that assumption and consider the arguments for a contrary conclusion, that the Second Amendment individual right to bear arms is appropriately governed by a deferential, reasonableness review under which nearly all gun control laws would survive judicial scrutiny. The discussion here is informed by the example of state constitutional law, where the individual right to bear arms is already well established. Forty-two states have constitutional provisions guaranteeing an individual right to bear arms11 and, tellingly, the courts of every state to consider the question apply a deferential “reasonable regulation” standard in arms rights cases.12 No state’s courts apply strict scrutiny or

Memorandum]. 7.

See Randy E. Barnett, W AS TH E R IG H T TO K EEP AN D B EAR A RMS C O N D ITIO N ED O N S ERVIC E IN AN O RG ANIZED M ILITIA ?, 83 Tex. L. Rev. 237, 237 (2004) (book review) (“That the individual right view prevailed definitively is evidenced by the fact that no Second Am endm ent scholar, no m atter how inim ical to gun rights, makes the “collective right’ claim any m ore.”); Glenn Harlan Reynolds, G UN BY G U N : A FTER A LMO ST 100 Y EARS O F P RETENDING THE R IG H T TO B EAR A RMS D ID N ’ T M EAN M U C H , J U D G ES AN D S CH OLARS A RE C H ANG ING T H EIR M IN DS , Legal Aff., May/June 2002, at 19. 8.

See Stuart Banner, T H E S EC O N D A M E ND M EN T , S O F AR , 117 Harv. L. Rev. 898, 907-08 (2004) (book review) (“A final area that could use m ore attention is the plumbing. What exactly will the doctrine look like? What kinds of regulation will be unconstitutional? W hich guns? Which people? Which situations? This is lawyerly detail, well below the level of most of the debate thus far, but it is detail that may be important one day.”). 9.

See generally Richard H. Fallon, Jr., I M P LEM E NTIN G T H E C O N S T IT UTIO N , 111 Harv. L. Rev. 54 (1997) (analyzing the tools courts use to translate rights into practical doctrine). 10.

Erwin Chemerinsky, P UTTING TH E G U N C O NTRO L D EBATE IN S O CIAL P ERSPECTIVE , 73 Fordham L. Rev. 477, 484 (2004). 11.

Robert Dowlut, F ED ERAL AN D S TATE C O NS TITUTIO NAL G UARANTEES TO A RM S , 15 U. Dayton L. Rev. 59, 59 n.2 (1989). Since Dowlut wrote, Wisconsin has added an individual rights provision to its constitution. Wis. Const. art. I, § 25. Currently, six states have no right-to-bear-arms provisions: California, Iowa, Maryland, Minnesota, New Jersey, and New York. Dowlut, supra, at 59 n.2. 12.

See, e.g., Hoskins v. State, 449 So. 2d 1269, 1270 (Ala. Crim. App. 1984) (“The constitutional guarantee of the right of a citizen to bear arms is subject to reasonable regulation by the state under its police power, and ... the classification created under the statute is warranted and is clearly a reasonable exercise of the State’s police power.”); City of Tucson v. Rineer, 971 P.2d 207, 213 (Ariz. Ct. App. 1998) (“If it can be shown that an ordinance is directed 2

SCRUTINIZING

THE

SECOND AMENDM ENT

any other type of heightened [*687] review to gun laws.13 Under the standard uniformly applied by the states, any law that is a “reasonable regulation” of the arms right is constitutionally permissible. Since World War II, state courts have authored hundreds of opinions using this test to determine the constitutionality of

at a legitimate legislative purpose and that the means by which the city seeks to achieve that purpose are reasonable, then the ordinance is a proper exercise of the city’s police power.”); In re Wolstenholme, 1992 Del. Super. LEXIS 341 at 18 (Del. Super. Ct. Aug. 20, 1992) (“Article I, § 7, of the Constitution of the State of Delaware does not invalidate the Court’s authority to impose reasonable restrictions on a license to carry a concealed deadly weapon.”); Carson v. State, 247 S.E.2d 68, 72 (Ga. 1978) (“The question in each [right-to-bear-arms] case [is] “whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts to a deprivation of the constitutional right.’” (quoting Strickland v. State, 72 S.E. 260, 263 (Ga. 1911))); People v. Marin, 795 N.E.2d 953, 958 (Ill. App. Ct. 2003) (“We analyze the constitutionality of the legislation at issue pursuant to the rational basis test. Under the rational basis test, a statute is upheld where it “bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.’” (quoting People v. Wright, 740 N.E.2d 755, 767 (Ill. 2000))); Baker v. State, 747 N.E.2d 633, 638 (Ind. Ct. App. 2001) (“[The law] is subject to a rational basis review, and we will not invalidate it unless it draws distinctions that simply make no sense.”); Posey v. Commonwealth, 185 S.W.3d 170, 181 (Ky. 2006) (“W e defer to the reasonable interpretation of our legislature, finding that the constitution permits some reasonable regulation of the people’s right to bear arms, but only to the extent that such regulation is enacted to ensure the liberties of all persons by maintaining the proper and responsible exercise of the general right ... .”); People v. Swint, 572 N.W.2d 666, 676 (Mich. Ct. App. 1997) (“[The] right to bear arm s ... is not absolute and is subject to ... reasonable limitations ... .”); James v. State, 731 So. 2d 1135, 1137 (Miss. 1999) (“In limiting the possession of firearms by those persons who have been shown to present a threat to public safety, peace and order, the state is reasonably exercising its power to protect in the interest of the public.”); State v. White, 253 S.W. 724, 727 (Mo. 1923) (“[The] right to bear arms may be taken away or limited by reasonable restrictions.”); State v. Comeau, 448 N.W.2d 595, 600 (Neb. 1989) (“We conclude that the statutes ... are reasonable regulations of the right to keep and bear arms ... .”); State v. Johnson, 610 S.E.2d 739, 746 (N.C. Ct. App. 2005) (“Our case law has “consistently pointed out that the right of individuals to bear arms is not absolute, but is subject to regulation.’ The only requirement is that the regulation must be reasonable and be related to the achievement of preserving public peace and safety.” (quoting State v. Dawson, 159 S.E.2d 1, 9 (N.C. 1968))); Mosby v. Devine, 851 A.2d 1031, 1044 (R.I. 2004) (“Numerous jurisdictions have recognized that the constitutional right to keep and bear arms under a state constitution is not absolute and that reasonable regulatory control by the Legislature to promote the safety and welfare of its citizens uniformly has been upheld.”); Masters v. State, 653 S.W.2d 944, 946 (Tex. Ct. App. 1983) (“As our State Constitution grants and guarantees a direct right to the individual, our State Constitution limits that right by implicitly mandating the Legislature to enact reasonable regulations concerning the keeping and bearing of such arms in order that the Legislature prevent disorder in our society.”); State v. Duranleau, 260 A.2d 383, 386 (Vt. 1969) (upholding a law when “the statutory purpose is reasonable”); Parham v. Commonwealth, 1996 Va. App. LEXIS 758, at 5 (Va. Ct. App. Dec. 3, 1996) (“The legislature must use means that are reasonably related to the stated purpose.”); Rohrbaugh v. State, 607 S.E.2d 404, 414 (W. Va. 2004) (“The restrictions contained therein are a proper exercise of the Legislature’s police power to protect the citizenry of this State and impose reasonable limitations on the right to keep and bear arms to achieve this end.”); State v. Hopkins, 2005 WL 2739081, at 3 (Wis. Ct. App. Oct. 25, 2005) (holding that the state constitution “also permits reasonable regulation of gun possession”); State v. McAdams, 714 P.2d 1236, 1238 (Wyo. 1986) (“We are cognizant of the fact that our concealed deadly weapons statute imposes some limitation on a person’s right to bear arms in defense of himself; but, when balanced against the object of the statute, we do not find the limitation unreasonable ... .”). 13.

See Mosby v. Devine, 851 A.2d 1031, 1044 (R.I. 2004) (“Even in jurisdictions that have declared the right to keep and bear arms to be a fundamental constitutional right, a strict scrutiny analysis has been rejected in favor of a reasonableness test ... .”); State v. Cole, 665 N.W.2d 328, 337 (Wis. 2003) (“If this court were to utilize a strict scrutiny standard, Wisconsin would be the only state to do so.”); see also State v. Comeau, 448 N.W.2d 595, 597 (Neb. 1989) (“Courts have uniformly upheld the police power of the state through its legislature to impose reasonable regulatory control over the state constitutional right to bear arms in order to promote the safety and welfare of its citizens.”). 3

SCRUTINIZING

THE

SECOND AMENDM ENT

all sorts of gun control laws. All but a tiny fraction of these decisions uphold the challenged gun control laws as reasonable measures to protect public safety. If the federal courts follow suit and apply the reasonable regulation standard, nearly all gun control laws will survive judicial review - despite the construction of the Second Amendment to include an individual right. As a result, any eventual triumph of the individual-rights reading of the Second Amendment is likely to be more symbolic than substantive. Part I of this Article examines how the standard of review question has been addressed in the two most important legal developments supporting the individual-rights construction of the Second Amendment: United States v. Emerson, in which a federal circuit court formally read the amendment to protect an individual right;14 and (former) Attorney General John Ashcroft’s Memorandum to United States Attorneys, which adopted the individual-rights construction as the official position of the executive branch.15 While flirting with strict scrutiny, both balk at adopting a stringent standard that might potentially interfere with ordinary gun regulation. This Part also surveys the relatively thin scholarly literature on Second Amendment [*688] standards. Although some have suggested strict scrutiny, there has been no thorough analysis of whether that standard is appropriate for the arms right. Part II begins to fill this gap and considers the arguments in support of Second Amendment strict scrutiny. Some commentators have assumed that strict scrutiny would automatically apply because the right is textually grounded in the Bill of Rights. Others have claimed that strict scrutiny would necessarily apply if the right to bear arms is deemed a “fundamental” right. Neither argument is persuasive. Most provisions in the Bill of Rights do not trigger strict scrutiny, and the oft-repeated linkage between fundamental rights and strict scrutiny is more rhetoric than doctrinal reality. Moreover, a Second Amendment right to bear arms would not fit with the underlying theoretical arguments for heightened judicial review generally. Motivated by public safety, gun control is not inherently invidious such that a presumption of unconstitutionality is warranted. Part III examines the reasons for deferential reasonableness review of laws burdening the Second Amendment right to bear arms. The text, history, and structure of the Second Amendment all support the application of a deferential form of scrutiny. The text of the amendment recognizes that some regulation of firearms is “necessary,” and the history of the right to bear arms at both the federal and state levels makes clear that the Founding generation, and those subsequent, did not generally view gun control as contrary to the existence of an arms right. Moreover, strong structural reasons counsel in favor of relatively lenient judicial review: heightened scrutiny would present significant problems of federalism, separation of powers, and institutional competence for the courts. Part IV examines the reasonable regulation standard used in state constitutional law and considers what Second Amendment doctrine might look like under that test. Over the past sixty years, the state courts have used the reasonable regulation standard to uphold nearly all of the gun control laws that have been challenged on right-to-bear-arms grounds. Although not quite the same as the rational basis test widely used elsewhere in constitutional law, the reasonable regulation standard is equally deferential, and courts accept broad, overinclusive laws that would ordinarily be expected to fail any form of heightened scrutiny. The standard does have its limits; laws that are arbitrary or so restrictive as to “destroy” or “nullify” the right may be deemed unreasonable. Few gun control laws, however, rise to this level. Since World War II, only six published opinions in the forty-two states combined have invalidated gun control laws (or their application to particular individuals) under the state right-to-bear-arms guarantees.

14.

United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001).

15.

Ashcroft Memorandum, supra note 6. 4

SCRUTINIZING

THE

SECOND AMENDM ENT

Part V rounds out the discussion of Second Amendment standards of review by considering what the right-to-bear-arms doctrine might look like if the Supreme Court were to reject reasonableness review in favor of strict scrutiny or some other form of heightened review. Famously “fatal in fact,” strict scrutiny could conceivably call into question a range of gun control measures. A more plausible scenario, however, is that Second Amendment strict scrutiny - or intermediate scrutiny - would still end up being lenient in [*689] fact. Even under heightened scrutiny, most gun control laws could survive Second Amendment challenge. The Supreme Court may well adopt the individual-rights interpretation of the Second Amendment in the near future. Yet we are just as likely to see the Court applying the same deferential scrutiny that prevails at the state level - regardless of whether the Court calls it reasonable regulation, intermediate scrutiny, or even strict scrutiny. If that prediction is correct, then the reinterpretation of the Second Amendment to protect an individual right to bear arms will have only a marginal impact on the constitutionality of gun control.

I. Whose Standard Is This Anyway? A. Implementing Rights Even if the Supreme Court were to read the Second Amendment to protect an individual right to bear arms, important questions of implementation would remain. The tests that govern judicial review are key factors determining the constitutional protection afforded by a right and the boundaries of governmental power to legislate in that area.16 Standards of review, such as strict scrutiny and the rational basis test, are popular methods of implementing constitutional norms, but they are not the only devices available. Courts sometimes employ a definitional approach to implementation that uses categorical rules to determine the scope of rights. For example, in freedom of speech - where standards are usually applied - the courts also use some categorical rules, such as that which holds that obscenity is beyond the scope of the First Amendment and thus unprotected.17 A law that regulates obscenity as such is not subject to any typical balancing or weighing of the interests; it is constitutional because the speech is outside of the purview of the First Amendment. Any eventual Second Amendment right-to-bear-arms doctrine may include some definitional or categorical rules. Even assuming an individual right to bear arms, the Court could hold that some types of weapons are not “arms” covered by the amendment. Nuclear bombs, hand grenades, and anthrax-laced letters are all weapons of a sort, but it is inconceivable that the Court would hold that possession of such items is constitutionally guaranteed. Such weapons would be outside the scope of the Second Amendment, and thus a potential possessor could not make a constitutional claim against the government for denial of access to them. While categorical rules may have a role to play in Second Amendment jurisprudence, I wish to focus in this Article on standards of review. In state constitutional law, an area in which the individual right to bear arms is already firmly established, the courts by and large use standards of review to [*690] adjudicate the validity of gun control - or, I should say, they use a standard of review, the reasonable regulation test. Some state courts do occasionally use categorical rules, holding for example that felons are not included within the

16.

See Fallon, supra note 9, at 56-57.

17.

Roth v. United States, 354 U.S. 476, 485 (1957) (holding obscene speech to be beyond the scope of the First Amendment). 5

SCRUTINIZING

THE

SECOND AMENDM ENT

scope of the right.18 Yet even in these states, the usual practice is for courts to apply the reasonable regulation standard to most weapons laws.19 If the states are any indication, therefore, standards of review are likely to be a key feature of right-to-bear-arms cases.20 Moreover, the two most significant legal statements of the individual-rights construction of the Second Amendment - United States v. Emerson and the Ashcroft Memorandum - both employed the language of standards, hinting at the potential role that this type of implementing device may play. Although neither settled on a clear standard of review to apply, together these two discussions recommend close study of Second Amendment standards of review. B. Standards in Second Amendment Law and Literature In 2001, the Fifth Circuit issued a landmark decision that broke from at least eighty years of federal court precedent and construed the Second Amendment to protect an individual right to bear arms. United States v. Emerson contained forty-three pages of historical discussion to support the individual-rights reading,21 but then gave only passing attention to the second-order question of the applicable standard.22 Having found an individual right to bear arms, the court, as Stuart Banner has observed, “seemed to be at something of a loss as to exactly what to do next.”23 The court upheld the federal law challenged in that case, which banned individuals subject to a restraining order in domestic harassment cases from possessing firearms.24 Here is Emerson’s stumbling effort to articulate the appropriate standard: Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.25 [*691] For the student of constitutional law, this statement confuses more than it clarifies.26 On the one hand, the court invokes the highest form of judicial skepticism, the strict scrutiny standard, with its recognition of “narrowly tailored” exceptions to the right to bear arms.27 The strict scrutiny test traditionally requires that laws infringing upon certain core rights be justified by a “compelling” government interest that 18.

E.g., State v. Hirsch, 34 P.3d 1209, 1212 (Or. Ct. App. 2001).

19.

See State v. Hirsch, 114 P.3d 1104, 1119 n.25 (Or. 2005).

20.

Cf. Banner, supra note 8, at 906 (“The Second [Amendment] would no doubt be interpreted analogously, with some kind of test like the ones used for the First and the Fourteenth, in which courts assess the strength of the government’s interest in regulating, the extent to which the law at issue is tailored to that interest, and so on.”). 21.

United States v. Emerson, 270 F.3d 203, 218-60 (5th Cir. 2001).

22.

Id. at 260-64.

23.

Banner, supra note 8, at 908.

24.

See Emerson, 270 F.3d at 264.

25.

Id. at 261 (second and third emphasis added).

26.

See Katherine Hunt Federle, T H E S EC O N D A M ENDMENT R IG H TS O F C H IL D R E N , 89 Iowa L. Rev. 609, 650 (2004) (“The court fails to articulate the appropriate level of scrutiny for judicial review of the legislation.”). 27.

Emerson, 270 F.3d at 261. 6

SCRUTINIZING

THE

SECOND AMENDM ENT

is furthered by “narrowly tailored” means - i.e., means that are no more restrictive than necessary to achieve the government interest.28 On the other hand, Emerson also invokes a much lower level of judicial scrutiny when it refers to the Second Amendment permitting “reasonable” restrictions on the arms right.29 Traditionally, reasonableness review is a relatively deferential type of scrutiny under which most laws are upheld.30 In the wake of Emerson, the Department of Justice, under then-Attorney General John Ashcroft, voiced its support for the Fifth Circuit’s holding that the Second Amendment guaranteed an individual right,31 but only added to the confusion over the appropriate standard of review. In a memorandum to all United States Attorneys and a letter to the National Rifle Association, Ashcroft officially adopted the individual-rights reading as the position of Justice but invoked the inconsistent elements of both strict scrutiny and more deferential review: “Of course, the individual rights view of the Second Amendment does not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests, such as prohibiting firearms ownership by convicted felons ... .”32 Here we see the famous first prong of strict scrutiny review. In the Ashcroft Memorandum, however, the Attorney General goes on to state, “the existence of this individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse.”33 The Ashcroft Memorandum and letter thus repeat the confusion of Emerson, referring simultaneously to both heightened and deferential scrutiny. An interesting caveat in the Ashcroft Memorandum suggests the Justice Department may be leaning toward a relatively low level of judicial scrutiny. After setting forth the administration’s support for the individual-rights reading, the Ashcroft Memorandum stated that “the Department [of Justice] [*692] can and will continue to defend vigorously the constitutionality, under the Second Amendment, of all existing federal firearms laws.”34 In other words, in the Department’s view, every single federal law burdening the right to bear arms remains constitutional despite what one might have thought to be a rather radical revision of the Second Amendment meaning. The more things change, the more they stay the same. Like Emerson and the Ashcroft Memorandum, the abundant scholarly literature on the Second Amendment has largely focused on the core meaning of the amendment and given much less attention to the standard of review question. As Erwin Chemerinsky observes, the literature commonly assumes that an individual-rights reading of the Second Amendment would occasion judicial adoption of strict scrutiny.35 Roy Lucas contends that “strict scrutiny” should apply in order to “avoid leaps of illogic and unjust treatment

28.

Erwin Chemerinsky, C O NS TITUTIO NAL L AW : P RIN CIPLES

29.

Emerson, 270 F.3d at 261.

30.

Chemerinsky, supra note 28, at 415.

31.

Ashcroft M EM O RAN DU M , supra note 6.

AN D

32.

P OLICIES 416 (1997).

Letter from John Ashcroft, Attorney Gen. of the U.S., to James Jay Baker, Executive Dir., Nat’l Rifle Ass’n 2 n.1 (May 17, 2001), available at http://www.nraila.org/images/Ashcroft.pdf (emphasis added). 33.

Ashcroft M EM O RAN DU M , supra note 6 (emphasis added).

34.

Id. (emphasis added).

35.

See Chemerinsky, supra note 10, at 484. 7

SCRUTINIZING

THE

SECOND AMENDM ENT

of defendants for acts and omissions that are miles distant from criminal activity.”36 Brannon Denning and Glenn Reynolds suggest that recognizing an individual right to bear arms in the Second Amendment, as they believe is necessary, would probably mean that “government regulation of [firearms] must survive strict scrutiny.”37 Randy Barnett and Don Kates each write that the arms right is subject to “reasonable regulation,” but then seem to imply that they mean some form of heightened review by equating Second Amendment scrutiny with what is applied to speech restrictions under the First Amendment.38 Calvin Massey has written the most sustained discussion to date of potential Second Amendment standards, and he argues for what he calls “semi-strict scrutiny.”39 Not everyone supports strict scrutiny or some other form of heightened review. Chemerinsky questions the assumption of strict scrutiny and notes that some other test, such as rational basis review, could conceivably apply.40 A few other scholars, including Laurence Tribe and Akhil Amar, also suggest in passing that reasonable regulations on the right should survive scrutiny.41 But these scholars have not sought to analyze thoroughly the standards of review question; their points about standards were only suggestive. [*693] The discussion below aims to fill the gap in the literature and to offer a more complete analysis of the appropriateness of strict scrutiny. In addition, this Article offers a more detailed discussion of the state constitutional law alternative - the reasonable regulation test - and considers what that might mean for the Second Amendment.

II. S CRUTINIZING THE A RGUMENTS FOR S ECOND A MENDMENT S TRICT S CRUTINY What arguments could be made that strict scrutiny should apply to laws burdening the Second Amendment right to bear arms? This Part examines the arguments for Second Amendment strict scrutiny and concludes that they are not persuasive. A. The Bill of Rights Argument One argument in favor of strict scrutiny is that, as a textual provision in the original Bill of Rights, the individual right to bear arms necessarily warrants heightened review. Federal Circuit Judge Harold DeMoss, who was part of the Emerson majority, expressed this view in a recent dissenting opinion: If some other statute of Congress purported to take away or restrict (1) “the right of the people peaceably to assemble and to petition the government for redress of grievances” under the First Amendment, or (2) “the right of the people to be secure in their persons, houses, papers, and effects against

36.

Roy Lucas, F RO M P ATSO NE & M ILLER TO S ILVEIRA V . L O CK YER : T O K E EP A N D B E AR A RM S , 26 T. Jefferson L. Rev. 257, 329 (2004). 37.

Brannon P. Denning & Glenn H. Reynolds, T ELLIN G M ILLER ’ S T A LE : A R EP LY Law & Contem p. Probs., W inter 2002, at 120.

TO

D A VID Y A S S K Y ,

38.

See Barnett, supra note 7, at 271-72; Don B. Kates, Jr., T H E S EC O N D A M E ND M EN T : A D IALO G U E , L AW & Contemp. Probs., Winter 1986, at 145-46. 39.

See Calvin Massey, G U N S , E XTREM ISTS , AND TH E C O NSTITUTIO N , 57 Wash. & Lee L. Rev. 1095, 1133 (2000).

40.

Chemerinsky, supra note 10, at 484.

41.

See Laurence H. Tribe & Akhil Reed Amar, Op-Ed., Well-Regulated Militias, and More, N.Y. T IM ES , Oct. 28, 1999, at A31 (“The right to bear arms is certainly subject to reasonable regulation in the interest of public safety.”). 8

SCRUTINIZING

THE

SECOND AMENDM ENT

unreasonable searches and seizures” under the Fourth Amendment, or (3) the right of any person to be free from being “compelled in any criminal case to be a witness against himself” under the Fifth Amendment, or (4) the right of any person “to have the assistance of counsel for his defense” in any criminal case under the Sixth Amendment because, in each event, such person was “an unlawful user of or addicted to a controlled substance,” then surely this court would use the test of strict scrutiny to determine the validity of that statutory restriction.42 The first (and most startling) thing to notice about Judge DeMoss’s argument is that three of the four provisions of the Bill of Rights he cites are not governed by the strict scrutiny standard at all. Although the freedom of association implicit in the right of assembly does occasionally trigger strict scrutiny protection,43 the courts do not use strict scrutiny in Fourth Amendment search and seizure cases,44 Fifth Amendment right against [*694] self-incrimination cases,45 or Sixth Amendment right to counsel cases.46 In none of these doctrines do the courts employ a compelling interest analysis or anything resembling heightened review. Nevertheless, Judge DeMoss’s argument reflects a common belief that strict scrutiny necessarily applies to the right to bear arms because the Second Amendment is located in the Bill of Rights.47 This Second Amendment syllogism fails in its minor premise: the notion that all textually based rights in the Bill trigger strict scrutiny. This is simply incorrect as a matter of constitutional doctrine. Many, indeed most, of the Bill of Rights guarantees do not trigger strict scrutiny. Only a small number of those provisions are governed by the strict scrutiny standard: free speech, free exercise of religion, and freedom of association under the First Amendment, and substantive due process and the implicit equal protection guarantee of the Fifth Amendment. In other words, strict scrutiny is applied in cases arising from only two textual provisions of the Bill of Rights, the First and Fifth Amendments. (Strict scrutiny is also applied in cases arising from the Fourteenth Amendment, outside of the Bill.) Strict scrutiny is not applied in any doctrines arising out of the Third Amendment, the Fourth Amendment, the Sixth Amendment, the Seventh Amendment, the Eighth Amendment, the Ninth Amendment or the Tenth Amendment. From this, we might conclude that textual grounding in the Bill of Rights creates a presumption against strict scrutiny.

42.

United States v. Herrera, 313 F.3d 882, 889 (5th Cir. 2002) (DeMoss, J., dissenting).

43.

Roberts v. U.S. Jaycees, 468 U.S. 609, 623-24 (1984) (applying strict scrutiny to a freedom of association

claim). 44.

See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53, 663 (1995) (employing a reasonableness test and asserting that the Court has repeatedly declined to apply strict scrutiny in search and seizure cases). 45.

See, e.g., Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 189-90 (2004) (using categorical rules that require the privilege against self-incrimination to be respected whenever the testimony has a “reasonable danger of incrimination”). 46.

See, e.g., Michigan v. Jackson, 475 U.S. 625 (1986) (applying a categorical rule that any interrogation outside of the presence of counsel, after the defendant has asserted the right, is invalid). 47.

See, e.g., Donald Dowd, T H E R ELEVANCE O F TH E S EC O N D A M ENDM ENT TO G U N C O NTRO L L EG ISLATIO N , 58 Mont. L. Rev. 79, 111 (1997) (acknowledging this argument); Barnett, supra note 7, at 271-72; see also Roger I. Roots, T H E A PPRO ACH ING D EATH OF TH E C O LLECTIVE R IGH T T H EO RY OF TH E S EC O N D A M E ND M EN T , 39 Duq. L. Rev. 71, 81 n.51 (2000) (“[A] rational basis type of review seems antithetical to any right protected under the Bill of Rights.”). 9

SCRUTINIZING

THE

SECOND AMENDM ENT

Nevertheless, the reason for Judge DeMoss’s confusion is not hard to fathom. Constitutional lawyers have long been baptized by footnote four of United States v. Carolene Products, in which Justice Harlan Fiske Stone wrote that “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments.”48 Law students are taught that, under footnote four, heightened review applies to the individual rights provisions of the Bill of Rights. But courts do not and have never applied strict scrutiny consistently to all of these provisions. Footnote four was a proposal that, despite wide influence in constitutional theory, has never been accepted in practice by the Supreme Court. The Court has allowed most of the Bill’s provisions to be implemented [*695] by devices other than strict scrutiny and its presumption of unconstitutionality.49 Moreover, even the individual rights in the Bill that do trigger strict scrutiny only receive the protection of such review some of the time. The freedom of speech, for example, is not governed exclusively by strict scrutiny; in many cases, if not most, courts apply more deferential forms of review.50 Content-neutral regulations impinging on freedom of speech are not governed by strict scrutiny, but by United States v. O’Brien’s relatively deferential standard, which results in challenged legislation being upheld regularly. 51 Not even all content-based speech restrictions are subject to strict scrutiny. When the content is commercial speech, the courts apply the more deferential standard from Central Hudson Gas & Electric Corp. v. Public Service Commission.52 When the government regulates the content of speech, but is acting as an employer (rather than sovereign), the courts apply the relatively deferential standard from Pickering v. Board of Education.53 Strict scrutiny only applies to a subset of speech restrictions. The Supreme Court also applies strict scrutiny sparingly in free exercise of religion cases. The Warren Court began applying strict scrutiny in free exercise cases in 1963, with the decision in Sherbert v. Verner.54 Overturning Sherbert, the Rehnquist Court in Employment Division, Department of Human Resources v. Smith held that strict scrutiny was inappropriate for generally applicable laws that burdened religious practices.55 Such claims for exemptions make up the vast majority of free exercise claims,56 yet the 48.

304 U.S. 144, 153 n.4 (1938).

49.

Adam Winkler, F UNDAM ENTALLY W RO NG A BOUT (forthcoming 2007), available at http://ssrn.com/abstract=902673.

F UN DAM ENTAL

R IGH TS ,

C ONST .

C O M M EN T .

50.

See Ashutosh Bhagwat, T H E T EST T H AT A TE E VERYTH IN G : I NTERM EDIATE S C RU TIN Y IN F IRST A M ENDMENT J U RIS PRU D EN CE , U. Ill. L. Rev. (forthcoming 2007), available at http://papers.ssrn.com/abstract= 887566 (detailing the pervasiveness of intermediate scrutiny in freedom of speech cases). 51.

Michael C. Dorf, I NC IDENT AL B U RD EN S O N F UN DAM ENTAL R IGH TS , 109 Harv. L. Rev. 1175, 2000-04 (1996) (recognizing the substantial leeway created by the intermediate scrutiny used for content-neutral laws). 52.

447 U.S. 557 (1980).

53.

391 U.S. 563 (1968).

54.

374 U.S. 398, 406 (1963).

55.

494 U.S. 872, 885 (1990).

56.

See Adam Winkler, F ATAL IN T H E O RY AN D S TRIC T IN F AC T : A N E M PIRICAL A NALYS IS O F S TRICT S CRUTINY IN TH E F EDERAL C OURTS , 59 Vand. L. Rev. 793, 861 (2006) (finding that, between 1990 and 2003, the federal courts ruled 10

SCRUTINIZING

THE

SECOND AMENDM ENT

Constitution requires only rational basis review under Smith. Ironically, the courts in some exemption cases still apply strict scrutiny under two federal statutes, the Religious Freedom Restoration Act57 and the Religious Land Use and Institutionalized Persons Act.58 The irony is not that the standard survives, but that, even though it survives, few laws fail to satisfy its [*696] requirements. In a recent study, I found that the federal courts applying strict scrutiny upheld generally applicable laws against claims for religion-based exemptions in seventy-four percent of cases.59 Even where strict scrutiny applies, it can be deferential in practice. The Fifth Amendment’s Due Process Clause and implicit equal protection guarantee trigger strict scrutiny, but none of the several other individual rights guaranteed by that amendment receive the same protection. The right to property protected by the Takings Clause, for example, is governed by a diverse set of tests that include categorical rules (e.g., all permanent physical takings must be compensated),60 deferential scrutiny (the Penn Central test for regulatory takings),61 and a form of intermediate scrutiny (for excessive exactions cases). 62 One does not find strict scrutiny in the doctrines arising from the Fifth Amendment’s rights against self-incrimination, to indictment by grand jury, or against double jeopardy. Despite footnote four, strict scrutiny is quite rarely applied to laws burdening the textually guaranteed rights found in the Bill of Rights. Reasonableness review is used in one of the most important provisions of the Bill of Rights: the Fourth Amendment. 63 This provision, which is so central to the protection of privacy rights, does not require that invasive laws be strictly scrutinized but only that invasions be reasonable. Under Fourth Amendment reasonableness review, the Court balances the “intrusion on the individual’s Fourth Amendment interests against [the] promotion of legitimate governmental interests.”64 The Court has recently been explicit that this standard does not require the most important element of heightened review: the precise fit required by the narrow tailoring, or least restrictive means, analysis.65 Assuming that standards of review will have some role in shaping Second Amendment doctrine, one thing is clear: strict scrutiny is not automatically the applicable standard simply because the right is textually grounded in the Bill of Rights. The Supreme Court uses rational basis scrutiny, intermediate scrutiny, reasonableness review, and other tests far less demanding than strict scrutiny for individual rights found in the hallowed Bill.

on fifty-eight claims for exemptions compared to fifteen claims of intentional religious discrimination). 57.

42 U.S.C. § 2000bb-1 (2000).

58.

42 U.S.C. § 2000cc-1(a) (2000).

59.

Winkler, supra note 56, at 861.

60.

Lorretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982).

61.

See Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).

62.

See Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992).

63.

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).

64.

Delaware v. Prouse, 440 U.S. 648, 654 (1979).

65.

See Acton, 515 U.S. at 663. 11

SCRUTINIZING

THE

SECOND AMENDM ENT

B. The Fundamental Rights Argument A corollary argument to the Bill-of-Rights argument is that strict scrutiny would apply because the right to bear arms is - or would be under an [*697] individual-rights reading - a “fundamental” right.66 Under current Second Amendment doctrine, the right protected by the Second Amendment is not deemed “fundamental.”67 Yet one would imagine that holding would be reconsidered should the Supreme Court reinterpret the amendment to protect an individual right. Leaving to the side the question of whether the right to bear arms should be deemed a “fundamental” right, I wish to focus here on the standard of review side of the equation. Even assuming the right were, in some sense, fundamental, does strict scrutiny necessarily apply? While it is often said that fundamental rights trigger strict scrutiny, the answer is not so simple. As with the Bill-of-Rights argument, constitutional doctrine does not live up to the frequent refrain. It simply is not true that every right deemed “fundamental” triggers strict scrutiny.68 The Supreme Court has never identified precisely what determines whether a right is “fundamental” or not. There are three potential ways to define “fundamental rights.” The first definition relies on textual placement: all rights in the Bill of the Rights might be deemed fundamental. Yet, as already noted, not all of the rights found in the Bill of Rights are protected by strict scrutiny. A second definition of fundamental rights takes its cue from the incorporation doctrine, under which only those provisions of the Bill of Rights deemed “fundamental” apply to the states.69 Under this definition, most but not all of the rights in the Bill are fundamental; only the Second Amendment, the Third Amendment, the Fifth Amendment’s Grand Jury Clause, the Seventh Amendment’s right to trial by jury in civil cases, and the Eighth Amendment’s prohibition on excessive fines have not been incorporated.70 Assuming the Second Amendment right to bear arms would also be incorporated to apply against the states, the right would be in this sense fundamental. Nevertheless, as we have already seen, many of the individual rights in the Bill of Rights do not trigger strict scrutiny, including many that are incorporated (such as the Takings Clause, Fourth Amendment rights, and Sixth Amendment rights). Even among those incorporated rights [*698] that do prompt strict scrutiny, such as the freedom of speech and of religion, strict scrutiny is only occasionally applied.

66.

For examples of statements to the effect that the right to bear arms would require strict scrutiny because the right is a fundamental one, see Lucas, supra note 36, at 328-29 (noting without argument that strict scrutiny would apply to the Second Amendment right due to its fundamental nature), and Janice Baker, Comment, T H E N EXT S TEP IN S EC O N D A M ENDMENT A NALYSIS : I NC O RPO RATING TH E R IG H T TO B EAR A RM S INTO TH E F O URTEENTH A M E ND M EN T , 28 U. Dayton L. Rev. 35, 55 (2002) (observing without extended discussion that strict scrutiny “logically follows ... if the Supreme Court considers a right fundamental to the American scheme of justice”). See also Arnold v. City of Cleveland, 616 N.E.2d 163, 176 (Ohio 1993) (Hoffm an, J., dissenting) (arguing for strict scrutiny because the arms right is “fundamental” under the Ohio constitution). 67.

United States v. Toner, 728 F.2d 115, 128 (2d Cir. 1984) (“The right to possess a gun is clearly not a fundamental right ... .”); see Lewis v. United States, 445 U.S. 55, 66 (1980) (suggesting the right to bear arms is not as fundamental as other rights). 68.

Mathew S. Nosanchuk, T H E E M BARRASSING I NTERPRETATIO N O F TH E S EC O N D A M E ND M EN T , 29 N. Ky. L. Rev. 705, 784 (2002) (“Even what the Supreme Court describes as a fundam ental right does not always merit strict scrutiny.”). Nosanchuk aptly recognizes that courts apply lower level scrutiny in the doctrines of a number of constitutional rights, including free speech and equal protection. Id. at 785-86. 69.

See Chemerinsky, supra note 28, at 379.

70.

Id. at 382-84. 12

SCRUTINIZING

THE

SECOND AMENDM ENT

A third definition of fundamental rights limits them to a narrower class of so-called preferred rights that are “clothed with special judicial protection.”71 These rights include freedom of speech, freedom of religion, the right to vote, the right to marry, and the right to privacy.72 Although the Court has never made clear precisely why some individual rights are preferred over others, traditional theories emphasize that these core rights are essential to freedom and human dignity.73 I will leave it to others to argue whether the right to bear arms serves these functions. In any case, assuming the right is deemed fundamental because it is a preferred right, strict scrutiny remains far from certain. Even among preferred rights, strict scrutiny is not always applied. Strict scrutiny, for example, does not apply to fundamental, preferred rights when the courts determine that the underlying burden is only incidental. Constitutional scholars, including Michael Dorf and Alan Brownstein, have shown the pervasiveness of courts’ upholding laws deemed to be incidental burdens on fundamental rights.74 Such laws are “real infringements of rights,” according to Dorf, yet the Supreme Court nevertheless tends to apply lower-level scrutiny (or none at all) absent a “substantial” burden on the rights.75 This approach is common in speech, religion, and privacy cases.76 Let us take the right of privacy as an illustration. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court affirmed the “central holding” of Roe v. Wade77 that a woman has a privacy right to choose abortion,78 but the joint opinion (and later a majority of the Court)79 abandoned Roe’s strict scrutiny framework in favor of a more lenient “undue burden” test.80 A woman’s right to choose was not deemed to be any less fundamental; according to the joint opinion in Casey, “these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”81 Yet this right, so vitally important to human [*699] dignity, did not trigger strict scrutiny, at least so long as the basic ability to choose abortion early in pregnancy was preserved. With regard to mere burdens on the right, the level of judicial protection was markedly less than strict scrutiny; so long as a law does not pose an undue

71.

See Henry J. Abraham, Fundamental Rights, in 3 E NC YCL O P ED IA 1176, 1177 (Leonard W. Levy et al., eds., 2d. ed. 2000). 72.

OF TH E

A M E RIC AN C O NSTITUTIO N

See id.; Laurence H. Tribe, American Constitutional Law 770 (2d ed. 1988) (identifying “preferred rights”).

73.

See, e.g., id., at 770 (arguing that the underlying interests “touch[] more deeply and permanently on human personality [and] came to be regarded as the constituents of freedom ... .”). 74.

See Alan Brownstein, H O W R IGH TS A RE I NFRING ED : T H E R O LE OF U ND UE B U RD EN A NALYSIS IN C ONSTITUTIONAL D O C TRIN E , 45 Hastings L.J. 867, 893-94 (1994); Dorf, supra note 51, at 1180. 75.

Dorf, supra note 51, at 1179-80.

76.

See id. at 1199-200.

77.

410 U.S. 113 (1973).

78.

505 U.S. 833, 853 (1992) (joint opinion).

79.

Stenberg v. Carhart, 530 U.S. 914, 921 (2000).

80.

Casey, 505 U.S. at 876.

81.

Id. at 851. 13

SCRUTINIZING

THE

SECOND AMENDM ENT

burden on the right prior to viability, it will survive.82 While the nuances of the undue burden test remain to be seen, its leniency relative to strict scrutiny is readily apparent. The three abortion regulations upheld in Casey - parental notification,83 informed consent,84 and a twenty-four-hour waiting period85 - would have been invalidated under Roe’s strict scrutiny framework.86 Commentators have argued that the undue burden standard is essentially a form of scrutiny akin to intermediate or rational basis review.87 The Supreme Court has used something less than strict scrutiny for even substantial burdens on fundamental rights, at least in the context of the right of privacy. In Lawrence v. Texas,88 for example, the Court invalidated Texas’s criminal ban on private intimate sexual relations among persons of the same sex. While Lawrence never quite said the underlying right was fundamental - and the opinion was hardly a model of clarity, making strong inferences difficult to draw - the Court was straightforward in tying the underlying right to a line of cases stretching from Griswold v. Connecticut 89 to Roe v. Wade90 that did unambiguously recognize sexual privacy rights as fundamental.91 Moreover, the Court held that the “right to liberty under the Due Process Clause gives [same-sex partners] the full right to engage in their conduct without intervention of the government,” 92 and such substantive due process rights are usually thought of as fundamental. Nevertheless, the Court avoided the language of strict scrutiny and invoked instead what [*700] appeared to be the rational basis test,93 demanding that the law be justified merely by a “legitimate state interest.” 94 With nothing more than moral disapproval to justify the law, the Court ruled that even this

82.

Id. at 876.

83.

Id. at 899-900.

84.

Id. at 881-85.

85.

Id. at 886-87.

86.

See, e.g., Hodgson v. Minnesota, 497 U.S. 417 (1990) (invalidating a parental notification requirement under Roe); Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983) (invalidating a waiting period under Roe). 87.

See, e.g., Deborah A. Ellis, P RO TECTING “P REGNANT P ERS O NS ”: W O M EN ’ S E Q U ALITY AN D R EPRO DU CTIVE F REEDO M , 6 Seton Hall Const. L.J. 967, 975-76 (1996); Gillian E. Metzger, U NBURDENING TH E U ND UE B U RD EN S TANDARD : O RIENTING C AS EY IN C O NS TITUTIO NAL J URISPRUDENCE , 94 Colum. L. Rev. 2025, 2033 (1994). One reasonable reading of Casey is that the joint opinion’s undue burden test is not a standard of review at all but a categorical rule: if the law poses an undue burden, it is invalid, and if the law does not pose an undue burden, it survives. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). While I recognize this potential reading, the point remains that even the fundamental right to privacy is subject to something other than strict scrutiny review. 88.

539 U.S. 558 (2003).

89.

381 U.S. 479 (1965).

90.

410 U.S. 113 (1973).

91.

See Lawrence, 539 U.S. at 564-66.

92.

Id. at 578.

93.

Id. at 586, 599 (Scalia, J., dissenting).

94.

Id. at 578 (majority opinion). 14

SCRUTINIZING

THE

SECOND AMENDM ENT

low hurdle was not met. The only federal circuit court decision to date to consider the issue held that Lawrence applied rational basis review, not strict scrutiny.95 If it was ever true that all fundamental rights elicited strict scrutiny, the Rehnquist Court in cases like Lawrence and Casey charted a different course. Even preferred rights sometimes receive little more than rational basis review. Whether the right to bear arms is fundamental in any of the three potential definitions, strict scrutiny may or may not apply. The mere fact of “fundamentality” does not answer the question of what would be the appropriate standard of review for the right to bear arms. C. Theories of Strict Scrutiny Rebutting the arguments that all provisions that are in the Bill of Rights or that are deemed to protect a “fundamental” right trigger strict scrutiny reveals only that strict scrutiny is not automatic. It does not indicate affirmatively whether strict scrutiny is appropriate. Perhaps the best way to answer this latter question is to consider the individual right to bear arms in light of the traditional justifications for strict scrutiny. Does the right to bear arms fit comfortably with the underlying theoretical reasons why courts apply heightened review to certain constitutional rights? Does legislation burdening the right to bear arms pose the sort of dangers that strict scrutiny is designed to protect against? There are two main theories of strict scrutiny: an invidious motive theory and a cost-benefit theory.96 Neither gives strong support for the application of strict scrutiny to laws burdening the right to bear arms. 1. Invidious Motive Theory of Strict Scrutiny The invidious motive theory has its roots in the development of equal protection law by the Vinson and Warren Courts to confront the problem of race discrimination. In a series of decisions, the Court explained that heightened review was necessary for certain constitutional rights when any legislative encroachment ought to be thought of as “immediately suspect.”97 [*701] What made a law suspect was the likelihood that the motives underlying the legislation were “invidious” 98 or improper. As the Rehnquist Court recently explained in the context of race discrimination: “the reasons for strict scrutiny are familiar. Racial classifications raise special fears that they are motivated by an invidious purpose.”99 Strict scrutiny is thus a tool “to “smoke out’ “ illegitimate motives where there is special reason to believe such motives led to the challenged law.100

95.

Lofton v. Sec’y of Dep’t. of Children and Family Servs., 358 F.3d 804, 817 (11th Cir. 2004). This circuit court decision is not without controversy. See Mark Strasser, R EBELLIO N IN TH E E LEVENTH C IRCUIT : O N L AW REN CE , L O FTO N , AND TH E B EST I NTERESTS OF C H ILDREN , 40 Tulsa L. Rev. 421 (2005). 96.

See Stephen A. Siegel, T H E O RIG IN O F TH E C O M PELLING S TATE I NTEREST T ES T AN D S TRICT S C RU TIN Y 7 & n.31 (Jan. 2006) (unpublished manuscript, on file with author). 97.

Korematsu v. United States, 323 U.S. 214, 216 (1944). Elena Kagan has argued that First Amendment strict scrutiny also reflects a hunt for illicit m otivation. Elena Kagan, P RIVATE S PEEC H , P U BLIC P URPOSE : T H E R O LE O F G O VERNM ENTAL M O T IVE IN F IRST A M ENDMENT D O C TRIN E , 63 U. Chi. L. Rev. 413, 453-54 (1996). 98.

Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

99.

Johnson v. California, 543 U.S. 499, 505 (2005).

100.

Id. at 506 (quoting Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion)). 15

SCRUTINIZING

THE

SECOND AMENDM ENT

The motive behind most gun control law is to enhance public safety, which is hardly an invidious motive. In fact, it is a perfectly legitimate goal for government. Not only is government permitted to impose restrictions on firearms to reduce violence and injury, government has a “duty” to do so.101 Guns are undeniably dangerous and some measure of regulation is necessary in light of the overwhelming state interest in preserving the safety and security of the public from deadly weapons. 102 Individual-rights scholars agree.103 According to Randy Barnett, “virtually all individual-rights scholars ... hold the position that an individual right may be subject to regulation.”104 According to Donald Dowd, “[a] legislature cannot be presumed to have acted unconstitutionally when it passes gun control measures for the purpose of preventing the harm that can be caused by guns.” 105 The underlying end of gun control, as a general matter, is not illegitimate and thus such laws are not properly considered “immediately suspect.” To be sure, there have been and will be occasional gun control laws enacted with illegitimate motivation. In the right-to-bear-arms context, a constitutionally “illegitimate” motive might be to disarm the people completely. No doubt some gun enthusiasts fear that that proponents of gun control truly desire to make the United States more like Great Britain, where individual gun possession is traditionally illegal. Assuming an individual right, no legislature can appropriately set out to completely deny the people access to all guns. Even shielded by the justification of public safety, disarmament would eliminate a constitutional right and absent constitutional amendment would be per se illegitimate. Even though some gun control measures may be motivated by constitutionally illegitimate objectives, this alone is not sufficient to warrant strict scrutiny’s presumption of unconstitutionality. There must also be a high [*702] likelihood that all legislation in the area is motivated by improper motives. In City of Cleburne v. Cleburne Living Center, Inc.,106 which held that strict scrutiny was not applicable to disability classifications, the Court explained that where some legislation in an area is “plainly ... legitimate,” the “predicate” for “heightened scrutiny” is not present.107 In the disability context, the Court found that rational basis review was applicable because “in the vast majority of situations” legislation is not invidious but “desirable.” 108 Moreover, legislation in the area was “a difficult and often a technical matter.”109 As a result, “a certain amount of flexibility and freedom from judicial oversight”110 was required. The same can be said

101.

People v. Blue, 544 P.2d 385, 390-91 (Colo. 1975).

102.

See State v. Cole, 665 N.W.2d 328, 337 (Wis. 2003).

103.

See, e.g., Don B. Kates Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 260-62 (1983) (identifying permissible restrictions on the individual right to bear arms); Lund, supra note 1, at 122-23 (same); Reynolds, supra note 1, at 478-79 (same). 104.

Barnett, supra note 7, at 270.

105.

Dowd, supra note 47, at 109.

106.

473 U.S. 432 (1985).

107.

Id. at 442-43.

108.

Id. at 444.

109.

Id. at 443.

110.

Id. at 445. 16

SCRUTINIZING

THE

SECOND AMENDM ENT

for the right to bear arms: some regulation is necessary, and achieving public safety is a difficult and technical task worthy of some legislative leeway. Recognition of the legitimacy of gun control as a general matter does not mean that courts should have no continuing oversight role to play in right-to-bear-arms cases. The Cleburne Court was not ignorant of the potential for an improperly motivated disability classification; the particular law at issue in the case was invalidated for being a reflection of “mere negative attitudes.” 111 The point of Cleburne is that when the majority of laws can be expected to be motivated by legitimate governmental concerns lower-level scrutiny suffices to smoke out the occasional instance of illegitimate motive. Strict scrutiny is appropriately reserved for areas of law, such as race discrimination and restrictions on political speech, where we would expect most, if not all, regulation to be invidious. Even well-meaning legislation can be constitutionally invidious if the underlying political process is operating with systemic defects - say by excluding some from participating in lawmaking.112 Restrictions on the free flow of democratic self-government represent another form of improper purpose that occasion strict scrutiny’s presumption of unconstitutionality. But even with gun control widespread, gun owners are hardly a Second Amendment version of a suspect class. Gun enthusiasts are a powerful political force, represented ably at both the federal and state level by the National Rifle Association and other groups. Proponents of gun rights have succeeded in amending twelve state constitutions since 1978 to add protections for the individual right to bear arms. 113 One sign of the pro-gun [*703] movement’s political power is the remarkably rapid adoption of concealed carry laws in recent years. Since 1990, twenty-nine states have passed legislation permitting the concealed carrying of firearms and a total of thirty-nine states now have such laws.114 In Second Amendment cases, the political process concerns that often motivate heightened review are not present.115 The invidiousness of restrictions on the free flow of democratic processes might have salience to the Second Amendment if that provision were read to secure the people’s right to revolt against tyrannical government. Legislators might limit access to weapons to eliminate the possibility of successful revolution. Yet contemporary Second Amendment scholarship disfavors the revolution-preserving basis of the arms right, emphasizing instead individual security or self-protection.116 116 Under such a reading, the right is fundamentally about securing individuals’ ability to defend themselves, their homes, and their families from violent attack. The reason for the rejection of a right of revolution is plain: armed revolt against today’s 111.

Id. at 448.

112.

Cf. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (suggesting heightened review when the political process is defective). I thank Robert Goldstein for persuading m e to give due attention to the process-based justification for strict scrutiny. 113.

TO

K EEP

Robert A. Creamer, Note, H ISTORY I S N OT E NO UG H : U SING C ONTEMPO RARY J US TIFICATIO NS FOR TH E R IG H T B EAR A RM S IN I NTERPRETING TH E S EC O N D A M E ND M EN T , 45 B.C. L. Rev. 905, 919 (2004).

AN D 114.

Mark Fritz, Selling Guns to the Gun-Shy, W ALL S T . J., July 28, 2005, at B1.

115.

Cf. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 443-44 (1985) (arguing that the political success of the disabled “belies a continuing apathy or prejudice and a corresponding need for more intrusive oversight by the judiciary”). 116.

E.g., Massey, supra note 39, at 1123 (“Almost nobody believes that the citizenry is constitutionally entitled to resist governmental tyranny by force of arms. The insurrectionist view of the arms right receives little support and we may safely discount it.” (emphasis omitted)). 17

SCRUTINIZING

THE

SECOND AMENDM ENT

military would require the possession of powerful weapons such as bombs, shoulder-launched missiles, and howitzers. Civilized society simply cannot tolerate individual possession of such weapons, and not even the most vigorous proponent of an individual right to bear arms would argue otherwise. As a result of the rejection of the right of revolution, the process-based concern for governmental entrenchment loses much of its force. Thus, even strong proponents of an individual right to bear arms concur that some legislative regulation is legitimate, and there are no countervailing reasons to believe that all or even most gun laws should be viewed as inherently suspect. There is clearly a place for regulation of the right to bear arms, making strict scrutiny’s presumption of unconstitutionality inappropriate for gun control under the invidious motive theory. 2. Cost-Benefit Theory of Strict Scrutiny The second theory of strict scrutiny justifies heightened review as a judicial mechanism to enforce the “overarching commitment” to protect certain rights from all but the most rare and extraordinary government regulation.117 According to Stephen Siegel’s excellent history of strict scrutiny, the standard arose as a “tool to determine whether there is a cost-benefit justification for governmental action that burdens interests for which the Constitution demands unusually high protection.” 118 Rights are not absolute [*704] bars on legislation, but rights can only be regulated in the most compelling and exigent circumstances.119 Strict scrutiny, according to Ashutosh Bhagwat, serves as “a safety valve in the event of a ‘hard case,’ where the governmental and societal reasons for infringing upon an individual right are particularly strong.” 120 The cost-benefit, or hard case, approach to heightened review originated in the Supreme Court’s free speech decisions of the mid-twentieth century.121 Free speech required unusually great protection from legislative infringement because of “its central function in the preservation of the democratic process.”122 The speech right is preferred because, unlike many other rights, it is essential to the smooth functioning of our representative system. When government limits speech, self-government suffers because only government-approved ideas are allowed. One may reasonably question how central the individual right to bear arms is to the democratic process. The federal government has operated at least since the 1930s without a recognized individual right, and self-governance has not withered. In fact, we might imagine that allowing only government-approved guns helps, rather than inhibits, democracy. Whereas robust protection of free speech makes democratic dialogue uninhibited and thus serves democracy, if everyone had access to howitzers and machine guns, representative democracy would likely be harder, not easier, to achieve. As African Americans learned too

117.

See Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 741 (1996) (describing this tradition after a long list of citations to landmark speech cases). 118.

Siegel, supra note 96, at 84.

119.

See id. at 23.

120.

Ashutosh Bhagwat, H ARD C ASES AND 961, 970 (1998). 121.

See Siegel, supra note 96, at 16-27.

122.

Id. at 22-23.

TH E

(D)E VO LUTIO N O F C O NS TITUTIO NAL D O C TRIN E , 30 Conn. L. Rev.

18

SCRUTINIZING

THE

SECOND AMENDM ENT

well during Reconstruction, the threat of violence is an extremely effective means of keeping people from democratic participation.123 Moreover, the recognized need for some degree of regulation of firearms suggests that gun control is ordinary rather than exigent. If courts allow only the rare gun control measure to survive - the so-called “hard case” - then the legislative duty to protect the public safety will be profoundly frustrated. In Employment Division, Department of Human Resources v. Smith,124 Justice Scalia’s majority opinion argued that strict scrutiny was not appropriate in most free exercise cases because many burdensome laws were nevertheless necessary for the public welfare. “If “compelling interest’ really means what it says ... many laws will not meet the test” - a result he warned would be “courting anarchy.”125 Such a concern for anarchy has even more force in the context of the right to bear arms, where obvious public dangers [*705] would stem from a vigorous judicial oversight that undermined the legislatures’ ability to regulate weapons. D. Strict Scrutiny in the States In light of the poor fit of the right to bear arms with the traditional theories of strict scrutiny, perhaps it should come as little surprise that courts in states with constitutional right-to-bear-arms guarantees decline to apply that standard to gun control. The question has arisen in numerous cases, but the state courts “have universally rejected using a ‘strict scrutiny’ test.” 126 An illustration is State v. Cole, a 2003 decision of the Wisconsin Supreme Court.127 The Wisconsin Constitution was amended in 1999 to include a new provision guaranteeing an individual right to bear arms, and the court was asked to apply strict scrutiny to the state’s concealed carry permitting law.128 Explaining that “relatively deferential” review was “appropriate because the interests of public safety involved here are compelling,” 129 the court held that arms regulation should not receive strict scrutiny’s presumption of unconstitutionality. Cole continued: We find that the state constitutional right to bear arms is fundamental. It is indeed a rare occurrence for the state constitution’s Declaration of Rights to be amended. Article I, Section 25 explicitly grants a right to bear arms. Further, there is evidence in the legislative history of the amendment that it was intended to grant a “fundamental individual” right.

123.

Cf. Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877, at 425-28 (1988) (describing how the Ku Klux Klan used violence to intimidate African Americans from political participation). 124.

494 U.S. 872 (1990).

125.

Id. at 888.

126.

Jeffrey Monks, Comment, T H E E ND OF G U N C ONTROL OR P RO T EC TIO N A GAINST T YRAN NY ?: T H E I M PACT O F N EW W IS CO N SIN C O NS TITUTIO NAL R IG H T TO B EAR A RM S O N S TATE G U N C O NTRO L L AW S , 2001 Wis. L. Rev. 249, 290 (emphasis added). TH E

127.

665 N.W.2d 328, 337 (Wis. 2003).

128.

Id. at 329.

129.

Id. at 337; see also State v. Mendoza, 920 P.2d 357, 367-68 (Haw. 1996) (rejecting strict scrutiny); Arnold v. Cleveland, 616 N.E.2d 163, 173 (Ohio 1993) (rejecting strict scrutiny because “there must be some limitation on the right to bear arms to maintain an orderly and safe society”). 19

SCRUTINIZING

THE

SECOND AMENDM ENT

Nevertheless, we do not agree with Cole’s position that strict scrutiny or intermediate scrutiny is required in this case.130 Note that strict scrutiny does not apply despite the court’s recognition of the right to bear arms as fundamental. Cole and the decisions of other state courts uniformly hold that, even if the right to bear arms is a fundamental right, deferential review is appropriate for arms regulation. 131 If there was any doubt about the possibility of something much less demanding than strict scrutiny applying to a right considered “fundamental,” one need look only at the state courts in right-to-bear-arms cases to see it in practice. [*706]

III. Toward a Reasonable Second Amendment In lieu of strict scrutiny, the state courts apply a deferential scrutiny that requires laws merely to be “reasonable regulations” on the arms right. Would a similar reasonableness standard be appropriate for the Second Amendment right to bear arms? This Part argues that some form of relatively deferential review that allows a considerable amount of legislative leeway is supported by the text of the Second Amendment and the history of the right to bear arms more generally. Moreover, structural and institutional concerns about an assertive federal judiciary in this area further counsel in favor of deference. A. Text The text of a constitutional provision rarely answers all of the legal questions courts are called upon to answer. Perhaps nowhere is this more the case than in the Second Amendment, as the provision’s confusing wording and grammar have for many generations clouded both the nature of the guarantee and the extent of the limits, if any, the provision imposes on government. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” 132 Nevertheless, the text is the traditional starting point of any constitutional interpretation. More importantly to the question of the standard of review, the text offers a valuable insight: at least some regulation of the underlying right is explicitly envisioned. The provision specifically recognizes that the militia must be “well regulated.” The extent of that regulation is not answered by the text, but some amount of government regulation of the militia is not only acceptable but even “necessary.” According to the individual-rights reading, the Framers understood the “Militia” to refer “to all of the people, or at least all of those treated as full citizens of the community.” 133 In Emerson, the Fifth Circuit explained that the “Militia” was not “some formal military group separate and distinct from the people at

130.

Cole, 665 N.W.2d at 336 (citations omitted).

131.

See, e.g., Mosby v. Devine, 851 A.2d 1031, 1044 (R.I. 2004) (“Even in jurisdictions that have declared the right to keep and bear arms to be a fundamental constitutional right, a strict scrutiny analysis has been rejected in favor of a reasonableness test ... .”); Klein v. Leis, 795 N.E.2d 633, 637 (Ohio 2003) (describing the state’s power to regulate weapons possession). 132.

U.S. Const. amend. II.

133.

Levinson, supra note 1, at 646-47; see also Randy E. Barnett & Don B. Kates, U NDER F IRE : T H E N EW C O NS ENSU S O N TH E S EC O N D A M E ND M EN T , 45 Emory L.J. 1139, 1155 (1996); Akhil Reed Amar, T H E B ILL OF R IGH TS AS A C O NSTITUTIO N , 100 Yale L.J. 1131, 1164 (1991). 20

SCRUTINIZING

THE

SECOND AMENDM ENT

large.”134 If the “Militia” is understood to be comprised of “the people generally,” 135 outside of an organized fighting force, then the Second Amendment would seem to permit at least some measure of legislation affecting the arms bearing of these ordinary individuals. They comprise the militia and, as a result, are themselves subject to being “well regulated.” Indeed, there is no other way to regulate an unorganized militia comprised [*707] of the people at large than to adopt rules and requirements targeted at individual ownership and possession. What does the Second Amendment mean by its reference to “well regulated” ? Under a broad interpretation, the reference might be taken to recognize a great deal of governmental authority to preserve public safety. Several leading individual-rights scholars, by contrast, have argued for a narrow reading according to which the Framers meant to allow only training and discipline. According to this reading, a “well regulated militia” was to the Framers “one that was well-trained and equipped; not one that was “well-regulated’ in the modern sense of being subjected to numerous government prohibitions and restrictions.” 136136 Regardless of which view of regulation is the correct one, even under the narrow reading there is some legitimate space for government to adopt laws to enhance safe gun possession. Training and discipline does not simply happen; laws must be adopted to ensure that the people are properly educated about guns and that the people understand the rules governing the use of guns. Discipline implies control, and the state disciplines individual gun users by teaching them the rules and by punishing them for failure to obey. No doubt there is a limit to governmental authority: “well regulated” should also be understood as a limitation on governmental power. According to Nelson Lund, the text envisions a militia that is not “overly regulated or inappropriately regulated.”137 By the same token, however, a “well regulated militia” is also one that is not under-regulated. Some measure of regulatory authority, even though its precise contours are unclear, does seem to be called for by the text. Contrast the Second Amendment nod to governmental authority with the language of the neighboring First Amendment, where heightened scrutiny occasionally applies. Proponents of an individual right to bear arms often call for the Second Amendment to be interpreted in the same manner as the First Amendment.138 For purposes of evaluating an appropriate standard for judicial review of legislation, the textual difference between the two could not be starker. The First Amendment states “Congress shall make no law” 139 abridging the individual rights it guarantees, whereas the Second describes the “necessity” of a “well regulated Militia.” One provision suggests the invalidity of any legislation; the other invites regulation. A relatively broad reading of the governmental power to organize, train, and discipline the militia might also be appropriate in light of the public safety point made earlier: government regulation of guns in modern society is truly “necessary.” No mainstream scholar of the Second Amendment denies that government must have the authority to adopt legislation prohibiting a variety of weapons (such as machine guns), requiring education and training, and restricting access to guns by irresponsible bearers (such as

134.

United States v. Emerson, 270 F.3d 203, 235 (5th Cir. 2001).

135.

Id.

136.

Reynolds, supra note 1, at 474; see also Barnett & Kates, supra note 133, at 1209.

137.

Nelson Lund, T H E E ND S O F S EC O N D A M ENDMENT J U RIS PRU D EN CE : F IREARM S D IS ABILITIES D O M ES TIC V IO LENCE R ESTRAINING O RDERS , 4 Tex Rev. L. & Pol. 157, 175 (1999) (emphasis omitted). 138.

See, e.g., Barnett, supra note 7, at 271.

139.

U.S. Const. amend. I (emphasis added). 21

AN D

SCRUTINIZING

THE

SECOND AMENDM ENT

minors [*708] and dangerous criminals). There is bound to be disagreement about the precise extent of governmental authority; determining the correct line is not my goal here. It is enough for my purposes that there is a baseline agreement that some regulation is perfectly legitimate. For a court choosing a standard of review, then, a heightened standard that presumes every regulation to be unconstitutional makes no sense. Again, the state experience is instructive. My colleague Eugene Volokh has shown the importance of looking to the state right-to-bear-arms provisions in trying to understand the Second Amendment.140 Like the Second Amendment, several of the state constitutions with individual rights guarantees also explicitly recognize in the text a degree of regulatory authority. Florida’s constitution reads, “the right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.” 141 Georgia’s constitution provides that “the General Assembly shall have the power to prescribe the manner in which arms may be borne.”142 Prior to 1978, Idaho’s right-to-bear-arms provision not only recognized regulation as legitimate, but commanded government to undertake it: “the legislature shall regulate the exercise of this right by law.”143 But such language is hardly a condition for deferential review of gun control. The majority of state individual-rights provisions contain no such language, yet the courts still apply the same reasonable regulation standard. The text of the Second Amendment recognizes a measure of governmental authority to regulate those who possess arms. In choosing a standard of review to apply to gun control, the federal courts should look for a way to protect the basic right to bear arms, while at the same time respecting the text’s call for legislative room to regulate guns. The Second Amendment’s nod to the propriety of some regulation suggests that courts should avoid adopting a presumption of invalidity that might threaten or unduly discourage such legislative activity. B. History Any effort to give meaning to the Second Amendment must account for the historical development of the right to bear arms and its place in American governance. For centuries, even before the Revolution, the law has [*709] regulated gun ownership and use. Although the terminology of “gun control” is modern, the practice of arms regulation extends back deep into Anglo-American law. The right to bear arms with which our Founders were familiar was one that had always been subject to regulation. English law dating back to the twelfth century restricted where and when arms could be borne. The Statute of Northampton, adopted in 1328, declared that “no Man great nor small” was permitted “to come before the King’s Justices, or other of the King’s Ministers ... with Force and Arms,” or to “ride armed

140.

E.g., Eugene Volokh, T H E C O M M O NPLAC E S EC O N D A M E ND M EN T , 73 N.Y.U. L. Rev. 793 (1998); see also David B. Kopel, W H AT S TATE C ONSTITUTIONS T EACH A B O UT TH E S EC O N D A M E ND M EN T , 29 N. Ky. L. Rev. 827, 827 (2002) (“It is well-settled that state constitutions can serve as an aid to interpreting the federal Bill of Rights. Regarding the Second Amendment, state constitutions are especially helpful.”). 141.

Fla. Const. art. I, § 8(a).

142.

Ga. Const. art. I, § 1, P VIII.

143.

Idaho Const. art. I, § 11 (amended 1978) (emphasis added). Other states with similar language include Illinois, Ill. Const. art. 1, § 22 (“Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed.”), and Utah, Utah Const. art. I, § 6 (1984) (“Nothing herein shall prevent the legislature from defining the lawful use of arms.”). 22

SCRUTINIZING

THE

SECOND AMENDM ENT

by Night nor by Day, in Fairs, Markets.” 144 The 1689 English Bill of Rights provided that “Subjects which are Protestants may have Armes for their defence Suitable to their Condition and as allowed by Law.”145 The mention of suitability and the allowance only of specific religious adherents to possess arms indicate that the right was not considered absolute or immune to government oversight. Blackstone’s Commentaries on the Law of England, written in 1765, also noted that the people enjoyed a right to bear arms “suitable to their condition and degree, and such as are allowed by law,” adding that the right was subject to “due restrictions.”146 According to historians Saul Cornell and Nathan DeDino, who have researched gun control in early America, “a variety of gun regulations were on the books when individual states adopted their arms-bearing provisions and when the Second Amendment was adopted.”147 Among the most intrusive form of arms regulations existing at the time of the Founding were militia laws.148 These state laws required the government to keep detailed records of which individuals possessed arms,149 not unlike modern registration laws. The militia laws also recognized the government’s authority to require gun owners to report for a “muster” - a gathering in which arms would be inspected or the men trained - under penalty of fines.150 Some states also required gun owners to take loyalty oaths, upon which the right to possess firearms was contingent.151 According to a 1778 Pennsylvania law, any [*710] person to “refuse or neglect to take the oath or affirmation” of loyalty to the state was required to turn in his arms and barred from keeping any firearms or ammunition in his “house or elsewhere.”152 At the time of the Founding, states also regulated the storage of gunpowder and imposed limits on the amount of ammunition a person could keep in his

144.

S TATUT E

145.

1 W. & M., 2d sess., c. 2, § 7 (1689).

146.

OF

N O RTH AM PTO N , 2 Edw. 3, c. 3 (1328).

1 W ILLIAM B LAC KS TO N E , C O M M ENTARIES 1979) (1765).

O N TH E

LA W S

OF

E N G LA N D 139 (Univ. of Chicago Press,

147.

Saul Cornell & Nathan DeDino, A W ELL -R EG U LATED R IG H T : T H E E A RL Y A M E R IC AN O RIG INS O F G U N C O NTRO L , 73 Fordham L. Rev. 487, 502 (2004). See generally Saul Cornell, A W ell-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (2006) (documenting early efforts to regulate guns). 148.

Id. at 505. For examples of state laws regulating the militia, see A CT O F M AY 8, 1792, 1792 C O N N . P U B . A CTS 423; A CT O F J ULY 19, 1775, ch. 1, 1776 M ASS . A CTS 15; A CT O F A PR . 3, 1778, ch. 33, 1778 N.Y. L AW S 62; A CT O F M AR . 20, 1780, ch. 167, 1780 P A . L AW S 347; and A CT O F M AR . 26, 1784, 1784 S.C. A CTS 68. 149.

Cornell & DeDino, supra note 147, at 505; see, e.g., § 9, 1776 M ASS . A CTS at 18 (requiring “an exact List of [each man in the] Company, and of each Man’s Equipments”). 150.

See, e.g., § 9, 1776 M ASS . A CTS at 18; 1778 N.Y. Laws at 66; 1784 S.C. Acts at 68.

151.

See, e.g., Act of Mar. 14, 1776, ch. 7, 1776 Mass. Acts 31; Act of Apr. 1, 1778, ch. 61, § 5, 1778 Pa. Laws

123, 126. 152.

§ 5, 1778 P A . L AW S at 126; see Cornell & DeDino, supra note 147, at 506. 23

SCRUTINIZING

THE

SECOND AMENDM ENT

home.153 A Massachusetts law from 1783 barred the inhabitants of Boston from keeping loaded arms in “any Dwelling House, Stable, Barn, Out-house, Ware-house, Store, Shop, or other Building.”154 “In the years after the adoption of the Second Amendment,” Cornell and DeDino observe, “the individual states adopted even more stringent types of regulations ... . The decades after ratification ... saw increased, not decreased, levels of regulation.”155 In the early nineteenth century, several states sought to preserve public safety by prohibiting or restricting the carrying of concealed weapons.156 Georgia and Tennessee criminalized the sale of certain weapons that were easily concealed.157 Other regulations on weapons from this period include licensing laws, restrictions on where firearms could be discharged, and compulsory militia musters.158 “If one simply looks at the gun laws adopted in the Founding Era and early Republic,” Cornell and DeDino argue, “the evidence for robust regulation is extensive.”159 Certainly it would be a stretch to claim that the founding generation believed that all weapons laws were inherently suspect and presumptively unconstitutional. The history of the Second Amendment in particular provides little support for heightened scrutiny. During its first century, the amendment was (like many others) moribund in the courts. In the nineteenth century, the Supreme Court did not invalidate any laws on the basis of the Second Amendment, and the only significant relevant cases held that the amendment was not incorporated to apply against the states.160 Over the last century, the Second Amendment has been read as lacking an individual right to bear arms and the federal courts have upheld scores of laws against Second Amendment challenge. Indeed, the federal courts have never used the Second Amendment to strike down a regulation of firearms. Even if one is [*711] inclined to discount at least some of this history due to the prevailing collective-rights view of the Second Amendment, the fact remains that the history of the Second Amendment is more consistent with deferential judicial review than with skeptical scrutiny. The history of the right to bear arms has also played out at the state level. For purposes of standards of review, the most important chapters in this story are those dealing with legal regulation and the limits imposed by judicial review. As noted, forty-two states currently have constitutional provisions guaranteeing

153.

E.g., Act of June 26, 1792, ch. 10, 1792 M ASS . A CTS 208 (addressing the carting and transporting of gunpowder in Boston); A CT O F A PR . 13, 1784, ch. 28, 1784 N.Y. Laws 627 (concerning the storage of gunpowder); A CT O F D EC . 6, 1783, ch. 104, 2 P A . L AW S 256; see also Cornell & DeDino, supra note 147, at 510-11. 154.

A CT

155.

Cornell & DeDino, supra note 147, at 502-505.

OF

M AR . 1, 1783, ch. 13, 1783 M ASS . A CTS 218.

156.

E.g., A CT O F M AR . 18, 1859, 1859 O H IO L AW S 56 (prohibiting the carrying of concealed weapons); A CT O F F EB . 2, 1838, ch. 101, 1838 Va. Acts at 76 (same); A CT O F O C T . 19, 1821, ch. 13, 1821 Tenn. Pub. Acts 15 (same); see also Cornell & DeDino, supra note 147, at 513. 157.

See A CT O F D EC . 25, 1837, 1837 Ga. Laws 90; A CT O F J AN . 27, 1838, ch. 137, 1838 Tenn. Pub. Acts 200.

158.

Cornell & DeDino, supra note 147, at 505, 515-16.

159.

Id. at 505.

160.

United States v. Cruickshank, 92 U.S. 542, 542 (1875) (holding that the Second Amendment did not apply to the states). 24

SCRUTINIZING

THE

SECOND AMENDM ENT

an individual right to bear arms.161 These states also have long histories of gun control, which the state courts have overwhelmingly found to be perfectly consistent with the existence of this individual right. This level of uniformity is itself telling, given the variety of cultures and ideologies among the states with such constitutional guarantees. The state practice of deferential scrutiny is considered more thoroughly below in Part IV. At this point, it suffices to recognize that the state constitutional doctrine on the right to bear arms is well developed and remarkably consistent across states. The state practice of judicial deference is uniform and the “reasonable regulation” standard has been applied to a vast array of different types of gun control, almost all of which have been upheld. For many state constitutions, the relevant “framing” period is not the 1780s, when the federal Constitution was formed, but later eras in which state constitutions were revised and amended. But regardless of which historical period the courts look to in defining the meaning of their state’s constitutional provisions, the result - deferential review - is the same. In Klein v. Leis,162 an Ohio decision upholding a law barring concealed carry, the court looked to history to inform the choice of standard for arms regulation. “Ohioans of the late nineteenth century,” Klein explained, considered the right to bear arms to be “limited.”163 As a result, a relatively deferential reasonableness test, rather than heightened scrutiny, captured the appropriate scope of the right. Courts interpreting even newer state constitutional provisions also reject heightened review in favor of the reasonable regulation standard. In Nebraska, for example, where the state amended its constitution to add an individual right to bear arms in 1988, the courts nevertheless rejected heightened review in a case decided the following year.164 Whether interpreting a new constitutional provision or one from the founding era, the state courts have consistently chosen to apply relatively light judicial scrutiny to gun control. In the modern era of constitutional law - roughly since World War II - the states have come together in a rare illustration of widespread consensus on what might otherwise be a controversial, hot-button issue. No state court applies heightened scrutiny and only [*712] a handful of state courts have invalidated any sort of gun law over the past sixty years for violating the right to bear arms. The state legal history of the right to bear arms unquestionably recognizes a right belonging to individuals, but one subject to regulation without vigorous judicial oversight. In other areas of law, constitutional thinkers have reminded us that established governmental traditions are to be respected in judicial interpretation.165 In the context of the right to bear arms, such respect translates into adherence to the tradition of judicial refusal to interfere with legislation imposing limits on guns. C. Structure Structural concerns also counsel against the adoption of any form of heightened scrutiny under the Second Amendment that significantly cuts back legislative authority to control guns. Vigorous judicial review

161.

For a very useful website providing a comprehensive listing of the state constitutional provisions, see Eugene Volokh, S TATE C O NS TITUTIO NAL R IG H T TO K EEP AN D B EAR A RMS P RO VIS IO N S , http://www.law.ucla.edu/volokh/beararms/statecon.htm (last visited Aug. 24, 2006). 162.

795 N.E.2d 633, 636 (Ohio 2003).

163.

Id. at 637.

164.

State v. Comeau, 448 N.W.2d 595, 598 (Neb. 1989).

165.

E.g., McCreary County v. ACLU, 124 S. Ct. 2722, 2752-53 (2005) (Scalia, J., dissenting) (arguing that established governmental practices of acknowledging God should inform construction of the Establishment Clause). 25

SCRUTINIZING

THE

SECOND AMENDM ENT

of gun regulation presents serious problems of federalism, separation of powers, and institutional competence. A decision by the Supreme Court to apply a truly strict scrutiny to gun control would substantially disrupt settled state law. All of the states currently use a reasonableness test, under which the courts have upheld any number of different types of gun control. If the Second Amendment promised a stricter form of review, the existing precedents would be rendered useless. Future gun litigation would not raise state constitutional right-to-bear-arms claims when a claim under the federal Constitution offered a more protective standard (and hence a better chance of victory). Second Amendment strict scrutiny would completely displace existing state law with a single national standard. While federal supremacy at times requires such displacement (consider Brown v. Board of Education’s antidiscrimination principle166 ), extreme caution is necessary when, as in the case of the right to bear arms, the Court would undo in one fell swoop decades of consistent, uniform case law from dozens of jurisdictions in the name of establishing a federal right already recognized at the state level. The states are often thought of as “laboratories of democracy,” meaning that at times they should be afforded sufficient space to experiment with various solutions to social problems without national governmental supervision.167 Due to the collective-rights interpretation of the Second Amendment, the federal courts have remained on the sidelines of experimentation and debate over the constitutionally permissible scope of gun control. The vast majority of states used that leeway to experiment with the right to bear arms. [*713] The unusual thing, from the perspective of democratic experimentalism, is that forty-two states have found themselves in the same place: a constitutional right to bear arms governed by deferential scrutiny. Just as the Supreme Court prefers to wait to rule on an issue until there is a split in the circuits, so too would the Court be well advised not to upset a broad state law consensus such as one finds with the right to bear arms. A single national standard of strict scrutiny would mean that the states would no longer be free, as they are now or would be under a Second Amendment reasonableness review, to experiment with different levels of scrutiny and to seek for themselves the balance between safety and weapons. In addition to the risk of federal overreaching, a Supreme Court decision adopting strict scrutiny would raise separation of powers concerns. Strict scrutiny would not just disrupt settled state law, it would also call into question a range of federal gun control laws. Congress has been regulating firearms for over seventy years,168 and a skeptical and rigorous form of judicial scrutiny would threaten existing federal gun control. Recall that the Ashcroft Memorandum made plain the Justice Department’s view that, even under an individual-rights construction of the Second Amendment, “all” federal gun control laws remained constitutional.169 If the Court were to apply a standard with real bite and invalidate many of those laws, the longstanding tradition of congressional authority to regulate weapons would be significantly curtailed.

166.

349 U.S. 294, 299 (1955).

167.

See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”). 168.

T H E N ATIO NAL F IREARM S A CT O F 1934 has been called “the first federal gun control law.” David Yassky, T H E S EC O N D A M E ND M EN T : S TRU CTURE , H ISTORY , AN D C O NS TITUTIO NAL C H ANG E , 99 Mich. L. Rev. 588, 662 (2000). That federal law is currently codified at 26 U.S.C. §§ 5801-5872 (2000). 169.

Ashcroft M EM O RAN DU M , supra note 6. 26

SCRUTINIZING

THE

SECOND AMENDM ENT

Profound questions of institutional competence also would attach to a Supreme Court decision to apply heightened review. In his famous article on “underenforced constitutional norms,” Larry Sager observed that courts often refuse to give full judicial protection to constitutional rights when judges feel themselves unable “to prescribe workable standards of state conduct and devise measures to enforce them.”170 At the state level, the right to bear arms is relatively underenforced by the judiciary, and a Second Amendment right to bear arms would be a good candidate for similar treatment.171 For one, the questions of gun policy are complex and the adverse consequences of judicial error are unusually great. The debates over the effectiveness of various forms of gun control are dense, and the empirical data often conflicting, leaving courts understandably reluctant to engage with them. Consider the influential study of economist John Lott, Jr., who found that [*714] concealed carry laws had a strong deterrent effect on crime.172 Lott’s sophisticated regression analyses were rebutted by resounding criticism of his methodology, and a wave of scholarship has challenged his analysis and conclusions. 173 Judges do not want, and are not especially competent, to sort out such disputes and settle intensely debated issues of social science. Granted, judges have stepped into other hotly contested, empirically debatable areas of law. But the consequences of erroneous judicial invalidation with regard to gun legislation are particularly undesirable. As one commentator notes, “if courts demand that legislators narrow gun regulations as narrowly as possible, they could be risking lives in the process.”174 Traditionally, when courts perceive that an erroneous judicial decision would pose substantial risks to public safety and security, they tend to adopt a stance of deference rather than skepticism. An example is deference to prison officials when they adopt regulations burdening inmates’ rights in the interest of prison safety. In most instances, the courts apply the deferential standard of Turner v. Safley, which requires only that prison policies be “reasonably related to legitimate penological objectives.”175 As the Supreme Court explained in that decision, “subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.”176 Substitute “legislators” for “prison officials” and “gun safety” for “prison administration,” and the logic of Turner’s deference retains its persuasive force. Weapons require some degree of regulation, but the problems of gun violence and crime have proven

170.

Lawrence Gene Sager, F AIR M E AS U R E : T H E L EG AL S TATUS 91 Harv. L. Rev. 1212, 1217 (1978).

OF

U N DEREN FO R CED C O NS TITUTIO NAL N O RM S ,

171.

Brannon Denning has argued that the Second Amendment right to bear arms is just this sort of underenforced right under current doctrine. See Brannon P. Denning, G U N S H Y : T H E S E C O N D A M ENDMENT AS AN “U N DEREN FO R CED C O NS TITUTIO NAL N ORM ,” 21 Harv. J.L. & Pub. Pol’y 719 (1998). Contrary to my argument, Denning’s article argues for far more vigorous judicial enforcement of the right. 172.

John R. Lott, Jr., M O RE G U N S , L ESS C RIM E : U NDERSTANDING C RIM E

173.

AN D

G U N -C O NTRO L L AW S (1998).

E.g., Ian Ayres & John J. Donohue III, S H O O TING D O W N TH E “M O RE G U N S , L ESS C RIM E ” H YPO TH ESIS , 55 Stan. L. Rev. 1193 (2003); Mark Duggan, M O RE G U N S , M O R E C RIM E , 109 J. Pol. Econ. 1086 (2001); Jens Ludwig, C O NC EALED -G U N -C ARRYING L AW S AN D V IOLENT C RIM E : E VIDENCE FRO M S TATE P ANEL D ATA , 18 Int’l Rev. L. & Econ. 239 (1998). 174.

Monks, supra note 126, at 264 n.94.

175.

482 U.S. 78, 99 (1987).

176.

Id. at 89. 27

SCRUTINIZING

THE

SECOND AMENDM ENT

enormously difficult to solve even with legislative flexibility and room to experiment. Second Amendment heightened review, if applied aggressively, could make finding those solutions even more difficult. Key to judicial deference in this area is the recognition that gun control reflects a delicate balance between individuals’ ability to protect themselves and the larger collective protection that people seek from government. An uninhibited right to bear arms without legislative limitations returns society to the state of nature, in which each person fends for herself. Hobbes famously argued that it was precisely the dangers of such an environment that required people to form governments and laws in the first place.177 One chief [*715] role of government, therefore, is to provide a collective measure of protection for all from violence and the threat of personal harm. Protection from injury by guns and criminals using guns is part of this governmental obligation. An individual right to bear arms means that government cannot achieve this goal through straightforward disarmament, but must instead balance the individual’s ability to defend herself against the collective need to protect all others. Achievement of that balance requires highly complex socio-economic calculations regarding what kinds of weapons ought to be possessed by individuals and how to limit access to them by those deemed untrustworthy or dangerous. Such complicated multi-factor judgments require trade-offs that courts are not institutionally equipped to make. Legislatures, by contrast, are structured to make precisely those kinds of determinations. The structural dilemma posed by the sudden establishment of a federal rule of heightened scrutiny is only exacerbated by the fact that the Supreme Court would be a newcomer to the individual-right-to-bear-arms field, which is already heavily populated by experienced state legislatures, state judiciaries, and the Congress. Most of the key issues in gun regulation have been the subject of state court rulings, often by numerous states all ruling the exact same way. For decades, and in some instances centuries, state lawmakers have been balancing the individual right to bear arms with the public safety concerns necessitating regulation. A “green” Court should not lightly disregard this wealth of experience. For institutional reasons, courts wisely tend to follow the path of other jurisdictions that have confronted the same issue, especially when there is widespread agreement. Indeed, state courts commonly cite the rejection of strict scrutiny by other state courts to justify their own decision to apply reasonableness review.178 As the Wisconsin Supreme Court explained in the Cole decision, “we find the precedents of other states, favoring a “reasonable’ test, to be persuasive in the context of the right to bear arms.”179 The Colorado Supreme Court observed that deferential review of weapons laws was “in accordance with the vast majority of cases construing state constitutional provisions.”180 The state court tradition of deference is itself partially a function of institutional competence concerns; all courts, from state to Supreme, are properly hesitant to presume the unconstitutionality of laws in an area where there is a conceded need for governmental regulation and where no other courts apply heightened scrutiny.

IV. T HE P RACTICE OF R EASON While the analysis of text, history, and structure offered above pointed in the direction of a relatively deferential scrutiny, it did not suggest any more [*716] precise contours of the appropriate standard. For

177.

Thomas Hobbes, L EVIATH A N 89 (Richard Tuck ed., Cambridge Univ. Press 1996) (1651).

178.

See, e.g., State v. Mendoza, 920 P.2d 357, 367-68 (Haw. 1996); Mosby v. Devine, 851 A.2d 1031, 1044

(R.I. 2004). 179.

State v. Cole, 665 N.W.2d 328, 336 (Wis. 2003).

180.

Robertson v. City of Denver, 874 P.2d 325, 329 (Colo. 1994). 28

SCRUTINIZING

THE

SECOND AMENDM ENT

that, the place to look is where the case law is rich with controversies dealing with the exact question: state constitutional law on the right to bear arms.181 The states have applied a reasonable regulation test to a wide array of gun control measures, with surprisingly little variation in reasoning or results. Oliver Wendell Holmes famously taught that “the life of the law has not been logic: it has been experience.”182 The American constitutional experience with the individual right to bear arms has taken place primarily in the states. If one wants to imagine what Second Amendment scrutiny will look like under an individual-rights reading, state constitutional law is the place to begin. A. The Reasonable Regulation Standard The state constitutional practice of applying deferential review in right-to-bear-arms cases extends back well over a century. In the late nineteenth century, state supreme courts began asking whether gun safety regulations were “reasonable.” In State v. Shelby,183 the Missouri Supreme Court upheld a prohibition on possession of firearms by intoxicated individuals against a challenge under the state’s constitution. While explaining that the state constitution “secures to the citizen the right to bear arms in the defense of his home, person, and property,” the court argued that the “statute is designed to promote personal security, and to check and put down lawlessness, and is thus in perfect harmony with the constitution.”184 “We are of the opinion the act is but a reasonable regulation of the use of ... arms, and to which the citizen must yield,” the court concluded.185 In the decades since, the reasonable regulation test has spread throughout the states with constitutional provisions guaranteeing an individual right to bear arms. The reasonable regulation test “should not be mistaken for a rational basis test,”186 such as that found in Equal Protection cases.187 Under rational basis review, the question is whether the law is a rational means of furthering legitimate governmental ends. The court applying rational basis review does not formally consider the extent of the burden on the individual; what [*717] matters is whether there are reasonable objectives served by the law. “The explicit grant of a fundamental right to bear arms,” courts insist, “clearly requires something more, because the right must not be allowed to become illusory.”188

181.

David Kopel, one of the leading experts on the Second Amendment, has written several excellent articles examining the state constitutional provisions guaranteeing a right to bear arms. See Kopel, supra note 140; David B. Kopel et al., A T ALE OF T H REE C ITIES : T H E R IG H T TO B EAR A RM S IN S TATE S U P R E M E C O U R T S , 68 Temp. L. Rev. 1177 (1995) [hereinafter Kopel et al., T H REE C ITIES ]. Kopel uses the state experience to support an individual-rights interpretation of the Second Amendment, but does not discuss in depth how the reasonableness standard used at the state level might work in the context of the Second Amendment. My discussion here fills this gap. 182.

Oliver Wendell Holmes, T H E C O M M O N L AW 5 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).

183.

2 S.W. 468 (Mo. 1886).

184.

Id. at 469.

185.

Id. (emphasis added).

186.

State v. Cole, 665 N.W.2d 328, 338 (Wis. 2003).

187.

See David B. Kopel, T H E L ICENS ING OF C O N C EALED H ANDGUNS FOR L AW FUL P RO TECTIO N : S UPPO RT FRO M F IVE S TATE S UPREM E C OURTS , 68 Alb. L. Rev. 305, 315-16 (2005) (distinguishing reasonable regulation and rational basis tests). 188.

Cole, 665 N.W.2d at 338. 29

SCRUTINIZING

THE

SECOND AMENDM ENT

Under the reasonable regulation test applied to gun control, the question is whether the challenged law is a reasonable method of regulating the right to bear arms. Even a law backed by legitimate governmental ends, though, can burden the right too much and be unconstitutional under the reasonable regulation test. If a state attempted to disarm its citizenry completely, such a law might well survive rational basis review, assuming the goal is public safety and that a rational legislator could conclude that banning all firearms furthers public safety. Under a reasonable regulation standard, however, a complete ban on firearms would effectively do away with the underlying right, and, as a result, such a law could not be a reasonable regulation of the right. The law might be a reasonable regulation of the polity or of society, but not of the right. Ordinary forms of gun control such as licensing laws, bans on concealed carry, and prohibitions on particular types of weapons are, by contrast, attempts to regulate the right rather than eliminate it and are routinely upheld. So long as a gun control measure is “not a total ban on the right to bear arms,”189 the courts will consider it a mere regulation of the right.190 The language used in state court opinions to describe the limits of reasonableness embodies the unique focus of the test used in right-to-bear-arms cases. State courts explain that the difference between reasonable and unreasonable regulation of the arms right is that any law that “eviscerates,”191 renders “nugatory,”192 or results in the effective “destruction” 193 of the right is unreasonable. A law that so excessively burdens the right as to destroy it will be invalidated. In this way, the reasonable regulation standard adopts a categorical rule: destruction of the right, such as by disarmament, is per se unconstitutional. In some decisions, the state courts also hold a gun law (or its application) to be unreasonable where the law is arbitrary or irrational. Short of nullifying the right to bear arms or being arbitrary, gun control laws consistently survive the reasonableness test. Courts applying the reasonable regulation standard go through the formal motions of identifying the underlying governmental objectives and weighing those goals against the burden on the individual. “The reasonableness test focuses on the balance of the interests at stake,”194 one court notes. But this balancing is decidedly [*718] tipped in favor of the government, so much so that the individual almost never wins. The large-scale problem of violence in society, which includes (but is not limited to) gun violence, virtually always overwhelms the individual challenger’s interest in self-defense or recreation. The burden on the individual is usually considered to be minimal so long as there are alternative means of exercising the right. According to the Ohio Supreme Court, “any [gun control measure] imposes a restraint or burden upon the individual, but the interest of the governmental unit is, on balance, manifestly paramount.”195 There has been no comprehensive empirical study of state right-to-bear-arms cases, but the consensus in the academic literature is that approximately twenty laws have been invalidated for violating

189.

Mosby v. Devine, 851 A.2d 1031, 1045 (R.I. 2004) (emphasis added).

190.

See People v. Williams, 377 N.E.2d 285, 286-87 (Ill. App. Ct. 1978).

191.

State v. Hamdan, 665 N.W.2d 785, 799 (Wis. 2003).

192.

Trinen v. City of Denver, 53 P.3d 754, 757 (Colo. Ct. App. 2002).

193.

State v. Dawson, 159 S.E.2d 1, 11 (N.C. 1968); State v. McAdams, 714 P.2d 1236, 1237 (Wyo. 1986); see also State v. Comeau, 448 N.W.2d 595, 598 (Neb. 1989). 194.

State v. Cole, 665 N.W.2d 328, 338 (Wis. 2003).

195.

Mosher v. City of Dayton, 358 N.E.2d 540, 543 (Ohio 1976). 30

SCRUTINIZING

THE

SECOND AMENDM ENT

this state constitutional right.196 But that number is somewhat deceptive; the majority of these decisions are from the nineteenth century, predating the rise of modern constitutionalism. Since World War II, the published opinions of the state courts197 include nine decisions invalidating laws (or the application of laws to specific individuals) on the basis of the right to bear arms. Of those nine, six were gun control laws. This is but a fraction of the hundreds, if not thousands, of gun control laws enacted at the state level during this period. Under the reasonable regulation standard, courts uphold all but the most arbitrary and excessive laws. In thirty-six of the forty-two states with individual right-to-bear-arms guarantees, no gun control measure has been invalidated in over half a century under those provisions. While there is a difference in focus between reasonable regulation and rational basis, in ordinary practice both standards are extremely deferential.198 Rational basis review has been characterized as “virtually none in fact” because nearly every law subject to it survives judicial scrutiny.199 Similarly, nearly all laws survive the reasonable regulation standard, thus giving wide latitude to legislatures. As the Illinois Supreme Court noted, the [*719] right to bear arms is subject to “substantial infringement.”200 Like rational basis, the reasonable regulation standard tends to be, more than anything else, shorthand for broad judicial deference. B. The Breadth of Deference The paucity of contemporary state court decisions invalidating laws on the basis of the state constitutional right to bear arms illustrates the extent of the deference afforded legislatures by the reasonable regulation standard. Courts affirm the constitutionality of nearly any type of gun control, uniformly upholding bans on possession of firearms by felons;201 total bans on the possession of particular types of firearms,

196.

See Todd Barnet, G U N “C O NTRO L ” L AW S V IO LATE TH E S EC O N D A M ENDM ENT , AND M AY L EAD TO H IGH ER C RIM E R ATES , 63 Mo. L. Rev. 155, 188 n.173 (1998); Kopel et al., T H REE C ITIES , supra note 181, at 1180 n.12 (1995). 197.

My research was limited to published opinions, which may undercount the actual number of cases invalidating gun laws. It is possible that some courts have invalidated laws without publishing opinions, but these cases are hard to uncover. In any event, one supposes that the vast majority of decisions invalidating state laws would be published, meaning that any undercount resulting from relying on published opinions alone would not be great. Nevertheless, one must recognize the possibility that other cases exist. 198.

State courts commonly use the rational basis and reasonable regulation language interchangeably. See, e.g., Robertson v. City of Denver, 874 P.2d 325, 331 (Colo. 1994) (requiring the law to be “reasonably related to a legitimate governmental interest such as the public health, safety, or welfare”); Trinen v. City of Denver, 53 P.3d 754, 757 (Colo. Ct. App. 2002) (referring to the “rational basis test”); City of Chicago v. Taylor, 774 N.E.2d 22, 29 (Ill. App. Ct. 2002) (requiring the law to be “rationally related to a legitimate governmental interest”). 199.

Gerald Gunther, I N S EARCH OF E VO LVING D OCTRINE ON A C H ANG ING C OURT : A M ODEL FOR A N EW ER E QUAL P RO TECTIO N , 86 Harv. L. Rev. 1, 8 (1972). 200.

Kalodimos v. Vill. of Morton Grove, 470 N.E.2d 266, 278 (Ill. 1984).

201.

E.g., Eary v. Commonwealth, 659 S.W.2d 198, 200 (Ky. 1983); State v. Comeau, 448 N.W.2d 595, 600 (Neb. 1989); State v. Smith, 571 A.2d 279, 280 (N.H. 1990); State v. Ricehill, 415 N.W.2d 481, 484 (N.D. 1987); Perito v. County of Brooke, 597 S.E.2d 311, 317, 321 (W. Va. 2004) (upholding felon gun ban even for a felon who has been pardoned). Some of the felon possession bans have also been challenged, unsuccessfully, under the Equal Protection Clause of the Federal Constitution. E.g., People v. Jackson, 646 N.E.2d 1299, 1304-05 (Ill. App. Ct. 1995). 31

SCRUTINIZING

THE

SECOND AMENDM ENT

including short-barreled (or “sawed-off”) shotguns,202 machine guns,203 stun guns,204 assault weapons,205 semiautomatic weapons,206 and even handguns;207 prohibitions on the carrying of concealed weapons; 208 bans on the transportation of loaded firearms;209 bars on the possession of firearms by individuals who are intoxicated210 and in places where alcohol is sold211 or served212 (including private [*720] residences);213 and criminal penalty enhancements for commission of a crime while possessing a firearm.214 If one looks closely at the reasoning of the state court decisions, the breadth of that deference becomes even clearer. As one court explained, “because arms pose an extraordinary threat to the safety and good order of society, the possession and use of arms is subject to an extraordinary degree of control.”215 Under the reasonable regulation standard, the state courts consistently uphold even vastly overinclusive laws. A few examples illustrate this phenomenon.

202.

E.g., Carson v. State, 247 S.E.2d 68, 72 (Ga. 1978); State v. Fennell, 382 S.E.2d 231, 233 (N.C. Ct. App. 1989); Ford v. State, 868 S.W.2d 875, 878 (Tex. Crim. App. 1993). 203.

E.g., Rinzler v. Carson, 262 So.2d 661, 666-67 (Fla. 1972); Morrison v. State, 339 S.W.2d 529-32 (Tex. Crim. App. 1960). 204.

People v. Smelter, 437 N.W.2d 341, 342 (Mich. Ct. App. 1989).

205.

E.g., Robertson v. City of Denver, 978 P.2d 156 (Colo. Ct. App. 1994); Benjamin v. Bailey, 662 A.2d 1226 (Conn. 1995); Arnold v. City of Cleveland, 616 N.E.2d 163, 166-73 (Ohio 1993). 206.

E.g., City of Cincinnati v. Langan, 640 N.E.2d 200, 205-06 (Ohio Ct. App. 1994).

207.

See Kalodimos v. Vill. of Morton Grove, 470 N.E.2d 266, 269-73 (Ill. 1984); City of Cleveland v. Turner, No. 36126, 1977 WL 201393, at 3-4 (Ohio Ct. App. Aug. 4, 1977) (upholding a ban on “any handgun of a .32 caliber or less and a barrel length less than 3 inches”). 208.

E.g., Klein v. Leis, 795 N.E.2d 633, 636-38 (Ohio 2003); State v. Cole, 665 N.W.2d 328 (Wis. 2003); State v. McAdams, 714 P.2d 1236 (Wyo. 1986). 209.

E.g., City of Cape Girardeau v. Joyce, 884 S.W.2d 33 (Mo. Ct. App. 1994); State v. Spencer, 876 P.2d 939, 941-42 (Wash. Ct. App. 1994); State ex rel. W. Va. Div. of Natural Res. v. Cline, 488 S.E.2d 376 (W. Va. 1997). 210.

E.g., People v. Garcia, 595 P.2d 228, 230 (Colo. 1979).

211.

E.g., State v. Lake, 918 P.2d 380, 382 (N.M. Ct. App. 1996).

212.

E.g., Second Amendment Found. v. City of Renton, 668 P.2d 596, 597-98 (Wash. Ct. App. 1983).

213.

E.g., Gibson v. State, 930 P.2d 1300 (Alaska Ct. App. 1997).

214.

E.g., State v. Blanchard, 776 So. 2d 1165 (La. 2001); State v. Schelin, 55 P.3d 632, 639 (Wash. 2002) (plurality opinion); State v. Daniel, 391 S.E.2d 90, 96-97 (W. Va. 1990). It is worthwhile to note that a defining characteristic of all the right-to-bear-arms decisions is the relatively small amount of argument courts offer to justify their determinations of reasonableness. Their reasoning is often only barely spelled out, raising the suspicion that they believe that little explanation is necessary. Such a process is typical of highly deferential review, where the conclusion that a law is valid is based primarily on the fact of deference rather than on a careful balancing of the interests. 215.

Kalodimos v. Vill. of Morton Grove, 470 N.E.2d 266, 269 (Ill. 1984) (internal quotations and citations

omitted). 32

SCRUTINIZING

THE

SECOND AMENDM ENT

1. Bans on Particular Types of Weapons State courts in the modern era have uniformly upheld state prohibitions on particular types of guns, without requiring any legislative fact-finding to support the bans. A Georgia sawed-off shotgun case, Carson v. State,216 is typical. “The question in each [right-to-bear-arms] case,” the court explained, is “whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts to a deprivation of the constitutional right.”217 The ban on sawed-off shotguns was “not arbitrary or unreasonable” because, the court explained, such weapons are “commonly used for criminal purposes.” 218 The court did not demand any evidence to back up the claim that sawed-off shotguns were “commonly used” by criminals, and did not require the government to show the prevalence of criminal use of sawed-off shotguns as compared to non-criminal use. Despite the overinclusiveness of the law, which applied to all law-abiding people, and the lack of supporting fact-finding, the ban was deemed reasonable. Bans on one type of firearm - so-called “assault weapons” - are also incredibly overinclusive, yet courts consistently uphold them against challenge under the state right to bear arms.219 Critics of these bans note that appearance notwithstanding, “assault weapons’ are functionally indistinguishable [*721] from normal-looking guns: they fire only one bullet with each press of the trigger and the bullets they fire are intermediate-sized and less powerful than the bullets from big game rifles.” 220 Hunting rifles are generally exempt from assault weapons bans “because they have wooden stocks instead of black plastic and are lacking pistol grips, bayonet lugs, flash suppressors, and other sinister features.” 221 If the underlying objective of gun control in general, and bans on assault weapons in particular, is public safety, it makes little sense for the government to ban certain dangerous-looking guns while allowing citizens to possess other, more powerful guns. Under any kind of heightened review that demands a tight fit between ends and means, the assault weapons bans would be problematic. Under a deferential standard, however, piecemeal legislation that leaves unregulated other types of activity posing the same or greater dangers usually is constitutionally permissible.

216.

247 S.E.2d 68 (Ga. 1978).

217.

Id. at 72 (quoting Strickland v. State, 72 S.E. 260, 263 (Ga. 1911)).

218.

Id. at 73.

219.

The exact type of weapons covered by the terminology of “assault weapons” varies, and the only unifying feature of these weapons is that they share “a military-style appearance.” David B. Kopel, C LUELESS : T H E M ISUSE O F BATF F IREARM S T RACING D ATA , 1999 L. Rev. M.S.U.-D.C.L. 171, 180. 220.

Id.; accord Bruce H. Kobayashi & Joseph E. Olson, I N R E 101 C ALIFORNIA S TREET : A L EG A L AN D E CO NO M IC A NALYS IS O F S TRICT L IABILITY F O R TH E M AN U FAC TU RE AN D S ALE OF “A SSAULT W EAPO N S ,” 8 Stan. L. & Pol’y Rev. 41, 43 (1997). 221.

Gerard E. Faber, Jr., Casenote, Silveira v. Lockyer: T H E N INTH C IRCUIT I G NO RES TH E R ELEVAN CE AN D I M PO RTANC E OF TH E S EC O N D A M E ND M EN T IN P OST -S EPTEM BER 11 TH A M E RIC A , 21 T.M. Cooley L. Rev. 75, 120 (2004). 33

SCRUTINIZING

THE

SECOND AMENDM ENT

2. Felon Possession Bans Bans on the possession of firearms by convicted felons are the most common type of gun control regulation, and every state court in the modern era to rule on the constitutionality of this type of law has held that they are reasonable. While some state courts rule that felons are categorically excluded from the right to bear arms222 - that is, they hold that felons do not even have a right which triggers any scrutiny - even where courts hold that felons are included within the scope of the state constitutional provisions, they uphold the bans as reasonable.223 Perhaps one should not be surprised that courts uphold felon possession bans in light of the unsavory characters who happen to be adversely affected by them. Nevertheless, such laws are wildly overinclusive; many felonies are not violent in the least, raising no particular suspicion that the convict is a threat to public safety. Perjury, securities law violations, embezzlement, obstruction of justice, and a host of other felonies do not indicate a propensity for dangerousness. It is hard to imagine how banning Martha Stewart or Enron’s Andrew Fastow from possessing a gun furthers public safety. Yet, despite this overinclusiveness, felon possession bans are consistently, and without exception, deemed reasonable measures of promoting public safety. [*722] 3. Licensing Laws The deference embodied by the reasonable regulation standard is further indicated by state court decisions upholding licensing laws that give government officials broad discretion to reject applicants. Many states have “shall issue” licensing, 224 under which the licensing official is mandated to issue a permit to carry concealed firearms to any qualified applicant. Yet even these laws sometimes condition the permit on vague, ambiguous qualifications subject to wide interpretation by licensing officials. Some states require issuance of a gun license if the applicant is of “good character and reputation” 225 or is a “suitable person”226 to possess a firearm - standards that are subjective, to say the least, and far too vague to survive strict scrutiny. Yet the state courts hold that such discretion is appropriate with the right to bear arms, reasoning that, if a person is indeed of good character or suitability, the issuance is required. As the Rhode Island Supreme Court wrote in upholding that state’s mandatory licensing law, “the finding that an applicant is a suitable person involves an exercise of discretion,” but “this leeway does not affect the requirement that the licensing authority shall issue a permit to a suitable person who meets the requirements set forth in the statute.” 227 Although the court was not ignorant of the burden placed on the individual by this licensing, it held that the law was reasonable because “if a license is refused on the ground that a person is not suitable, this determination is subject to review by this Court on certiorari.” 228 The mere availability of judicial review was

222.

E.g., State v. Hirsch, 114 P.3d 1104, 1135-36 (Or. 2005).

223.

E.g., People v. Blue, 544 P.2d 385, 390-91 (Colo. 1975); Rohrbaugh v. State, 607 S.E.2d 404, 413-14 (W. Va. 2004). 224.

Kopel, supra note 187, at 305 (2005).

225.

I N D . C O DE A N N . § 35-47-2-3 (e)(2) (West. Supp. 2006).

226.

R.I. G EN . L AW S § 11-47-11(a) (2002).

227.

Mosby v. Devine, 851 A.2d 1031, 1048 (R.I. 2004).

228.

Id. 34

SCRUTINIZING

THE

SECOND AMENDM ENT

enough to save the constitutionality of the law, despite conditioning the right to bear arms on subjective, ambiguous standards.229 C. The Limits of Reasonableness So under what circumstances will state courts hold that a gun control measure is unconstitutional? According to the state courts, a law is unconstitutional if it destroys or renders nugatory the right. Although no right-to-bear-arms jurisdiction has attempted to completely disarm its populace, state courts often note that total prohibitions on gun ownership go too far and will be invalidated. Even here, however, state courts allow felons to be completely barred from possessing firearms, and one imagines the state courts would reach the same conclusion about minors or the mentally disabled. Some destruction of the right through disarmament is still countenanced. Beyond a total ban, what runs afoul of the reasonable regulation test? [*723] As mentioned earlier, the state courts have invalidated gun control laws or their application to particular individuals on the basis of the state right to bear arms in only six published decisions over the past sixty years.230 We can break this down a bit more. The courts have invalidated only two types of gun control laws: total bans on the transportation of any firearms for any purpose whatsoever (three cases) and a permitting law (one case). In the other two cases, the courts upheld the underlying law but held that the law’s application to particular individuals violated the right to bear arms in the unusual circumstances of those controversies. Together, these six decisions provide some insight into the limits of the reasonable regulation standard’s deference. Courts will hold unconstitutional a gun control law (or its application to a particular individual) only in extreme circumstances where (a) the law or its application is so profoundly unfair as to be arbitrary and irrational, or (b) the law or its application is so restrictive as to be effectively a destruction or nullification of the right. These categories are not mutually exclusive and the reasoning in the decisions often overlaps both. In two modern-era cases, extremely unfair applications of otherwise valid laws have been held to violate the state constitutional right to bear arms. In State v. Rupe, the Washington Supreme Court reversed a death sentence because evidence was introduced at sentencing that the convict owned firearms.231 The prosecution had used that evidence to support the inference that the convict was a continuing threat to the community, even though the gun was kept at home and had not been involved in the underlying crime. “We see no relation between the fact that someone collects guns and the issue of whether they deserve the death sentence,” the court explained.232 Surely, this decision reaches the right conclusion: the exercise of a constitutional right unrelated to the crime in question cannot be reason to impose capital punishment. But this decision does not seriously challenge the constitutionality of gun control, only a particularly inappropriate form of prosecutorial overreaching.

229.

See Matthews v. State, 148 N.E.2d 334, 337 (Ind. 1958).

230.

This number excludes three Oregon decisions that invalidated complete bans on weapons other than guns. State v. Delgado, 692 P.2d 610 (Or. 1984) (possession of a switchblade); State v. Blocker, 630 P.2d 824 (Or. 1981) (possession of billy club in public); State v. Kessler, 614 P.2d 94 (Or. 1980) (possession of a billy club in the home). For decisions upholding restrictions on weapons other than firearms, see State v. Swanton, 629 P.2d 98 (Ariz. Ct. App. 1981) (ban on nunchakus); City of Cleveland Heights v. Allen, No. 41104, 1980 WL 354859 (Ohio Ct. App. June 26, 1980) (ban on switchblades); and City of Seattle v. M ontana, 919 P.2d 1218 (Wash. 1996) (ban on carrying “dangerous knives,” concealed or open). 231.

State v. Rupe, 683 P.2d 571, 597 (Wash. 1984) (en banc).

232.

Id. 35

SCRUTINIZING

THE

SECOND AMENDM ENT

In State v. Hamdan, the Wisconsin Supreme Court reversed the conviction of a liquor and grocery store owner who violated the state’s ban on concealed possession of a weapon by keeping a handgun hidden in his store.233 The court explicitly held that the concealed weapons ban was constitutional, but ruled that the unusual facts of this case made enforcement of [*724] that law against this store owner “unreasonable.”234 The court emphasized that the store was located in a very high-crime neighborhood of Milwaukee, that the store had been the target of four armed robberies in the previous six years (and in one of those robberies the assailant had held a loaded weapon to the owner’s head and pulled the trigger, but the gun misfired), and that two fatal shootings had occurred inside the store in recent years.235 In this situation, the court explained, prosecution of the store owner for keeping a concealed weapon in his store would be “practically nullifying the right” to use a firearm for security.236 The alternative proposed by the prosecution - that the store owner could keep his handgun on the counter in plain sight next to the register - was “impractical, unsettling, and possibly dangerous” and “fails the litmus test of common sense.”237 Three state court decisions have invalidated blanket bans on the transportation of firearms, loaded or not, anytime, anywhere, and for any purpose.238 Such broad laws, the courts reasoned, were so restrictive as to nullify the right. As the Kansas Supreme Court wrote, an individual had the right to own a gun, but under the blanket transportation ban he could not “lawfully transport a firearm from the place where he purchased it or had it repaired.”239 The restriction was such, the Colorado Supreme Court argued, that it “would prohibit gunsmiths, pawnbrokers and sporting goods stores from carrying on a substantial part of their business.” 240 Indeed, by the terms of the ordinances, an individual who moved residences had to leave the gun behind because the gun could not be packed away unloaded in a truck and moved to the new residence. According to a New Mexico decision, “the ordinance under consideration purports to completely prohibit the ‘right to bear arms.’ “ 241 One of the three decisions suggested that that the total transportation ban was not even the result of considered public policy at all, but was due to sloppy legislative drafting. 242 In light of the practical effects of a total transportation ban, these decisions are not terribly surprising. Nevertheless, a sign of the breadth of the reasonable regulation standard’s deference is that several other

233.

State v. Hamdan, 665 N.W.2d 785, 812 (Wis. 2003).

234.

Id. at 790.

235.

Id. at 791.

236.

Id. at 809.

237.

Id.

238.

City of Lakewood v. Pillow, 501 P.2d 744, 745 (Colo. 1972); City of Junction City v. Mevis, 601 P.2d 1145, 1152 (Kan. 1979); City of Las Vegas v. Moberg, 485 P.2d 737, 738 (N.M. Ct. App. 1971). 239.

Mevis, 601 P.2d at 1152.

240.

Pillow, 501 P.2d at 745.

241.

Moberg, 485 P.2d at 738.

242.

See Mevis, 601 P.2d at 1148-49 (recognizing that the ban on any transportation appeared to result from the potentially inadvertent omission of a provision in a prior gun control measure). 36

SCRUTINIZING

THE

SECOND AMENDM ENT

state court [*725] decisions uphold the same type of law. Two decisions out of Ohio243 and one from gun-friendly Texas244 find that total transportation bans are reasonable regulations on the right to bear arms largely because of the countervailing need for public safety. The last of the six contemporary cases - a West Virginia decision in which a basic license-to-carry law was invalidated 245 - is an outlier with little to teach us about the workings of the reasonable regulation standard. At least nine other states have considered the constitutionality of such laws and upheld them as reasonable.246 The reasoning of this isolated decision is thin, but as best as one can tell the court’s view was that no individual rights could be made to depend upon prior authorization or permitting by the state.247 When it comes to the right to bear arms, however, that view is far outside the mainstream. Taken together, the state court decisions indicate that the reasonable regulation standard is essentially a way for the courts to “stay in the game.” Although courts do not subject gun control to skeptical review, by employing a deferential standard the courts can oversee governmental regulation of the arms right and guard against extreme and excessive laws that effectively eliminate the core right to bear arms. Judicial invalidation is appropriate in extraordinary circumstances, such as when a law (or its application) works a miscarriage of justice as in Rupe and Hamdan. By maintaining a role in gun control law, the courts can serve as a check on the elected branches to insure that legislation does not eliminate the basic right. If gun control laws are excessive, the courts can break from their usual practice of deference and provide some relief for the affected individuals. Where a law is so broad as to make gun ownership - or at least gun purchasing and repair - illegal, the courts insure that the underlying right is more than illusory. The reasonable regulation standard enables the courts to act as a safety valve to counter governmental overreaching, but does not seriously interfere with legislative authority to regulate firearms in the interests of public safety. One could construe the handful of state court decisions invalidating laws (or their application) as examples of reasonableness “with bite.” When applying rational basis review, which is deferential like the reasonable regulation standard, the U.S. Supreme Court occasionally appears to give [*726] that test some teeth, scrutinizing challenged laws with a more skeptical eye than usual.248 Perhaps the state courts occasionally add teeth to the reasonable regulation standard. If so, however, the teeth soon fall out. After invalidating one law (or its application), the courts of that particular state quietly return to upholding firearms regulations. For example, subsequent to overturning a blanket ban on transportation of firearms, the

243.

State v. Enos, No. 8251, 1977 WL 198812 (Ohio Ct. App. Mar. 23, 1977) (upholding a city ordinance banning the carrying of a pistol); City of Akron v. Dixon, 303 N.E.2d 923 (Akron County Mun. Ct. 1972) (upholding law banning the carrying of a pistol). 244.

Collins v. State, 501 S.W.2d 876 (Tex. Crim. App. 1973) (upholding ban on the carrying of a pistol).

245.

State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988).

246.

Davis v. State, 146 So. 2d 892 (Fla. 1962); State v. Mendoza, 920 P.2d 357 (Haw. 1996); Matthews v. State, 148 N.E.2d 334 (Ind. 1958); Dozier v. State, 709 N.E.2d 27 (Ind. Ct. App. 1999); In re Atkinson, 291 N.W.2d 396 (Minn. 1980); Heidbrink v. Swope, 170 S.W.3d 13 (Mo. Ct. App. 2005); Mosher v. City of Dayton, 358 N.E.2d 540 (Ohio 1976); State v. Perry, 77 P.3d 313 (Or. 2003); Commonwealth v. Ray, 272 A.2d 275 (Pa. Super. Ct. 1970); Mosby v. Devine, 851 A.2d 1031 (R.I. 2004). 247.

See Buckner, 377 S.E.2d at 144-45 (citing W. Va. Const. art. III, § 22).

248.

See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (invalidating a ban on homosexual sodomy under rational basis review); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (invalidating zoning decision that barred the creation of a group home for the disabled). 37

SCRUTINIZING

THE

SECOND AMENDM ENT

Colorado courts upheld a felon possession ban,249 a prohibition on concealed carry,250 and a ban on possession by intoxicated persons.251 As one Colorado appellate court reminded, heightened review is inapplicable; the reasonable regulation standard is “essentially” the same as “the rational basis test.” 252 The same reversion to deference has occurred elsewhere; 253 indeed, none of the states whose decisions are discussed above have invalidated more than a single gun control law.254 Reasonable regulation with bite, then, is more of an isolated event than a lasting trend, and it appears that deference is an equilibrium position that is quickly reestablished.

V. R ECONSIDERING H EIGHTENED S ECOND A MENDMENT S CRUTINY The federal courts are certainly capable of bucking constitutional tradition and formally adopting strict scrutiny or some other variant of heightened review in Second Amendment cases, even if this has potentially undesirable consequences. Both United States v. Emerson255 and the Ashcroft MEMORANDUM 256 used at least some of the language of strict scrutiny, and a Supreme Court actively reinterpreting the Second Amendment might just decide that the arms right warrants constitutional law’s most exacting standard of review or perhaps some form of intermediate scrutiny. This Part considers what heightened review in the Second Amendment context might look like and argues that, while it might require the narrowing of some gun control laws, heightened review may ultimately devolve into a reasonable regulation-like standard still deferential to legislatures. [*727] A. Second Amendment Strict Scrutiny Applied One possibility is that strict scrutiny, which has been famously characterized as “ ‘strict’ in theory but fatal in fact,” 257 would lead to judicial invalidation of all or most gun control. Such a result would be unfortunate for the reasons discussed earlier: gun laws are generally motivated by legitimate public safety concerns rather than invidious purposes; the text of the Second Amendment arguably characterizes regulation as “necessary”; the history of the right to bear arms at both the federal and state level recognizes a constitutionally appropriate role for regulation, counseling against a presumption of unconstitutionality; 249.

People v. Blue, 544 P.2d 385 (Colo. 1975).

250.

Trinen v. City of Denver, 53 P.3d 754 (Colo. Ct. App. 2002).

251.

People v. Garcia, 595 P.2d 228 (Colo. 1979).

252.

Trinen, 53 P.3d at 757.

253.

See State v. Doile, 648 P.2d 262 (Kan. Ct. App. 1982) (upholding ban on concealed carry three years after the state supreme court invalidated a blanket transportation ban); State v. Taylor, 872 P.2d 53 (Wash. Ct. App. 1994) (upholding criminal penalty enhancement for possession of weapon during commission of a crime); State v. Thomas, 683 N.W.2d 497 (Wis. Ct. App. 2004) (upholding felon possession ban). 254.

Oregon is the only state in which the courts have invalidated more than one law under the right to bear arms over the past sixty years, and none of those decisions dealt with gun control. See supra note 230. 255.

279 F.3d 203 (5th Cir. 2001).

256.

Ashcroft M EM O RAN DU M , supra note 6.

257.

Gunther, supra note 199, at 8. 38

SCRUTINIZING

THE

SECOND AMENDM ENT

and vigorous scrutiny would present significant federalism, separation of powers, and institutional competence problems. Of the two prongs in strict scrutiny analysis, the fit question is likely to be the more significant in the context of the Second Amendment. Strict scrutiny’s first prong - the requirement of a compelling government interest - is likely to be found to be satisfied in nearly every case because the interest in public safety (or some variant of that goal, such as “preventing violence” or “reducing crime”) is so obviously important. As Calvin Massey asks, “surely [public safety] is a compelling interest. What could be of much higher priority?” 258 There may be some controversy over the first prong of strict scrutiny analysis, however, if courts accept the view of some in the gun-rights movement that firearms regulation is not really designed for purposes of public safety but rather as an expression of animus to gun culture.259 Yet, in light of the evident public safety concerns associated with gun possession, the gun-control-as-animus argument is, charitably, somewhat far-fetched. Strict scrutiny’s second prong - the requirement of narrow tailoring - is more likely to pose a hurdle for gun control. Again, Massey writes, “the degree of connection between this laudable objective and the means chosen to achieve it would likely prove to be the litigation battleground.” 260 The fit required by strict scrutiny could conceivably impact a number of firearms laws. A common concession of individual-rights theorists is to point to felon possession bans as the types of regulation that would remain constitutional even if the Second Amendment were reinterpreted.261 And if there were ever a type of constitutional litigant unlikely to gain the sympathy of judges, it [*728] would be convicted felons who want to bear dangerous weapons. Yet, as noted earlier, the commonplace bans on possession of firearms by felons are overinclusive because they permit even non-violent felons to be completely disarmed.262 By reaching felonies such as perjury and obstruction of justice, which do not really indicate the dangerousness of the convicted felon, these bans should be considered too broad in their reach to survive strict scrutiny. Assault weapon bans are also arguably too imprecise to satisfy the strict demands of heightened review because they exclude firearms of equal or greater danger to the citizenry.263 A recent Ninth Circuit case, Nordyke v. King, involved an overbroad law that could be called into question under strict scrutiny analysis: a county ordinance that barred the possession of firearms on all

258.

Massey, supra note 39, at 1132.

259.

Consider the skepticism of Justice Clarence Thom as on “assault weapons” bans. According to Justice Thomas, this terminology is devoid of any objective meaning, being only “a political term, developed by anti-gun publicists to expand the category of “assault rifles’ so as to allow an attack on as m any additional firearms as possible on the basis of an undefined “evil’ appearance.” Stenberg v. Carhart, 530 U.S. 914, 1001 n.16 (2000) (Thomas, J., dissenting). 260.

Massey, supra note 39, at 1132.

261.

Reynolds, supra note 7, at 19 (banning criminals from possessing weapons would be constitutional under individual rights reading). 262.

See supra text accompanying notes 222-224.

263.

See supra text accompanying notes 219-221. 39

SCRUTINIZING

THE

SECOND AMENDM ENT

county property.264 The ban had the effect of preventing a gun show from being held on county lands.265 The law restricted the rights of law-abiding individuals without an established factual finding that a threat to public safety existed. This is not to say that a ban on firearms on county property is without any public safety function; the gun shows held on county property are believed to be where many criminals acquire their guns because the federal law requiring background checks before other gun purchases does not apply.266 Yet, there are less restrictive alternatives to a complete ban. States could require instead that background checks be mandatory for these gun shows (under state law) or limit access to such shows to people with clean criminal records. Strict scrutiny’s fit requirement might require the narrowing of laws such as the felon possession ban, assault weapons laws, county property bans, and some other forms of gun control. Yet strict scrutiny might still leave the core of modern gun control standing - or, indeed, might even be effectively watered down over time such that it looks much like the reasonable regulation standard. To find support for this hypothesis, one need only look to the few Second Amendment cases in which litigants argued for strict scrutiny and the federal courts, assuming arguendo that strict scrutiny might apply, considered the constitutionality of gun control under that standard. Both Gillespie v. City of Indianapolis 267 and United States v. Miles 268 involved constitutional challenges to the federal ban on possession of firearms by persons convicted of domestic violence or subject to a restraining order in a domestic violence case. In both cases, the judges first rejected the argument [*729] that the Second Amendment protected the individual right to bear arms and that strict scrutiny applied. But then, assuming that the amendment did protect an individual right and that strict scrutiny was appropriate, the judges analyzed the challenged law and upheld it. The courts ruled the government’s interest in “preventing family violence”269 was compelling. Moreover, as the Gillespie court wrote, “the statute is narrowly tailored in that it applies only to persons who have been convicted previously in a court of law of a crime of domestic violence, and Congress cited many statistics linking the presence of firearms to the substantial number of deaths resulting from domestic violence disputes.”270 According to Miles, the law would “easily survive strict scrutiny.” 271 So much for “fatal in fact.” In Emerson, in which the Fifth Circuit Court of Appeals unambiguously committed to the position that the Second Amendment guaranteed an individual right and indicated that laws burdening that right must

264.

Nordyke v. King, 319 F.3d 1185, 1187 (9th Cir. 2003). The Ninth Circuit held that the gun show promoter lacked standing to challenge the ban in federal court because, under the collective rights view of the Second Amendment, only states had cognizable legal harm. Id. at 1191-92. 265.

Id. at 1188.

266.

See Bureau of Alcohol, Tobacco & Firearms, U.S. Dep’t of Treas., G U N S H O W S : B RADY C H E CK S AN D C RIM E G U N T RACES 26 (Jan. 1999), available at http://www.atf.treas.gov/ pub/treas_pub/gun_show.pdf. 267.

13 F. Supp. 2d 811, 814 (S.D. Ind. 1998).

268.

238 F. Supp. 2d 297, 298 (D. Me. 2002).

269.

Id. at 303; see also Gillespie, 13 F. Supp. 2d at 827.

270.

Gillespie, 13 F. Supp. 2d at 827.

271.

Miles, 238 F. Supp. 2d at 303 (emphasis added). 40

SCRUTINIZING

THE

SECOND AMENDM ENT

be “narrowly tailored,” 272 the court still upheld the law challenged in that case. That law - the same federal ban on possession by persons subject to a restraining order on the basis of past domestic violence that was the subject of Gillespie and Miles - applied to the challenger in Emerson even though there was no “express judicial finding that the defendant poses a credible threat to the physical safety of his spouse or child.”273 While a strong narrow tailoring requirement might actually require such a showing - courts often require evidence to support the government’s claim that the underlying policy is properly tailored 274 - the court allowed this law to stand. Perhaps even more telling is the fate of other post-Emerson challenges to gun control in the Fifth Circuit. There have been at least three such decisions, and in each one the challenged law was upheld despite the apparent requirement of narrow tailoring. In United States v. Darrington, the Fifth Circuit upheld the federal ban on felon possession - a law that should be undermined by a vigorous fit requirement.275 In United States v. Patterson, the court upheld the federal law barring possession of a firearm by a user of a controlled substance.276 And in United States v. Herrera,277 the court upheld the same law at issue in Patterson over a dissenting opinion that argued the law was overbroad: [*730] Given that there are more than 150 substances in the list of controlled substances in the Controlled Substances Act ... and that each of these substances has widely varying and different effects on an individual, it would seem elementary ... that Congress must specify the particular substances whose use may cause particular damages and injuries to an individual sufficient to deprive that individual of his Constitutional Rights under the Second Amendment.278 The dissent continued, “to have a narrowly tailored restriction on Second Amendment rights, Congress must specify the frequency of use of a controlled substance and the time period during which such a use will be deemed to have a continuing effect on an individual.” 279 Yet the majority disagreed and was willing to uphold the conviction. Even proponents of heightened review for the Second Amendment right to bear arms reject the notion that all, or even most, forms of gun control and other weapons regulation would be unconstitutional. Nelson Lund, for example, argues that even if heightened review is applied, “most existing forms of gun 272.

United States v. Emerson, 270 F.3d 203, 261 (5th Cir. 2001).

273.

Id. at 213.

274.

E.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 507 (1989) (requiring evidentiary showing of past discrimination to justify a race-based affirmative action policy). 275.

351 F.3d 632, 633-34 (5th Cir. 2003).

276.

431 F.3d 832, 835-36 (5th Cir. 2005) (en banc) (per curiam) (deciding the case on the grounds of evidentiary sufficiency without addressing challenges to the law). 277.

313 F.3d 882 (5th Cir. 2002).

278.

Id. at 889 (DeMoss, J., dissenting).

279.

Id. 41

SCRUTINIZING

THE

SECOND AMENDM ENT

control would survive such scrutiny because they are sufficiently well tailored to achieve sufficiently worthy government purposes.” 280 Massey, who argues for “semi-strict scrutiny,” contends that “[a] great deal of regulation of such an individual right can, and should, be permitted.”281 According to Donald Dowd, “the reason gun control legislation would survive even [strict scrutiny] is the overwhelming public safety concern. In the context of this strict scrutiny, the Court would most likely find that public safety constitutes a compelling state interest, and legislation would pass muster on this count.” 282 Thus it is fair to predict that strict scrutiny in the context of gun regulation will not be overwhelmingly fatal and might even permit most, if not all, gun control laws to survive judicial review. In that case, many of the reasons that counsel against applying strict scrutiny are mitigated. Still, there would be unwelcome costs to applying strict scrutiny to gun laws if that standard lacks the vigor with which it is usually associated. Writing about a different area of law, Eugene Volokh has articulated sound reasons for courts to avoid applying what they call strict scrutiny to areas of law where the standard is truly not very strict. First, there is a “risk of confusion” as some courts might “import the strongly rights-protective traditional strict scrutiny doctrine” into this other area of law where it does not belong 283 - here, right-to-bear-arms cases. Second, “courts might export the watered-down” version of strict scrutiny from one area “into other cases, or, less directly, weaken strict [*731] scrutiny in these other cases by diluting its formerly forceful symbolism.” 284 Third, “promising strict scrutiny, with its historical connotation of extreme skepticism concerning the government action, but delivering something considerably weaker diminishes courts’ credibility.” 285 To this we might add that legislatures may be hesitant to undertake their duty to enhance public safety by regulating weapons out of fear that strict scrutiny will in fact be fatal. Even if legislatures know that some laws survive Second Amendment strict scrutiny, the expected benefits of gun control would be discounted by the probability of judicial invalidation. If the review is not rigorous, courts should not claim to apply strict scrutiny. B. A Brief Note on Intermediate Scrutiny The Supreme Court could reject strict scrutiny and adopt some variation on heightened review, such as an intermediate standard that requires only important governmental ends (instead of compelling ones) and a substantial fit (in lieu of a perfect one). An intermediate level of review, however, would likely lead to only marginally different results than either strict scrutiny or even the reasonable regulation standard. First, the governmental ends prong of the analysis would not change: public safety is already a compelling government interest sufficient to satisfy even strict scrutiny and thus would easily satisfy intermediate scrutiny. Second, with regard to means, there may be little distinction in practice between “narrow tailoring” and something like “substantial relationship.” The fit is never going to be very precise in gun control, and

280.

Lund, supra note 137, at 189.

281.

Massey, supra note 4, at 587.

282.

Dowd, supra note 47, at 111.

283.

Eugene Volokh, A C O M M O N -L AW M ODEL FOR R ELIGIOUS E XEM P TIO N S , 46 UCLA L. Rev. 1465, 1500 (1999).

284.

Id.; see also Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 888 (1990) (“Watering [strict scrutiny] down [in religious exemption cases] would subvert its rigor in the other fields where it is applied ... .”). 285.

Volokh, supra note 283, at 1501. 42

SCRUTINIZING

THE

SECOND AMENDM ENT

courts will need to accept a large measure of overinclusiveness and underinclusiveness no matter what formal standard is applied. No law of any sort will make the public perfectly safe, and any gun control measure could go further to make people more safe from harm from guns. A law requiring safe storage could do more and require safety locks; a law requiring licensing for concealed carry could go further and ban laser sights and silencers. As Dowd recognizes, “most legislation will assert broad safety concerns and broad gun control measures to match, covering both ‘good’ and ‘bad’ gun possessors and ‘good’ and ‘bad’ guns. Such legislation cannot be narrowly tailored to reach only the bad people who kill with their innocent guns.” 286 Moreover, due to the intensity of public opinion on guns, legislation is inevitably the result of hard-fought compromise in the political branches. To expect such legislation to reflect a tight fit between ends and means is unrealistic. Given that most laws might be expected to survive even strict scrutiny, it is hard to imagine which cases would come out differently under an intermediate standard. If the difference between the expected outcomes under [*732] reasonable regulation and strict scrutiny is already small, there is not much of a baby to split. Intermediate scrutiny might in time simply morph into one of the extreme standards, becoming either deferential reasonableness review or slightly more demanding strict scrutiny. Indeed, one might argue that the handful of federal decisions from the Fifth Circuit purporting to apply some aspect of strict scrutiny are really applying nothing more rigorous than intermediate scrutiny already. Certainly, those cases do not require a particularly close fit between ends and means. The state cases also support the inference that intermediate scrutiny will ultimately prove to be little more than the reasonable regulation standard. The small handful of decisions invalidating gun laws (or their application to particular individuals) might arguably be seen as applying a form of heightened scrutiny. As noted, however, such judicial skepticism does not last long, and courts, in the end, fall back to their usual stance of deference to legislatures when it comes to matters of public safety and firearms. If deferential review is, as one might suspect from this pattern, an equilibrium point, then Second Amendment heightened review seems likely to end up in the same place: reasonable regulations on the right to bear arms will be upheld as constitutionally permissible.

286.

Dowd, supra note 47, at 111. 43

SCRUTINIZING

THE

SECOND AMENDM ENT

C ONCLUSION In an opinion in the Nordyke case, Ninth Circuit Judge Ronald Gould strongly endorsed the view that the Second Amendment protected an individual right to bear arms.287 The standard he would choose? “An individual Second Amendment right” should be “subject to reasonable government regulation.” 288 The state experience indicates that the right to bear arms in the Second Amendment is a good candidate for the test recommended by Judge Gould. This test is pervasive in American constitutionalism, uniformly applied at the state level to govern the dozens of state guarantees of the individual right to bear arms. Under this standard, the vast majority of laws burdening a Second Amendment right to bear arms are likely to withstand judicial scrutiny. Laws that effectively abolish the right to possess firearms or are applied in extraordinary factual circumstances that give rise to a sense of profound unfairness may be called into question. But outside of those narrow areas, an individual right to bear arms has not traditionally interfered with gun control. The Second Amendment may receive a second look, yet the standard of review may prove much more important to the future of gun control than the substantive construction of the underlying right. Few laws are likely to run afoul of whatever right - individual or collective - the Second Amendment is read to protect.289 [*733] Some individual-rights scholars appear to recognize this fact and support the individual-rights reading in large part for its symbolic or expressive effect. According to Calvin Massey, “recognition of a limited individual right to gun possession, however, would allay the fear of gun enthusiasts (or shooters, as they generally prefer to be called) that the ultimate aim of gun control advocates is to stamp out private gun possession.” 290 To be sure, if the Second Amendment is interpreted to guarantee an individual right to bear arms, then a move to a British-style society with almost no lawful gun possession would be unconstitutional. Yet such a move is not anywhere near being politically feasible in America anyway. But if the forty-two states with individual-arms-right guarantees are a sign, gun enthusiasts can expect little more than a symbolic victory from a revised Second Amendment. In the American constitutional tradition, best illustrated by state constitutional doctrine when it comes to the right to bear arms, reasonable regulation has long been considered appropriate. This history of deferential review under the reasonable regulation standard is as good an indication as any that, even if the Second Amendment is reinterpreted to protect an individual right, almost all gun control laws are likely to remain constitutional.

287.

Nordyke v. King, 319 F.3d 1185, 1192-93 (9th Cir. 2003) (Gould, J., concurring).

288.

Id. at 1197.

289.

Cf. Chemerinsky, supra note 10, at 484-85 (“It is easy to im agine a court accepting the individual rights approach and then upholding every likely gun restriction ... . Put another way, the debate between the individual and collective rights approaches to the Second Amendment might be completely irrelevant to resolving the legal issues actually likely to arise and confront courts.”). 290.

Massey, supra note 4, at 587; see also Reynolds, supra note 7. 44

THE BATTLE FOR TRUTH: THEORY AND EXPERIMENTS REGARDING COMPETITION AND THE ADVERSARIAL SYSTEM Cheryl Boudreau/[email protected] Mathew D. McCubbins/[email protected] University of San Diego School of Law Legal Studies Research Paper Series Research Paper No. 07-63 September 2006 University of California, San Diego Department of Political Science 9500 Gilman Drive, Mail Code 0521 La Jolla, CA 92093-0521 Phone: (858) 534-3733 We thank the National Science Foundation, Grant #0616904 and the Chancellor’s Associates Chair VIII at UC, San Diego for providing financial support for these experiments. “The adversary system is based on the assumption that the truth of a controversy will best be arrived at by granting the competing parties, with the help of an advocate, an opportunity to fight as hard as possible.” --Johnston and Lufrano 2002, p. 147 During criminal and civil trials, jurors must make decisions for which they are not fully informed. For example, jurors must decide whether a defendant is guilty or innocent, whether a party to a civil suit is liable or not, whether expert witnesses and scientific evidence are credible, and so on. Because jurors frequently lack the legal and scientific sophistication that is required to make informed choices about these matters (Frank 1945; Elwork, Sales, and Alfini 1977; Fisher 20002001; Lilly 2001), they must often rely upon the statements of competing lawyers.1 Given jurors’ reliance on the statements of lawyers, many scholars question whether our adversarial legal system (which pits two competing lawyers against one another) is the best method of eliciting the truth and enabling jurors to learn. On the one hand, many scholars fear that our adversarial system does not necessarily reveal truthful information and allow jurors to make informed decisions (Pound 1906; Frank 1945; Tullock 1975, 1980; Bundy and Elhauge 1991; Kaplow and Shavell 1989). Despite these fears, many scholars suggest that there exists something like an invisible hand in the competition for ideas; that is, they suggest that competition between two

1

For a discussion of other heuristics that uninformed jurors rely upon when making their decisions, see Boudreau (2006), Lupia and McCubbins (1998), Petty and Cacioppo (1984), and Chaiken (1980). 1

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

lawyers in a courtroom will in fact lead to the revelation of truthful information (Milgrom and Roberts 1986; Lipman and Seppi 1995; Froeb and Kobayashi 1996). What concerns us here is whether competition between lawyers, in and of itself, leads to truth-telling by lawyers and enables jurors to discern and use the truth when making decisions. For purposes of simplicity and realism, we examine the case where the lawyers have diametrically opposed interests, so that one person’s gains are the other’s losses. To this end, we provide a formal model of a static communication game between two competing lawyers and a juror,2 and we then test our model’s predictions experimentally. The result that emerges from this simple communication game and in our experiments is quite surprising and contradicts much of the existing literature, which extols the virtues of competition (Milgrom and Roberts 1986; Froeb and Kobayashi 1996; Lipman and Seppi 1995; Freedman 1975). Specifically, we find that competition 1) does not necessarily induce both lawyers to send truthful signals to the juror and 2) prevents the juror from being able to learn from the lawyers’ signals. In this way, the model and experiments suggest that, rather than leading to the revelation of truthful information, competition (absent any other institutional constraints that might be imposed upon the lawyers) instead creates a situation in which the juror cannot trust or learn from the lawyers’ signals. Following Lupia and McCubbins (1998), we next extend our basic model and our experiments to incorporate two institutions that have direct analogues in the legal process: penalties for lying and the threat of verification. For example, in the courtroom, jurors know that lawyers and their witnesses face penalties (in the form of monetary sanctions or a loss of reputation) if they lie during a trial. Similarly, lawyers’ closing arguments and crossexaminations (which are forms of verification) often reveal when lawyers and their witnesses have made false statements. The results of these extensions to our basic model (and their corresponding experiments) demonstrate that when competition is coupled with one of these institutions, it induces both lawyers to send truthful signals to the juror and enables the juror to learn from these signals and make a correct choice. This paper proceeds as follows. We begin by describing our basic model of competition and by defining the information sets for the two competing lawyers and the juror. We then prove that competition, by itself, does not necessarily lead to the revelation of truthful information and does not allow the juror to learn from the lawyers’ signals. We next present two extensions to our basic model (one that imposes a penalty for lying upon the two competing lawyers and one that imposes a threat of verification upon the two competing lawyers), and we demonstrate the conditions under which these institutions induce both lawyers to make truthful statements to the juror and, therefore, enable the juror to make a correct choice. We then describe the experiments that we use to test our model’s predictions, and we present our experimental results, which confirm these predictions. We conclude with a discussion of how competition must be coupled with one or more institutions in order to lead to the revelation of truthful information and to enable jurors to learn from competing lawyers.

2

For an example of a dynamic, multi-stage communication game, see Sobel (1985). 2

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

The Debate: Does our Adversarial Legal System Reveal the Truth? The Benefits of our Adversarial System Much of the literature on our adversarial legal system addresses the question: Does competition between two lawyers expose the truth and enable jurors to learn what they need to know? On the one hand, many scholars answer this question in the affirmative, suggesting that competition between lawyers leads to the revelation of truthful information and, therefore, enables jurors to make informed decisions (Milgrom and Roberts 1986; Froeb and Kobayashi 1996; Lipman and Seppi 1995). Indeed, ever since Madison (1788) emphasized that “ambition must be made to counteract ambition,” scholars and institutional designers alike have sought to incorporate competitive practices into our legal system and those abroad. The Conditionality of our Adversarial System In contrast to those who emphasize the benefits of our adversarial system, many scholars caution that competition is beneficial only under certain conditions and that it may even prevent jurors from learning the truth (Pound 1906; Frank 1945; Tullock 1975, 1980; Frankel 1980; Bundy and Elhauge 1991; Kaplow and Shavell 1989; Shin 1998; Posner 1999; Froeb and Kobayashi 2001; Daughety and Reinganum 2000; Lupia and McCubbins 1994, 1998). For example, Kaplow and Shavell (1989) emphasize that one lawyer may prevent certain types of information from being revealed to the competing lawyer or to the court, and Daughety and Reinganum (2000) note that adversarial legal processes often lead to biased trial outcomes. In a similar manner, Lupia and McCubbins (1994, 1998) emphasize that competition only leads to the revelation of truthful information and promotes learning if the competing lawyer is both knowledgeable and trustworthy. It is this body of research on the conditionality of our adversarial system that we build upon in this study. Specifically, we draw upon the insights of Lupia and McCubbins (1998), and we demonstrate both formally and experimentally that competition between two lawyers does not induce truthful statements or promote learning. Indeed, only when competition is combined with one or more institutions (such as a penalty for lying or a threat of verification) does it lead both lawyers to make truthful statements and allow the juror to trust these statements, learn from them, and make a correct choice. The Basic Model: We model competition as a game between three players: lawyer 1 (denoted L1), lawyer 2 (denoted L2), and the juror (denoted j). The juror chooses one of two alternatives, which are called a and b, and the lawyers each send a signal to the juror about his choice. The extensive form of this game is shown in Figure 1. [Figure 1 about here] The sequence of events in this game is as follows. First, a move by Nature determines the “state of the world.” We denote this choice as nc 0 {correct, incorrect}. This choice determines whether option a is the correct choice or the incorrect choice for the juror. Nature chooses the state of the world nc = correct with probability c 0 [0, 1] and the state of the world nc = incorrect with probability 1 – c. If nc = correct, then a is the correct choice (and b is the incorrect choice) for the 3

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

juror. Similarly, if nc = incorrect, then a is the incorrect choice (and b is the correct choice) for the juror. Note also that both lawyer 1 and lawyer 2 observe nc, while the juror does not. The juror does, however, have prior beliefs about the “state of the world,” which are represented by the probability c. After the move by Nature, the game between the two lawyers and the juror begins. First, lawyer 1 sends a signal to the juror. We denote this signal s1 0 {A, B}. If s1 = A, then lawyer 1 states that option a is the correct choice (and that option b is the incorrect choice) for the juror. If s1 = B, then lawyer 1 states that option b is the correct choice (and that option a is the incorrect choice) for the juror.3 Lawyer 1 selects which of these two signals to send and may either lie or tell the truth. Additionally, lawyer 1 is assumed to have common interests with the juror,4 the implications of which we will discuss below.5 After lawyer 1 sends his signal, lawyer 2 observes lawyer 1's signal and then sends a signal of his own to the juror. We denote lawyer 2's signal as s2 0 {a, b}. If s2 = a, then lawyer 2 states that option a is the correct choice (and that option b is the incorrect choice) for the juror. If s2 = b, then lawyer 2 states that option b is the correct choice (and that option a is the incorrect choice) for the juror. As was true for lawyer 1, lawyer 2 selects which of these two signals to send and may either lie or tell the truth. Further, lawyer 2 is assumed to have conflicting interests with the juror, the implications of which we will also discuss below. Upon hearing both of the signals that lawyer 1 and lawyer 2 send, the juror then chooses a or b. By assumption, the juror does not know whether it is lawyer 1 or lawyer 2 who has common interests with him; rather, the juror has uninformative prior beliefs about the lawyers’ interests. Specifically, the juror believes that there is a 50% chance that lawyer 1 has common interests with him (and that lawyer 2 has conflicting interests with him) and that there is a 50% chance that lawyer 2 has common interests with him (and that lawyer 1 has conflicting interests with him).6 Although

3

We follow Calvert (1985) and m any others by modeling the lawyers’ signals in this way. Indeed, Calvert (1985, p. 534) notes that the basic nature of a speaker’s advice is a “distillation of complex reality into a simple recommendation.” 4

There are many interesting models of the effects that varying interests between a lawyer and a juror have on incentives and behavior. For three examples, see Crawford and Sobel (1982), Austen-Smith (1990), and Lupia and McCubbins (1998). 5

Note that we could also m odel the interests between the lawyers and the juror by adding an additional m ove of Nature to the game. Specifically, Nature could select, with some probability, whether lawyer 1 or lawyer 2 has common interests with the juror. 6

We model the juror’s prior beliefs in this way because we are interested in analyzing the conditions under which jurors can learn from competing lawyers who they do not know. This aspect of our model corresponds to real world trials, where jurors often do not know which lawyer’s interests are aligned with their own. That said, we could, of course, incorporate into our model more informative prior beliefs for the juror. Indeed, if we were interested in analyzing the conditions under which jurors can learn from competing lawyers who they know something about, we could assume, for example, that the juror believes that there 4

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

the juror does not know the interests of the two lawyers, he does know that lawyer 1 and lawyer 2 are adversaries, and he also knows the order in which the two lawyers send their signals (i.e. if the juror obtains the signal A, b, then he knows that lawyer 1 sent the signal A and that lawyer 2 sent the signal b). After the juror chooses a or b, the game ends, and all players receive their utility payoffs. Payoffs for the players are determined by three parameters: nc, the juror’s choice of a or b, and the assumed interests of lawyer 1 and lawyer 2. As for the juror, if nc = correct and he chooses a, then he receives a payoff of 1. However, if nc = correct and he chooses b, then he receives a payoff of –1. Similarly, if nc = incorrect and the juror chooses a, then the juror earns a payoff of –1, and if nc = incorrect and the juror chooses b, then the juror earns a payoff of 1. Payoffs are described in Figure 1. As mentioned above, lawyer 1 and lawyer 2's payoffs depend upon whether they have common or conflicting interests with the juror and whether the juror earns positive or negative utility. Specifically, if the juror earns a payoff of 1, then lawyer 1 (who is assumed to have common interests with the juror) also earns a payoff of 1. Similarly, if the juror earns a payoff of –1, then lawyer 1 also earns a payoff of –1. On the other hand, lawyer 2 (who is assumed to have conflicting interests with the juror) earns a payoff of –1 when the juror earns a payoff of 1, and lawyer 2 earns a payoff of 1 when the juror earns a payoff of –1. In this way, lawyer 1's incentives are aligned with those of the juror, while lawyer 2's incentives are not. Note also that these payoffs induce zero sum competition between the two lawyers (i.e. when one lawyer gains 1 util, the other lawyer loses 1 util). Defining Information Sets and Terms: We use the vector BL1 to denote lawyer 1's component of strategy profile B. BL1 has two elements, one for each of lawyer 1's information sets hL1 0 {h1, h2}. These information sets, as well as those of the other players, are shown in Figure 1. Note that lawyer 1's information sets are completely determined by Nature’s choice. Further, each element B1(s1; hi), where i = 1 or 2, is the probability that lawyer 1 signals s1 0 {A, B} if he is at information set hi. These probabilities must sum to 1 for each information set. We use the vector BL2 to denote lawyer 2's component of B. BL2 has four elements, one for each of lawyer 2's information sets hL2 0 {h3, h4, h5, h6}. Note that lawyer 2's information sets are determined by Nature’s choice, as well as by lawyer 1's choice. Note also that we define each element BL2(s2; hi), where i = 3…6, as the probability that lawyer 2 signals s2 0 {a, b} if he is at information set hi. These probabilities also must sum to 1 for each information set. As for the juror, we use the vector Bj to denote the juror’s component of B. Bj has four elements, one for each of the juror’s information sets hj 0 {h7, h8, h9, h10}. The juror’s information

is a 70% chance that lawyer 2 has conflicting interests with him. Because the two lawyers in our model are adversaries, this means that the juror also believes that there is a 70% chance that lawyer 1 has common interests with him. Knowing this, the juror should ignore lawyer 2's statement, pay attention to lawyer 1's statement, and base his choice upon it (for further discussion, see Lupia and McCubbins 1998). 5

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

sets are determined by lawyer 1's choice and by lawyer 2's choice; that is, the juror observes an ordered signal from the two lawyers (i.e. he observes the signal A, then b; A, then a; B, then a; or B, then b), but he is uncertain about Nature’s choice. Note that we define each element Bj(a; s1, s2) as the probability that the juror chooses a after observing the signals s1 0 {A, B} and s2 0 {a, b}. Similarly, we define 1 – Bj(a; s1, s2) as the probability that the juror chooses b after observing the same signal. These probabilities also must sum to 1 for each information set. Uninformative Equilibria: This basic model yields an interesting (and perhaps surprising) result: Namely, competition does not necessarily induce both lawyers to send truthful signals to the juror, and it also prevents the juror from being able to learn from the lawyers’ signals. Specifically, because the juror has uninformative prior beliefs about whether lawyer 1 or lawyer 2 shares common interests with him, he cannot know which (if any) lawyer sent a truthful signal about whether a or b is the correct choice. For example, if the juror obtains the signal A, b, he does not know whether lawyer 1 (who signaled A) or lawyer 2 (who signaled b) has common interests with him; therefore, he cannot learn anything from this signal. Similarly, if the juror obtains the signal A, a, he still cannot learn from this signal because he does not know whether both lawyer 1 and lawyer 2 sent truthful signals or whether both lawyer 1 and lawyer 2 sent false signals. Because much research in cognitive science demonstrates that people ignore stimuli that they do not expect to help them with their decisions (for a survey of this body of literature, see Lupia and McCubbins 1998),7 we assume that the juror will ignore the lawyers’ signals and base his choice upon his prior beliefs about the state of the world, c. Given that the juror ignores the lawyers’ signals, both lawyer 1 and lawyer 2 will, in equilibrium, send either a truthful signal or a false signal to the juror. Indeed, because both lawyers know that the juror will ignore their signals, they can send either a truthful signal or a false signal to the juror and not have an incentive to deviate from the signal they chose to send. Therefore, there exist multiple equilibria to this game: In one equilibrium, both lawyer 1 and lawyer 2 send false signals and the juror bases his choice upon his prior beliefs, c. In another equilibrium, lawyer 1 sends a truthful signal, lawyer 2 sends a false signal, and the juror bases his choice upon c. In still another equilibrium, lawyer 1 sends a false signal, lawyer 2 sends a truthful signal, and the juror bases his choice upon c, and in yet another equilibrium, both lawyer 1 and lawyer 2 send truthful signals and the juror bases his choice upon c.

Summarizing this body of research in cognitive science, Lupia and McCubbins (1998, p. 50) emphasize that “[P]eople ignore stimuli that they do not expect to facilitate reasoned choices…[P]ersuasion requires the [juror] to believe that the lawyer’s statement will help her avoid costly mistakes. That is, persuasion does not occur if the [juror] believes that the lawyer is likely to have conflicting interests. If, however, the [juror] believes that common interests are more likely, then persuasion is possible.” Because the juror in our model does not know which lawyer is more likely to have common interests with him, our assumption that the juror ignores the lawyers’ statements (and that persuasion does not occur) is innocuous. 7

6

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

More formally, the equilibrium strategies for each player can be stated as follows: Juror’s equilibrium strategies:

Bj(a; A, b) = 1 if c > 0.5; otherwise Bj(a; A, b) = 0 Bj(a; B, a) = 1 if c > 0.5; otherwise Bj(a; B, a) = 0 Bj(a; A, a) = 1 if c > 0.5; otherwise Bj(a; A, a) = 0 Bj(a; B, b) = 1 if c > 0.5; otherwise Bj(a; B, b) = 0 Lawyer 1's equilibrium strategies:

BL1(A; h1) = 1; BL1(A; h2) = 1 BL1(A; h1) = 1; BL1(A; h2) = 0 BL1(A; h1) = 0; BL1(A; h2) = 1 BL1(A; h1) = 0; BL1(A; h2) = 0 Lawyer 2's equilibrium strategies:

BL2(a; h3) = 0; BL2(a; h4) = 0; BL2(a; h5) = 0; BL2(a; h6) = 1 BL2(a; h3) = 0; BL2(a; h4) = 1; BL2(a; h5) = 1; BL2(a; h6) = 1 BL2(a; h3) = 0; BL2(a; h4) = 0; BL2(a; h5) = 1; BL2(a; h6) = 1 BL2(a; h3) = 0; BL2(a; h4) = 1; BL2(a; h5) = 0; BL2(a; h6) = 1 BL2(a; h3) = 1; BL2(a; h4) = 0; BL2(a; h5) = 0; BL2(a; h6) = 1 BL2(a; h3) = 1; BL2(a; h4) = 1; BL2(a; h5) = 1; BL2(a; h6) = 1 BL2(a; h3) = 1; BL2(a; h4) = 0; BL2(a; h5) = 1; BL2(a; h6) = 1 BL2(a; h3) = 1; BL2(a; h4) = 1; BL2(a; h5) = 0; BL2(a; h6) = 1 BL2(a; h3) = 1; BL2(a; h4) = 0; BL2(a; h5) = 0; BL2(a; h6) = 0 BL2(a; h3) = 1; BL2(a; h4) = 1; BL2(a; h5) = 1; BL2(a; h6) = 0 BL2(a; h3) = 1; BL2(a; h4) = 0; BL2(a; h5) = 1; BL2(a; h6) = 0 BL2(a; h3) = 1; BL2(a; h4) = 1; BL2(a; h5) = 0; BL2(a; h6) = 0 BL2(a; h3) = 0; BL2(a; h4) = 0; BL2(a; h5) = 0; BL2(a; h6) = 0 BL2(a; h3) = 0; BL2(a; h4) = 1; BL2(a; h5) = 1; BL2(a; h6) = 0 BL2(a; h3) = 0; BL2(a; h4) = 0; BL2(a; h5) = 1; BL2(a; h6) = 0 BL2(a; h3) = 0; BL2(a; h4) = 1; BL2(a; h5) = 0; BL2(a; h6) = 0 Proof: We assume that the juror has uninformative prior beliefs about which lawyer shares common interests with him. Given this assumption, we further assume that the juror ignores the lawyers’ signals and bases his choice upon his prior beliefs about the state of the world, c. That is, if c > 0.5, then the juror chooses a, regardless of the signals that the lawyers sent. If c < 0.5, then the juror chooses b, regardless of the signals that the lawyers sent. If c = 0.5, then the juror randomly chooses a or b. From these assumptions about the juror’s behavior, it follows logically that lawyer 1 and lawyer 2 can send either truthful signals or false signals in equilibrium. Indeed, for any signals that lawyer 1 and lawyer 2 send, they can never be made better off by switching to a different signal because the juror is simply basing his decision upon his prior beliefs, c.

7

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

Extension #1: Penalties for Lying Having demonstrated that competition, by itself, is not sufficient to induce both lawyers to send truthful signals to the juror, we now couple competition between two lawyers with an institutional constraint that often exists in the real world—namely, penalties for lying. The addition of this institutional constraint changes the structure of the basic model in only one way. Specifically, if a lawyer sends a false signal to the juror, he must pay a penalty, p $ 0, which gets subtracted from his utility. So, for example, if nc = correct, if lawyer 2 lies about the true state of the world (i.e. sends the signal b), and if the juror nonetheless chooses a, then lawyer 2 earns utility = –1 – p. Similarly, if nc = correct, if lawyer 2 lies about the true state of the world (i.e. sends the signal b), and if the juror chooses b, then lawyer 2 earns utility = 1 – p. The payoffs for lawyer 1 are determined in a similar manner, and if either lawyer sends a truthful signal to the juror, then their payoffs remain the same as in the basic model. This extension to our basic model yields an encouraging result: Namely, if p > 2, then, in equilibrium, both lawyer 1 and lawyer 2 will send truthful signals to the juror, and the juror will, therefore, obtain a unified, truthful set of signals and will make a correct choice. More formally, when p > 2, the equilibrium strategies for each player are: Juror’s equilibrium strategies:

Bj(a; A, a) = 1 Bj(a; B, b) = 0 Bj(a; A, b) = 1 if c > 0.5; otherwise Bj(a; A, b) = 0 Bj(a; B, a) = 1 if c > 0.5; otherwise Bj(a; B, a) = 0 Lawyer 1's equilibrium strategy:

BL1(A; h1) = 1; BL1(A; h2) = 0 Lawyer 2's equilibrium strategy:

BL2(a; h3) = 1; BL2(a; h4) = 1; BL2(a; h5) = 0; BL2(a; h6) = 0 Proof: Because lawyer 1 has common interests with the juror, he earns positive utility only when the juror makes a correct decision and earns positive utility. Therefore, when p > 2, lawyer 1 will tell the truth in equilibrium. When p > 2, lawyer 2 can also never be made better off by lying to the juror and, therefore, has a dominant strategy to send a truthful signal to the juror. If p £ 2, then the equilibrium strategies for lawyer 1 and lawyer 2 are the same as in the basic model (i.e. they either lie or tell the truth). Given the incentives and equilibrium strategies of lawyer 1 and lawyer 2 when p > 2, the juror will obtain unified, truthful signals. Thus, in equilibrium, the juror will base his choice on the lawyers’ signals and make a correct choice. If p # 2, then the equilibrium strategy for the juror is the same as in the basic model.

8

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

Extension #2: Verification Having demonstrated that the addition of a sufficiently large penalty for lying leads to the revelation of truthful information, we now couple competition between two lawyers with the threat of verification. The addition of this institutional constraint changes the structure of the basic model in only one way. Specifically, after both lawyers send their signals to the juror (but before the juror makes his choice), we add a second probabilistic move by Nature, which we denote nv 0 {nc s2, s1 nc, s1 s2, nc nc}.8 That is, if either of the lawyers sends a false signal, then with probability v 0 [0, 1] Nature replaces that false signal (or false signals, if both lawyers lie) with nc (the true state of the world) and imposes a conditional cost, k $ 0, upon the lying lawyer(s). (Note that the cost, k, is conditional because it will only be imposed if verification occurs). With probability 1 – v, Nature does not replace any false signals before the juror makes his choice and does not impose any costs upon the lawyer(s). Note also that none of the players observe nv. Thus, the lawyers do not know whether their signals will be verified before they send them, and the juror does not know whether the signals that he obtains are the lawyers’signals or whether they have been verified by Nature. This extension to the basic model also yields a promising result: Specifically, when v and k are sufficiently large,9 then, in equilibrium, both lawyers have a dominant strategy to send truthful signals to the juror, and the juror will, therefore, obtain a unified, truthful set of signals and will make a correct choice

8

Note that Austen-Smith (1994) also models verification, but he focuses on a speaker’s inability to verify his or her lack of knowledge to a receiver. 9

Specifically, v and k must be large enough to ensure that lawyer 2 (i.e. the lawyer with conflicting interests) has a dominant strategy to tell the truth at each of his information sets. More formally, lawyer 2's expected benefit of lying (i.e. signaling b) and his expected benefit of telling the truth (i.e. signaling a) at h 3 can be defined as follows: EU sp2(a; h 3) = -v[ B r(a; A, a)] + v[ B r(b; A, a)] + (-1 + v)[B r(a; A, a)] + (1 – v)[B r(b; A, a)] EU sp2(b; h 3) = (-v – vk)[B r(a; A, b)] + (v – vk)[B r(b; A, b)] + (-1 + v)[B r(a; A, b)] + (1 – v)[B r(b; A, b)] When the values of v and k are such that EU sp2(a; h 3) $ EU sp2(b; h 3), then, in equilibrium, lawyer 2 will tell the truth (i.e. send the signal a) at h 3. A similar logic holds for lawyer 2's expected benefit of lying and telling the truth at h 4, h 5, and h 6. 9

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

More formally, the equilibrium strategies for each player when v and k are sufficiently large can be stated as follows: Juror’s equilibrium strategies:

Bj(a; A, a) = 1 Bj(a; B, b) = 0 Bj(a; A, b) = 1 if c > 0.5; otherwise Bj(a; A, b) = 0 Bj(a; B, a) = 1 if c > 0.5; otherwise Bj(a; B, a) = 0 Lawyer 1's equilibrium strategy:

BL1(A; h1) = 1; BL1(A; h2) = 0 Lawyer 2's equilibrium strategy:

BL2(a; h3) = 1; BL2(a; h4) = 1; BL2(a; h5) = 0; BL2(a; h6) = 0 Proof: Because lawyer 1 has common interests with the juror, he earns positive utility only when the juror makes a correct decision and earns positive utility. Therefore, when v and k are sufficiently large, lawyer 1 will tell the truth in equilibrium. When v and k are sufficiently large, lawyer 2 can never be made better off by lying to the juror and has a dominant strategy to send a truthful signal to the juror. If v and k are not sufficiently large, then the equilibrium strategies for lawyer 1 and lawyer 2 are the same as in the basic model (i.e. they either lie or tell the truth). Given the equilibrium strategies of lawyer 1 and lawyer 2 when v and k are sufficiently large, the juror will obtain a unified, truthful set of signals. Thus, in equilibrium, the juror will base his choice on the lawyers’ signals and make a correct choice. If v and k are not sufficiently large, then the equilibrium strategy for the juror is the same as in the basic model. Experimental Tests of Our Theory: In order to test the theoretical results stated in the preceding sections, we design a laboratory experiment that analyzes whether and under what conditions competition between two lawyers induces trustworthy statements and enables jurors to learn from these statements and make correct choices.10 To this end, we extend Lupia and McCubbins’s (1998) and Boudreau’s (2006) experimental designs, and we randomly select subjects (who are analogous to the juror in our model) into treatment and control groups. We then ask subjects in both groups to solve binary choice math problems (as in our model, the subjects are asked to choose either a or b as the correct choice). The math problems that we use are drawn from an SAT II, level 2 math test and consist of several different types of problems and various levels of difficulty. We tell subjects in both the treatment and control groups that they have 60 seconds to solve each math problem and that they will earn 50 cents for each problem that they answer correctly, that they will lose 50 cents for each 10

All of the experim ental m aterials that were used in these experiments are available from the authors. Please email Cheryl Boudreau at clboudreau@ ucsd.edu or Mat McCubbins at mmccubbins@ ucsd.edu if you would like to see copies of the materials that we used. 10

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

problem that they answer incorrectly,11 and that they will neither earn nor lose 50 cents if they leave a problem blank.12 The main difference between the treatment and control groups has to do with the conditions under which subjects solve the math problems. In the control group, subjects solve 6 math problems one at a time, with 60 seconds allotted for each problem. For each problem that subjects in the control group solve, we pay them according to whether they solve the problem correctly, incorrectly, or leave the problem blank. The purpose of the control group is to establish a baseline for how well subjects perform on the math problems when they must make their choices based only upon their prior beliefs about the correct answer (i.e. without an opportunity to learn from two competing lawyers’ statements). In the treatment group, subjects solve the very same 6 math problems one at a time, and they are also paid according to whether they solve the problem correctly, incorrectly, or leave the problem blank. What differs between the treatment and control groups, however, is that before each math problem that subjects in the treatment group solve, the experimenter randomly selects two subjects to act as “lawyer 1" and “lawyer 2" for that particular math problem, thereby creating a series of “one-shot” decisions for both the lawyers and the subjects.13 The lawyers’ role in the experiment is far different from that of the other subjects; that is, unlike the other subjects (whose role in the experiment is still to solve the 6 math problems one at a time), the lawyers are shown the correct answer to a particular math problem and are then allowed to make a statement to the other subjects about the answer to that math problem. Specifically, lawyer 1 (who, like lawyer 1 in our model, has common interests with subjects) states whether a or b is the correct answer to the problem.14 After lawyer 1 makes his or her statement, then lawyer 2 (who, like lawyer 2 in our model, has conflicting interests with subjects) makes a statement about whether a or b is the correct answer to the problem. After lawyer 1 and lawyer 2 make their statements sequentially (which corresponds to the sequential nature of the game that we described in the preceding sections of this paper), the other subjects in the treatment group are then given 60 seconds to solve that particular math problem and to decide whether a or b is the correct choice. After 60 seconds have passed, we then randomly 11

Due to the financial costs of running these experiments, we reduced the payoffs for making correct and incorrect choices from plus or minus 1 dollar (util) to plus or minus 50 cents. Such a reduction in payoffs does not change the logic or the results of our model. 12

Although allowing subjects to leave the problem blank may, at first blush, seem to be a significant difference between the structure of our model and the structure of our experiments, we emphasize that it is not. Indeed, it makes no difference for the results of our model whether jurors simply choose a or b or whether jurors first decide whether to answer or not answer and then, if they decide to answer, choose a or b. 13

We design the experiment as a series of six “one-shot” decisions in order to obtain a greater number of observations from a single experiment. Conducting the experiment in this manner in no way comprom ises the correspondence between our model and our experiments. 14

Note that the experimenter reads both lawyers’ statements aloud to the subjects in order to prevent subjects from learning anything about the lawyers from the sound of their voices. 11

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

select two more subjects to act as lawyer 1 and lawyer 2 for the next math problem. We select two new lawyers for each math problem in order to ensure that our experiments are analogous to the static communication game that we model and to avoid any repeat play effects. The key to our experimental design is twofold: First, as in our model, subjects know that one lawyer has common interests with them and that one lawyer has conflicting interests with them, but they do not know whether it is lawyer 1 or lawyer 2 who has common interests with them. Stated differently, subjects know that the lawyers are adversaries, but they do not know which lawyer’s interests are aligned with their own.15 Second, both lawyers and the subjects know that the lawyers can make any statements that they wish. That is, the lawyers can lie about the correct answer to the math problem or tell the truth; it is entirely up to them. The lawyers’ ability to make whatever statement they wish is constant throughout this experiment and is designed to be analogous to our model. Although the lawyers can lie or tell the truth in all of our experimental conditions, we vary the institutional context in which the lawyers make their statements, thereby creating a within-group design for subjects in our treatment group.16 Specifically, we first analyze the truthfulness of the lawyers’ statements and the subjects’ ability to choose the correct answer to the math problems when the lawyers are engaged in competition. We then alter this basic competition condition by imposing one of two institutions upon the competing lawyers: namely, a penalty for lying or a threat of verification. Each of these experimental variations is common knowledge at the outset of each part of the experiment, and each variation corresponds to our basic model and its extensions.

15

This aspect of our experiments is also analogous to our model, where the juror has uninformative prior beliefs about which lawyer has common interests with him.

Note that a true experiment requires multiple groups or multiple observations (and sometimes it requires both). A classic example of an experiment that involves multiple groups is a drug study in which subjects in the treatment group are given the drug that is being tested, while subjects in the control group receive a placebo. This experimental design is also known as a between-groups research design. Experiments that involve multiple observations are known as within-group designs. In a within-group design, a series of different treatments are imposed, one at a time, upon the same group of subjects. Alternatively, a treatment and a control condition could alternate within one group of subjects (Trochim 2001). 16

Needless to say, our experiments incorporate aspects of both a between-groups research design and a within-group research design. Specifically, our decision to randomly assign subjects to treatment and control groups represents a between-groups research design, and our decision to impose several different treatments (i.e. competition, a $15 penalty for lying, and a 100% chance of verification) upon subjects in our treatment group represents a within-groups research design.

12

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

So how do we induce competition between the two lawyers and impose the institutional conditions within the context of our experiments? In short, we induce competition and impose the institutions by manipulating the ways that the lawyers and the subjects earn money. For example, in the competition condition, subjects are paid 50 cents for each and every math problem that they answer correctly. Similarly, lawyer 1 is paid 50 cents for each and every subject who solves a particular math problem correctly, and lawyer 2 is paid 50 cents for each and every subject who solves a particular math problem incorrectly. So, for example, if 11 subjects answer the math problem correctly, they earn 50 cents each, lawyer 1 earns $5.50 (i.e. 50 cents for each of the 11 subjects who answer the problem correctly), and lawyer 2 loses $5.50 (i.e. 50 cents for each of the 11 subjects who answer the problem correctly).17 Similarly, if 11 subjects answer the math problem incorrectly, then they lose 50 cents each, lawyer 1 loses $5.50, and lawyer 2 earns $5.50. In this way, the interests of the two competing lawyers are adversarial, or zero sum. For our next experimental variation, we maintain the competition between the two lawyers, and we then impose a penalty for lying upon both lawyers. So, in this segment of the experiment, the lawyers are again engaged in competition, but we announce to the lawyers and the subjects that both lawyers will incur a $15 penalty if they lie about the correct answer to the math problem. Note that we impose a $15 penalty because that amount is large enough to ensure that both lawyer 1 and lawyer 2 have a dominant strategy to tell the truth and that the subjects know this. To see why this is the case, consider the way that lawyer 2 (i.e. the lawyer with conflicting interests) earns money under this condition: Given that there are conflicting interests between lawyer 2 and the subjects, lawyer 2 earns $5.50 if each and every subject answers a problem incorrectly. Although at first blush this might seem to give lawyer 2 an incentive to lie, note that the $15 penalty for lying will reduce lawyer 2's gain of $5.50 down to a loss of $9.50. Further, if lawyer 2 lies and all of the subjects happen to answer the problem correctly, then lawyer 2 will lose $20.50 (i.e. a $15 loss because of the penalty for lying and a $5.50 loss because 11 subjects answered the problem correctly). If lawyer 2 tells the truth, however, then the worst he or she can do is to lose $5.50 (which will happen if each and every subject answers the problem correctly), and the best that he or she can do is to earn $5.50 (which will happen if each and every subject answers the problem incorrectly). As these payoffs make clear, lawyer 2 is always better off if he or she tells the truth about the correct 17

Although our model analyzes the interaction between two competing lawyers and one juror, we ran our experiments with two competing lawyers and 11 jurors (subjects). We ran the experiments in this way because we wanted a more cost-effective method of generating data on jurors’ decisions. That said, we ensured that the lawyers and jurors in our experiments had the same incentives that they would have had if there had been only two lawyers and one juror. Specifically, because we paid the jurors only for their own decisions and because we did not allow the jurors to interact with one another during the experiment, from each juror’s perspective, it was as though the experiment was only between him self and the two lawyers. Further, because we gave all of the jurors the exact same incentives (i.e. they each earned 50 cents for solving a problem correctly and lost 50 cents for solving a problem incorrectly) and because the lawyers knew this and could not receive feedback about the jurors’ choices, the lawyers could not discriminate among the jurors. Thus, it was as though the lawyers were interacting with only one juror (for more on this point, see Lupia and McCubbins 1998). 13

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

answer to the math problem. The same is, of course, true for lawyer 1, who has common interests with subjects. For our other institutional condition—namely, verification—we again maintain the competition between the two lawyers. However, instead of imposing a penalty for lying upon the lawyers, this time, we verify both lawyers’ statements to make sure that they are true statements before they are read to subjects. Specifically, in the 100% chance of verification condition, if either lawyer chooses to make a false statement about the correct answer to the math problem, then we charge that lawyer $2 and announce the correct answer to subjects. If either lawyer makes a true statement, then we simply read that lawyer’s statement to the subjects. Note that we use a 100% chance of verification and a $2 cost because these values are large enough to ensure that both lawyer 1 and lawyer 2 have a dominant strategy to tell the truth. Because subjects earn money for answering problems correctly and lose money for answering problems incorrectly, our experiments yield a straightforward measure of whether competition (with or without the addition of institutions) enables subjects to learn from the lawyers’ statements and make correct choices. Specifically, we calculate and then compare the average amounts of money that subjects earn per math problem in each of our experimental conditions and in the control group. Although our model, of course, does not make explicit predictions about the amounts of money that subjects will earn, it does predict when subjects will learn from the two competing lawyers’ statements and when subjects will be forced to rely on their prior beliefs when making their choices. Because subjects in the control group do not have an opportunity to learn from the competing lawyers’ statements, this condition provides a baseline for the amount of money that subjects will earn when solving the problems based solely on their prior beliefs. Given that we randomly select and randomly assign subjects to treatment and control groups, any improvements that we observe over the control group can be attributed to subjects learning from the two competing lawyers’ statements. Methodology: In order to test the above hypotheses, we conducted laboratory experiments at a large public university. When recruiting subjects, we posted flyers at various locations on campus (for example, in front of the library, in the cafeterias, in the dormitories, and in academic buildings), and we also sent out campus-wide emails to advertise the experiments. A total of 144 adults who were enrolled in undergraduate classes participated in the experiments. Although we use these students as our source of data, note that our experimental results generalize to all humans. Indeed, because our experiments analyze the general processes of human learning and communication and because there is no reason to believe that these processes are different for college undergraduates than for the rest of the population, our results demonstrate the conditions under which all humans (be they college undergraduates or members of the general population) can learn from competing lawyers.18 18

That said, laboratory experiments always involve a tradeoff between internal validity and external validity (Trochim 2001). Specifically, the main advantage of conducting our experiments in a controlled environm ent and randomly assigning subjects to treatment and control groups is that we are able to make 14

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

When analyzing the data gleaned from these experiments, we conduct two different types of comparisons. First, we simply compare the percentage of times that lawyer 1 and lawyer 2 make true and false statements under each experimental condition. Such an analysis enables us to test the predictions that our model makes about the conditions under which the lawyers will (and will not) tell the truth. Second, we compare the average amounts of money that subjects earn in each experimental condition and in the control group. To this end, we conduct difference of means tests to examine whether subjects who are exposed to the two competing lawyers in each experimental condition earn significantly more money than do subjects in the control group, who must make their choices based solely upon their prior beliefs about the correct answer to the math problem. Results: Adversarial System Condition As our results for the adversarial system condition demonstrate, each of our predictions is in fact borne out in the data. Specifically, Table 1 reveals that, as we predicted, lawyer 1 and lawyer 2 make both truthful statements and false statements to subjects. That is, in ten out of twelve trials (83% of the time), lawyer 1 told subjects the truth about the correct answer to the math problem, and in two out of twelve trials (17% of the time), lawyer 1 lied to subjects about the correct answer to the math problem. Further, in three out of twelve trials (25% of the time), lawyer 2 made a truthful statement to subjects, and in nine out of twelve trials (75% of the time), lawyer 2 lied to subjects about the correct answer to the math problem.19 [Table 1 about here] Because subjects in our experiments (like the juror in our model) do not know whether lawyer 1 or lawyer 2 has common interests with them, we expect them to ignore the competing lawyers’ signals and base their decisions upon their prior beliefs about whether a or b is the correct choice. This prediction is also confirmed by our data, as subjects in this experimental condition were not able to learn from the competing lawyers’ statements and increase the amount of money that they earn, relative to the amount of money that subjects in the control group earn. As shown in Figure 2, subjects in the control group earn, on average, $0.13 per problem (N = 66), and subjects in the adversarial system condition earn, on average, $0.19 per problem (N = 78). This difference between treatment and control group subjects is not statistically significant at conventional levels (specifically, p = 0.15). [Figure 2 about here]

internally valid causal inferences. For these very same reasons, however, our experiments are much weaker in external validity. 19

Although there exist multiple equilibria to this communication game, we are not surprised that subjects in our experiments typically converged on the equilibrium in which lawyer 1 (i.e. the lawyer with common interests) tells the truth and lawyer 2 (i.e. the lawyer with conflicting interests) lies. 15

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

Penalty for Lying Condition When we impose a $15 penalty for lying upon both of our competing lawyers, our predictions are again confirmed by the data. Specifically, Table 1 shows that lawyer 1 always makes a truthful statement to subjects; that is, in twelve out of twelve trials (100% of the time), lawyer 1 told subjects the truth about the correct answer to the math problem, which is perfectly consistent with our predictions. Further, lawyer 2 also makes truthful statements to subjects about the correct answer to the math problem. Indeed, in eleven out of twelve trials (92% of the time), this lawyer told subjects the truth about the correct answer to the math problem.20 Because subjects in our experiments know that the penalty for lying is large enough to induce both lawyers to tell the truth, we expect them to trust and then learn from the competing lawyers’ statements. This prediction is also confirmed by our data, as subjects were able to learn from the competing lawyers’ statements and increase the amount of money that they earn, relative to the amount of money that subjects in the control group earn. Specifically, Figure 2 shows that subjects in the control group earn, on average, $0.11 per problem (N = 66), and subjects in the penalty for lying condition earn, on average, $0.43 per problem (N = 78). This difference between treatment and control group subjects is statistically significant (specifically, p = 0). Verification Condition When we impose a 100% chance of verification upon both of our competing lawyers, our predictions are again confirmed by the data. Specifically, Table 1 shows that lawyer 1 always makes a truthful statement to subjects; that is, in twelve out of twelve trials (100% of the time), lawyer 1 told subjects the truth about the correct answer to the math problem. Further, lawyer 2 also always makes a truthful statement to subjects about the correct answer to the math problem. Indeed, in twelve out of twelve trials (100% of the time), this lawyer also told subjects the truth about the correct answer to the math problem. Because lawyer 1 and lawyer 2 behave exactly as our model predicts (i.e. they always tell the truth about the correct answer to the math problem), subjects in this experimental condition always received unified, truthful signals about the correct answer to the math problem. Knowing that there exists a 100% chance of verification, subjects were able to learn from the competing lawyers’ signals and increase the amount of money that they earn, relative to the amount of money that subjects in the control group earn. Specifically, Figure 2 shows that subjects in the control group earn, on average, $0.13 per problem (N = 66), and subjects in the verification condition earn, on average, $0.50 per problem (N = 78). This difference between treatment and control group subjects is statistically significant (specifically, p = 0). A Comment on the Strength of our Results Before concluding, we wish to emphasize the remarkable consistency between the predictions of our model and our experimental results. Indeed, of the 72 subjects who acted as lawyer 1 or

20

The one subject who lied when she was lawyer 2 did not fully understand the instructions in the experiment. 16

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

lawyer 2 in our experiments, only one deviated from our model’s equilibrium predictions. This one deviating subject acted as lawyer 2 in the $15 penalty for lying condition, and she later admitted to being confused about the experiment and regretted her decision to lie about the correct answer to the math problem. That said, we consider our results to be remarkable not only because of the small number of subjects who deviated from our predictions, but also because of the frequent deviations that scholars typically observe when testing game theoretic predictions in experimental settings. For example, many scholars demonstrate that subjects routinely deviate from equilibrium behavior when playing ultimatum games (Andreoni, Castillo, and Petrie 2003; Andreoni and Miller 2002), trust games (Berg, Dickhaut, and McCabe 1995; Weller 2006), dictator games (Forsythe et al. 1994), and public goods games (Andreoni 1995; Palfrey and Prisbrey 1997; Goeree, Holt, and Laury 2002; Houser and Kurzban 2002). We do not find such large-scale deviations from equilibrium predictions in our experiments, however. Further, many scholars demonstrate that a fair number of deviations from equilibrium predictions can be attributed to subjects’ confusion about the experiment (for example, Andreoni 1995 and Houser and Kurzban 2002 find that roughly 50% of subjects who cooperate in a public goods game are simply confused about the experiment). That only one subject in our experiment appeared to be confused about the experimental procedures is, again, indicative of the strength of our results. Conclusion: “[T]he competition of vigorous one-sided advocates is the best warrant of finding the truth. Maybe.” – Posner 1992, p. 589 In this paper, we provided a formal model and an experimental test of a simple communication game between two lawyers (who are competing with each other) and a juror. The result that emerges in our model and in our experiments, however, is anything but simple. Indeed, it suggests that, contrary to much of the existing literature, competition, by itself, does not necessarily reveal truthful information. Rather, in equilibrium, it prevents the juror from being able to learn from the lawyers’ signals, and it, therefore, induces him to ignore the lawyers’ signals and base his decision upon his prior beliefs. Knowing that the juror will ignore their signals and make a decision based upon his prior beliefs, both lawyer 1 and lawyer 2 can either lie or tell the truth in equilibrium. Indeed, there exist multiple equilibria to this game, many of which involve one or both of the lawyers lying to the juror about whether a or b is the correct choice. However, once competition is coupled with an institutional constraint, then the juror’s ability to learn from the lawyers’ statements and make correct choices improves. Specifically, when both lawyers face a sufficiently large penalty for lying, then, in equilibrium, both lawyers send truthful signals to the juror, and the juror then obtains a unified, truthful set of signals and makes a correct choice. This prediction is largely confirmed by our experimental results. Similarly, when both lawyers face a sufficiently large probability of verification and conditional cost, then, in equilibrium, both lawyers send truthful signals to the juror, and the juror again obtains a unified, truthful set of signals and makes a correct choice. This prediction is also confirmed by our experimental results. 17

PAGE3118 Figure 1. The Extensive Form of our Basic Model

c

1-c

L1 (h1)

B

A

L2 (h3)

b

J (h7)

1 -1 1

b -1 1 -1

a 1 -1 1

L2 (h5)

a

J (h8)

b

J (h9)

b -1 1 -1

a 1 -1 1

-1 1 -1

a 1 -1 1

L2 (h6)

a

J (h10)

b

B

A

L2 (h4)

a

a

L1 (h2)

N

b

J (h7)

b -1 1 -1

a -1 1 -1

a

J (h8)

b 1 -1 1

a -1 1 -1

b

J (h9)

b 1 -1 1

a -1 1 -1

J (h10)

b 1 -1 1

a -1 1 -1

b 1 -1 1

PAGE 1932 Figure 2. Money Earned in Our Treatment and Control Groups21

.5

Money Earned Earned

.4

.3

.2

.1

0

Adversarial System Penalty for Lying Control Group

21

Verification Treatment Group

In this graph, we compare the treatment group’s performance on the two math problems that

they solved in each experimental condition with the control group’s performance on these exact same two math problems. Because we break down the six math problems that subjects in the control group solved in this way, we obtain slightly different results for the control group depending upon the experimental condition.

33

PAGE 20 Table 1. The Lawyers’ Statements by Experimental Condition22

Condition:

Lawyer Number:

% True Statements:

% False Statements:

Lawyer 1

83% (10/12)

17% (2/12)

Lawyer 2

25% (3/12)

75% (9/12)

Lawyer 1

100% (12/12)

0% (0/12)

Lawyer 2

92% (11/12)

8% (1/12)

Lawyer 1

100% (12/12)

0% (0/12)

Lawyer 2

100% (12/12)

0% (0/12)

Adversarial System

Penalty for Lying

Verification

22

A total of 72 subjects acted as either lawyer 1 or lawyer 2 in our experiments. This yields 12

observations for each lawyer in each experimental condition.

.

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

References Andreoni, James. 1995. “Cooperation in Public Goods Experiments: Kindness or Confusion?” American Economic Review, 85: 891-904. Andreoni, James and John Miller. 2002. “Giving according to GARP: An Experimental Test of the Consistency of Preferences for Altruism.” Econometrica, 70(2): 737-753. Andreoni, James, Marco Castillo, and Ragan Petrie. 2003. “What do Bargainers’ Preferences Look Like? Exploring a Convex Ultimatum Game.” American Economic Review, 93(3): 672-685. Austen-Smith, David. 1990. “Information Transmission in Debate.” American Journal of Political Science, 34(1): 124-152. Austen-Smith, David. 1994. “Strategic Transmission of Costly Information.” Econometrica, 62(4): 955-963. Berg, Joyce, John Dickhaut, and Kevin McCabe. 1995. “Trust, Reciprocity, and Social History.” Games and Economic Behavior, 10: 122-142. Boudreau, Cheryl. 2006. “When Do Heuristics Help Citizens? Assessing the Conditions under which Heuristics Improve Decisions.” Working paper, University of California, San Diego. Bundy, Stephen M. and Einer R. Elhauge. 1991. “Do Lawyers Improve the Adversary System? A General Theory of Litigation Advice and Its Regulation.” California Law Review, 79: 315420. Calvert, Randall. 1985. “The Value of Biased Information: A Rational Choice Model of Political Advice.” Journal of Politics, 47(2): 530-555. Chaiken, Shelly. 1980. “Heuristic versus Systematic Information Processing and the Use of Source versus Message Cues in Persuasion,” Journal of Personality and Social Psychology, 39: 752766. Crawford, Vincent and Joel Sobel. 1982. “Strategic Information Transmission.” Econometrica, 50: 1431-1451. Daughty, Andrew F. and Jennifer F. Reinganum. 2000. “On the Economics of Trials: Adversarial Process, Evidence, and Equilibrium Bias.” Journal of Law, Economics, and Organization, 16(2) 365-394. Elwork, Amiram, Bruce D. Sales, and James J. Alfini. 1977. “Juridic Decisions: In Ignorance of the Law or in Light of it?” Law and Human Behavior 1: 163-189. Fisher, Michael A. 2000-2001. “Going for the Blue Ribbon: The Legality of Expert Juries in Patent Litigation,” Columbia Science and Technical Law Review 2: 1-55. Forsythe, Robert, Joel Horowitz, N.S. Savin, and Martin Sefton. 1994. “Fairness in Simple Bargaining Games.” Games and Economic Behavior, 6(3): 347-369.

PAGE 21 18

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

Frank, Jerome. 1945. Courts on Trial: Myth and Reality in American Justice. Princeton: Princeton University Press. Frankel, Marvin E. 1980. Partisan Justice. New York: Hill and Wang. Freedman, Monroe H. 1975. Lawyers’ Ethics in an Adversary System. Indianapolis: Bobbs-Merrill. Froeb, Luke M. and Bruce H. Kobayashi. 1996. “Naïve, Biased, Yet Bayesian: Can Juries Interpret Selectively Produced Evidence?” Journal of Law, Economics, and Organization, 12(1): 257276. Froeb, Luke M. and Bruce H. Kobayashi. 2001. “Evidence Production in Adversarial vs. Inquisitorial Regimes.” Economics Letters, 70: 267-272. Goeree, Jacob K., Charles A. Holt, and Susan K. Laury. 2002. “Private Costs and Public Benefits: Unraveling the Effects of Altruism and Noisy Behavior.” Journal of Public Economics, 83: 257-278. Houser, Daniel and Robert Kurzban. 2002. “Revisiting Kindness and Confusion in Public Goods Experiments.” American Economic Review, 92(4): 1062-1069. Johnston, Dean Robert Gilbert and Sara Lufrano. 2002. “The Adversary System as a Means of Seeking Truth and Justice.” John Marshall Law Review, 35: 147-161. Kaplow, Louis and Steven Shavell. 1989. “Legal Advice About Information to Present in Litigation: Its Effects and Social Desirability.” Harvard Law Review, 102: 567-615. Lilly, Graham C. 2001. “The Decline of the American Jury,” University of Colorado Law Review, 72: 53-91. Lipman, Barton L. and Duane J. Seppi. 1995. “Robust Inference in Communication Games with Partial Provability.” Journal of Economic Theory, 66: 370-405. Lupia, Arthur and Mathew D. McCubbins. 1994. “Who Controls Information and the Structure of Legislative Decision Making.” Legislative Studies Quarterly, 19: 361-384. Lupia, Arthur and Mathew D. McCubbins. 1998. The Democratic Dilemma: Can Citizens Learn What They Need to Know? Cambridge: Cambridge University Press. Madison, James. 1788. Federalist #10. In Clinton Rossiter, ed., The Federalist Papers. New York: Penguin. Milgrom, Paul and John Roberts. 1986. “Relying on the Information of Interested Parties.” Rand Journal of Economics, 17: 18-31. Palfrey, Thomas R. and Jeffrey E. Prisbrey. 1997. “Anomalous Behavior in Linear Public Goods Experiments: How Much and Why?” American Economic Review, 87: 829-846. Petty, Richard E. and John T. Cacioppo. 1984. “The Effects of Involvement on Responses to Argument Quantity and Quality: Central and Peripheral Routes to Persuasion,” Journal of Personality and Social Psychology, 46: 69-81. 19 PAGE 22

THE BATTLE FOR TRUTH : THEORY AND EXPERISMENTS REGARDING COM PETITION AND THE ADVERSARIAL SYSTEM

Posner, Richard A. 1992. Economic Analysis of Law, Fourth Edition. Boston: Little, Brown and Company. Posner, Richard A. 1999. “An Economic Approach to the Law of Evidence.” Stanford Law Review, 51: 1477-1546. Pound, Roscoe. 1906. “The Causes of Popular Dissatisfaction with the Administration of Justice,” Reports of the American Bar Association, 29: 395-404. Shin, Hyun Song. 1998. “Adversarial and Inquisitorial Procedure in Arbitration.” RAND Journal of Economics, 29(2): 378-405. Sobel, Joel. 1985. “A Theory of Credibility.” The Review of Economic Studies, 52: 557-573. Trochim, William M. K. 2001. The Research Methods Knowledge Base, 2nd edition. Cincinnati: Atomic Dog Publishing. Tullock, Gordon. 1975. “On the Efficient Organization of Trials.” Kyklos, 28: 745-762. Tullock, Gordon. 1980. Trials on Trial: The Pure Theory of Legal Procedure. New York: Columbia University Press. Weller, Nick. 2006. “Trusting Development, Developing Trust.” Paper presented at the annual meeting of the Midwest Political Science Association, Chicago, IL, April 21-24 2006.

PAGE 23 20

PAGE 24

IN PRAISE OF OVERZEALOUS REPRESENTATION LYING TO JUDGES, DECEIVING THIRD PARTIES, AND OTHER ETHICAL CONDUCT Monroe H. Freedman1 Hofstra University Law School Legal Studies Research Paper Series Research Paper No. 06-9 I. Zeal and Overzealousness For more than a century, the lawyer’s ethic of zeal has required, and has inspired, entire devotion to the interests of the client, warm dedication in the maintenance and defense of his rights, and the exertion of the lawyer’s utmost learning and ability.2 In the classic statement by Henry Lord Brougham in 1820 in Queen Caroline’s Case: [A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion.3 This “traditional aspiration” of zealous representation4 pervades all other professional obligations of the lawyer to her client.5

1

Professor of Law, Hofstra University Law School; author, U NDERSTANDING L AW YERS ’ E TH IC S (3rd ed., 2004) (with Abbe Smith). I am grateful to Lisa Spar, Assistant Director for Reference and Instructional Services at the Deane Law Library, Hofstra University, for her invaluable research assistance. 2

See ABA, Canons of Professional Ethics, Canon 8 (1908) (paraphrased here); ABA Model Code of Professional Responsibility, Canon 7 (“A Lawyer Should Represent a Client Zealously Within the Bounds of the Law”); ABA Model Rules of Professional Conduct, MR 1.3, cm t. 1 (“A lawyer must ... act with commitment and dedication to the interests of the client, and with zeal in advocacy on the client’s behalf.”); Freedman & Smith, n. 1, supra, Ch. 4 (“Zealous Representation: The Pervasive Ethic”). 3

T H E T RIAL OF Q U EEN C ARO LIN E , vol. 2, p. 3 (1821) (N.Y. Pub. Lib., Humanities, Gen’l Research, Rm . 315, Call No. CK). It has been erroneously stated that Brougham, later in life, repudiated this declaration. Fred C. Zacharias & Bruce A. Green, R ECO NCEPTUALIZING A DVOCACY E TH IC S , 74 Geo. Wash. L.Rev. 1 (2006). In fact, however, half a century later, Brougham reiterated his statement, and declared it to be the lawyer’s “sacred duty.” Monroe H. Freedman, H ENRY L O R D B ROUG H AM , W RITTEN BY H IM SELF , __ Georgetown Jour. Legal Eths. __ (2006). 4

R ESTATEMENT T H IRD

5

Freedman & Smith, n. 1, supra, Ch. 4, esp. pp. 71-72.

O F TH E

L AW G O VERNING L AW YERS , §16, Cmt. d (2000).

1

LYING

TO

JUD GES

Ordinarily, of course, a lawyer’s zeal on behalf of a client is to be exercised only within the law and the disciplinary rules.6 “Overzealousness,” therefore, connotes conduct that goes over, or beyond, the bounds of law and/or the disciplinary rules.7 By definition, therefore, it would appear that overzealousness can never be justified as ethical conduct. My argument here, however, is that zealous representation – “entire devotion to the interests of the client” – may sometimes require the lawyer to violate other disciplinary rules. Three ethical rules that are universally recognized, and that are unquestionably sound and desirable, are that a lawyer shall not make a false statement of fact to a court,8 that a lawyer shall not make a false statement of material fact to a third person,9 and that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.10 Yet there are circumstances in which zealous representation, which embraces the ethical requirements of competence11 and confidentiality,12 can require a lawyer to make a false statement to a court or to a third person, or to engage in other conduct involving dishonesty, fraud, deceit, or misrepresentation. II. Lying to Judges Consider, for example, an issue raised with me several years ago by Legal Aid lawyers in Brooklyn. Some judges, they said, would routinely call defense counsel to the bench prior to trial in criminal cases and say, “Come on, let’s move this along. Did he do it or didn’t he?”13 In the large majority of cases, the honest answer to the judge’s question is, “Yes, Your Honor, he’s guilty as charged.” To say that, however, would be a violation of the ethical requirement of confidentiality and of the client’s constitutional privilege against self-incrimination.14 Accordingly, the “proper” response to the judge’s question is, “I’m sorry, Your Honor, but I can’t ethically answer that question.” However, the

6

See, e.g., ABA, Model Code of Professional Responsibility, EC 7-1, DR 7-101.

7

Canon 7 of the ABA’s Model Code of Professional Responsibility requires the lawyer to “Represent a Client Zealously Within the Bounds of Law.” Significantly, nine of the ten Disciplinary Rules under Canon 7 are devoted to limits on zealous representation. 8

E.g., MR 3.3(a)(1); DR 7-102(a)(5).

9

MR 4.1(a).

10

E.g., MR 8.4(c); DR 1-102(a)(4).

11

MR 1.1 (“Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”). 12

MR 1.6(a) (“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” 13

I do not know whether the practice persists in Brooklyn, but Professor Steven Lubet has told me that it happens currently in Chicago. 14

See Freedman & Smith, supra n. __, at 183-188.

2

LYING

TO

JUD GES

problem with that reply, and with similar non-responsive answers, the lawyers said, is that the judge invariably would assume that the lawyer had impliedly acknowledged her client’s guilt.15 Also inadequate to zealous representation and to maintaining the client’s confidences would be, “He has pleaded not guilty, Your Honor.” Again, the judge will infer an acknowledgment of guilt by the lawyer. A more pertinent response would be, “Your Honor, you know that you shouldn’t be asking me that question,” but that answer is likely to prejudice the client even more, both by implying guilt and by criticizing the judge. In short, the judge has improperly placed the lawyer in the position of violating confidentiality and incriminating her client. The response to the judge that is consistent with zeal, confidentiality, competence, and the Fifth Amendment, therefore, is, “Your Honor, I have no doubt that this defendant is not guilty.” That statement by the lawyer, however, would be intended to mislead the judge into believing something that the lawyer knows to be false.16 It would therefore appear to involve “dishonesty, fraud, deceit, or misrepresentation,” and to constitute a false statement of fact to the court. How, then, could one justify that? As noted earlier, the judge has no right to ask the question. MR 1.6 protects all information relating to the professional relationship, which includes information that might be harmful or even simply embarrassing to the client.17 But, although the lawyer is trying to protect client information, there is nothing in the rule that sanctions a response that is calculated to mislead a judge. Also, MR 3.4(e) forbids a lawyer to state a personal opinion about the guilt or innocence of an accused, but there is no suggestion that a lawyer may lie to avoid stating a personal opinion regarding guilt or innocence. I would like, therefore, to venture beyond the words of the ethical rules themselves, into the larger legal context of the lawyers’ role, into understanding inconsistent ethical rules in the light of reason, into the purposes of legal representation in criminal cases, and into moral philosophy. My authority for doing so is the Scope section of the Model Rules themselves. The Scope section, tells us that the Rules of Professional Conduct are “rules of reason.”18 It tells us further that the rules “presuppose a larger legal context shaping the lawyer’s role.”19 It tells us, moreover, that the rules must be interpreted “with reference to the purposes of legal representation and of the law itself.”20 Most important, it tell us that the black-letter rules “do not ... exhaust the moral and ethical

15

The response, “I don’t know whether he did it or not,” would be a similar disservice to the client, and would frequently be false, or, at best, an equivocation. 16

Even if the lawyer does not know whether the client is guilty, the statement would be fraudulent in the sense that “[f]raud includes the pretense of knowledge when knowledge there is none.” Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. 170, 174 N.E. 441 (1931) (Cardozo, J.). 17

See ABA, Model Code of Professional Responsibility, DR 4-101(a).

18

Scope, para. [14].

19

Id., para. [15].

20

Id., para. [14].

3

LYING

TO

JUD GES

considerations that should inform a lawyer,” because “no worthwhile human activity can be completely defined by legal rules.”21 I have already mentioned the constitutional protection of an accused against compulsory selfincrimination. I do not want to dwell on that here, other than to observe that a lawyer cannot, consistent with the Constitution, lead the client to believe that she is “acting solely in [the client’s] interest,” and then, in response to a judge’s question, become essentially “an agent of the state recounting unwarned statements.”22 In addition, in our constitutionalized adversary system,23 a criminal defendant is presumed to be innocent. The burden is on the prosecution to prove beyond a reasonable doubt that the defendant is guilty. The plea of not guilty does not necessarily mean “not guilty in fact,” for the defendant may simply be exercising his right to put the government to its proof. Further, the accused who knows that he is guilty has an absolute constitutional right to remain silent. Moreover, the lawyer’s role in that system is further defined by the ethical obligation to give “entire devotion to the interests of the client.” As the ABA has said, therefore, the criminal defense lawyer is the client’s lone champion against a hostile world.24 Moreover, as noted above, the Scope section of the Model Rules enjoins the lawyer to recognize that there are “moral and ethical considerations,” beyond the rules themselves, that should inform the lawyer’s professional conduct. With regard to conduct involving dishonesty, fraud, deceit, or misrepresentation, there might appear to be no conflict between rules of lawyers’ ethics and familiar systems of moral philosophy. St. Augustine, for example, was explicit that lying is intrinsically evil and is never morally permissible, and that, if one speaks at all, the truth must be told regardless of the consequences.25 Anticipating Kant’s categorical imperative, Augustine argued that if the victim of a would-be murderer is hiding in a man’s house, the man may refuse to answer, but that he may not deny that the victim is there.26 In the light of that illustration, it is not surprising that “the question of lying creates great difficulties for the moralist.”27 For theologians, in particular, both the Jewish Scriptures and the Christian Gospels present difficulties. In Genesis, for example, when Sarah learns that God will give her a child, Sarah laughs, saying that both she and Abraham are too old to conceive a child.28 When God relates this to Abraham, however, He

21

Id., para. [16].

22

See Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866 (1981), discussed in Freedman & Smith, supra n. __, at 183-185. 23

Freedman & Smith, supra n. __, Ch. 2 (“The Adversary System”).

24

ABA, STANDARDS RELATING TO THE DEFENSE FUNCTION 145 (1971).

25

Albert R. Jonsen & Stephen Toulmin, THE ABUSE OF CASUISTRY : A HISTORY OF MORAL REASONING 196 (1988) (citing Augustine, DE MENDACIO , Ch. 6); NEW ADVENT CATHOLIC ENCYCLOPEDIA , Lying (http//:www.newadvent.org/cathen/09469a.htm). 26

N EW A DVENT C ATH O L IC E NCYCLO PEDIA , supra n. __.

27

Id.

28

Genesis, xviii, 12.

4

LYING

TO

JUD GES

says only that Sarah had said that she was too old to conceive.29 Recognizing that God has told less than the whole truth, rabbinical authorities have understood God’s equivocation to have been justified by the overriding importance of maintaining peace between husband and wife.30 Thus, telling the whole truth would appear not to be a categorical imperative. Another example of biblical endorsement of lying, is when the Egyptian midwives give Pharaoh a false explanation to cover up their disobedience to his command that they kill all the male infants born to the Hebrews. God approves of the midwives’ conduct, including their lies to Pharaoh, and rewards them.31 Further, when Jesus is asked when the Day of Judgment will come, he replies, “But of that day and that hour knoweth no man, no, not the angels which are in heaven, neither the Son, but the Father.”32 Catholic theologians have reasoned that Jesus could not have been speaking the truth because, as the Son of God, He must have known the answer to the question. What then are we to make of his statement? One response to that question is St. Thomas Aquinas’ doctrine of mental reservation, which is a form of morally justifiable equivocation. That is, there are circumstances in which “[i]t is licit to hide the truth prudently by some sort of dissimulation.”33 In the case of Jesus’ denial of knowledge of the Day of Judgment, for example, His justifiable mental reservation is that the Son has no knowledge that the questioner is entitled to know. That reasoning has produced a variety of illustrative situations. A simple one is a husband who tells a door-to-door salesman, contrary to fact, that his wife is not at home, when the husband means, in his own mind, “She is not at home to you.” A more important illustration is of the priest who is asked whether a penitent has confessed certain self-incriminatory information to the priest. For the priest to answer simply that he cannot reveal what he has been told under the sacred seal of the confessional, could be taken to imply that there has indeed been an incriminating confession. In such a case, the priest can properly deny that any admission has been made. The justification, again, is that the questioner has no right to a truthful answer, and the priest may therefore make use of a mental reservation such as, “The penitent has not made any such admission to me outside the confessional, and, therefore, he has made no admission that I can reveal to you.” To provide a necessary stopping point to the doctrine of mental reservation, Catholic theologians have circumscribed it by the requirement that the hearer should be able to recognize the equivocation for what it is, on the basis of factors external to the mind of the speaker.34 For example, a close listener might

29

Id., xviii, 13.

30

T H E P EN TATEU C H

AN D

H AFTORAHS 64, n.13 (J.H. Hertz, 2d ed., 1981).

31

Exodus, i, 15-20.

32

Mark 13:32 (King James ed.); see also Matthew 24:36.

33

Jonsen & Toulmin, supra n. __, at 197 (citing Aquinas, SUMMA THEOLOGIAE II-II, q. 110, a.3 and 4). The Scholastics elaborated on this idea. In the early thirteenth century, St. Raymund of Pennafort wrote in his SUMMA that in the case of the would-be murderer, the owner of the house may, if necessary, deny that the victim is in the house. Id.; New Advent Catholic Encyclopedia, supra n. __. 34

This is referred to a a “wide mental reservation.” This is to be distinguished from a “strict mental reservation,” which is illicit, and which occurs when the hearer has no way of recognizing the equivocation other than by reading the mind of the speaker.

5

LYING

TO

JUD GES

recognize an ambiguity in the words used, or the hearer might be able to recognize the presence of a mental reservation because of the special role and responsibilities of the speaker, e.g., as a priest, as a lawyer, or as a doctor. “Prudent [people] only speak about what they should speak about, and what they say should be understood with that reservation.”35 Let’s return, then, to the judge who questions the lawyer about the guilt or innocence of his client. I have said that the lawyer is justified in answering, “Your Honor, I have no doubt that this client is innocent.” Here are my reasons. First, the judge has no right to ask the question and to expect an honest answer. Second, the lawyer is forbidden by both her ethical and her constitutional responsibilities to answer the question honestly. Third, a refusal to answer will be taken as an admission of the client’s guilt. Fourth, the lawyer’s response is not literally false, because it is a form of morally justifiable equivocation. That is, although the lawyer’s statement is intentionally misleading, it is technically accurate, because the client is presumed to be innocent, and is not legally guilty until the jury has found him to be guilty after a trial. Moreover, the judge should know that the lawyer’s role – including the lawyer’s constitutional and ethical responsibilities – justify the lawyer’s wide mental reservation: “My client is innocent, because under the Constitution and laws of the United States, my client is innocent until proven guilty beyond a reasonable doubt.” In sum, returning to the Scope section of the Model Rules, I believe that this conclusion is consistent with the larger legal context of the lawyers’ role, including the client’s overriding constitutional right to effective assistance of counsel and his privilege against selfincrimination; that the conclusion is justified by treating the lawyer’s obligations – of zealous representation, of confidentiality, of competence, and of truthfulness to judges – as rules of reason, to be weighed according to context, including, here, a criminal trial; and that the conclusion is justified in terms of the “moral and ethical considerations that should inform a lawyer” beyond the bounds of the disciplinary rules themselves. III. Deceiving Third Parties and Judges in Negotiations With regard to deceiving third parties, we have, again, clear and desirable rules. MR 4.1(a) forbids a lawyer to made a false statement of material fact to a third person. MR 8.4, as we have seen, forbids a lawyer to engage in conduct involving dishonest, fraud, deceit, or misrepresentation. Assume, then, that the plaintiff in a civil case has said to his lawyer, “I would like to get a settlement of $100,000, but if the best you can do is $75,000, take it.” When the lawyer then opens negotiations with the defendant’s lawyer, the latter says, “We’ll give you $150,000, but not a penny more.” The plaintiff’s lawyer responds, “My client is insisting on no less than $200,000.” After further negotiations, the parties agree on $175,000. It would appear that the plaintiff’s lawyer has violated MR 4.1(a) by making a false statement of material fact to the defendant’s lawyer, and has violated MR 8.4(c) by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. His client has expressed a hope of recovering $100,000 and a willingness to settle for $75,000, and the lawyer has made a flat-out misrepresentation by saying that his client is insisting on nothing less than $200,000. Nevertheless, Comment 2 to MR 4.1 defines this particular kind of misrepresentation of material fact as a “convention,” which means that it is permitted on grounds of acceptable mental reservation. As the comment explains, “[u]nder generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact.” Such “generally accepted conventions” include “a party’s intentions as to an acceptable settlement of a claim.” Moreover, the ABA has recognized that a client’s minimum or maximum settlement figure is protected under

35

New Advent Catholic Encyclopedia, supra n. __.

6

LYING

TO

JUD GES

MR 1.6 as confidential information. Thus, the opposing lawyer can identify the equivocation or mental reservation by awareness of his adversary’s role, including the adversary’s obligation of confidentiality, and an awareness of accepted custom in such circumstances. What then if a judge, pursuant to law in the federal system and many states, requires the lawyers in a case before her to engage in pretrial settlement conferences? One method used by some judges is to confer with each lawyer separately, and inquire as to each client’s minimum or maximum settlement figure. The ABA Committee on Ethics and Professional Responsibility has recognized that such information is protected as confidential under MR 1.6, and that giving such information to the judge will ordinarily significantly prejudice the client’s position in the case.36 The Committee has also noted that the Model Code of Judicial Conduct forbids a judge to pressure parties to reveal confidential information.37 Further, the Committee has recognized that judges enjoy a “superior position of authority,” particularly with respect to lawyers who appear before the judge regularly, and that some judges have abused that superior authority in compulsory settlement conferences.38 Consistent with Comment 2 to MR 4.1, therefore, the lawyer should be permitted to engage in the convention of giving the judge an inflated or deflated figure for purposes of settlement negotiations. Surely the judge will be as aware as opposing counsel of the lawyer’s role, of the lawyer’s ethical obligation of confidentiality, and of conventions in negotiation. More important, as the Committee has recognized, some judges have been known to abuse their superior position of authority. One way that happens, with no realistic opportunity for redress, is by the judge’s subsequently ruling against the client in any close questions that arise during trial if the lawyer refuses to answer the judge.39 Accordingly, for a lawyer to decline to respond to a judge’s demand for her client’s ultimate settlement position, can be highly prejudicial to the client. These would seem to be compelling reasons to recognize that just as a lawyer can properly give an inflated or deflated settlement figure to an adversary, the lawyer can do likewise with a judge. Nevertheless, with no adequate analysis or explanation,40 ABA Formal Opinion 93-370 concludes that a lawyer can decline to answer the judge’s demand for an ultimate settlement figure, but that he cannot ethically give the judge an inaccurate figure. For reasons already discussed, I disagree. IV. Sting Operations Involving Dishonesty In the 1960s, I was involved in efforts to enforce the District of Columbia’s rules against racial discrimination in housing. The only way to make a case of discrimination was through “testers.” An AfricanAmerican couple would purport to be interested in buying or renting a house in a particular neighborhood. They would claim to be married and to have two children and a particular income level. Immediately after they were told that no houses were available for sale or rent in the neighborhood, a white couple purporting

36

Formal Opin. 93-370.

37

Id.

38

Id.

39

See Freedman & Smith, supra n. __, at p. 124 (United States District Court Chief Judge Marvin Aspen relating such conduct on the part of judges to retaliate against lawyers of whom the judges disapprove). 40

For example, the Opinion simply contradicts Comment 2 to MR 4.1 by saying, “a party’s actual bottom line or the settlement authority given to a lawyer is a material fact.”

7

LYING

TO

JUD GES

to have the same family and income would apply for a house. When the white couple were then shown two or three available houses, there would be persuasive evidence of racial discrimination. This was a reasonable way – in fact, a necessary way – to carry the burden of proving discrimination. The problem is that under the Model Rules, my conduct would have been unethical. Acting through others (the testers), I made material misrepresentations of fact to the real estate brokers and engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation.41 As recognized by Second Circuit Judge James L. Oakes, “the private lawyer who participates in a sting operation almost necessarily runs afoul of the canons of legal ethics.”41 [Second Footnote 41 in Original] Oakes went on to explain that a lawyer is forbidden to “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation,”42 and that lawyers are subject to this duty even when they are not acting in their capacity as lawyers.43 Despite the plain meaning of the ethical rules, however, courts regularly accept evidence that is produced by undercover or sting operations. For example, two years before Judge Oakes’ observations, the Seventh Circuit was able to say:44 This court and others have repeatedly approved and sanctioned the role of “testers” in racial discrimination cases.... It is frequently difficult to develop proof in discrimination cases and the evidence provided by testers is frequently valuable, if not indispensable.... [W]e have long ago recognized that this requirement of deception was a relatively small price to pay to defeat racial discrimination. This judicial disposition to admit the fruits of sting operations is not restricted to cases of racial discrimination, but extends to commercial cases as well. For example, in a case involving testers who misrepresented themselves in order to expose trademark violations by a client’s competitor, the court held that excluding the evidence that had been obtained by the testers “would not serve the public interest or promote the goals of the disciplinary rules.”45 Also, in another unfair trade case, the court relied on an affidavit of Professor Bruce Green, who stated that “[t]he prevailing understanding in the legal profession

41

The same was true then under Canon 15 of Canons of Professional Ethics, which proscribed “any manner of fraud or chicane.” 41

United States ex rel. Vuitton et Fils S.A. v. Klayminc, 780 F.2d 179, 186, 187-188 (2d Cir., 1985) (Oakes, J. dissenting), rev’d sub nom. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987). Judge Oakes objected to privately run sting operations that do not have prior judicial approval from a court; this issue was not reached by the Supreme Court, which reversed the majority decision on broader grounds. 42

Id., citing DR 1-102(A)(4) (1980); MR 8.4(c) (1983).

43

Id., citing ABA Formal Op. 336 (1974).

44

Richardson v. Howard, 712 F.2d 319, 321 (7th Cir., 1983).

45

Gidatex v. Campaniello, 82 F.Supp.2d 119 (1999).

8

LYING

TO

JUD GES

is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means.”46 Again, the court admitted the evidence developed through a sting operation involving misrepresentations. What, then, is a conscientious lawyer to do? Can she, consistent with zealous representation, fail to develop essential evidence that is only available through a sting operation? Indeed, if “the prevailing view in the legal profession” is that such conduct is not ethically proscribed, and if courts are admitting such evidence, can a lawyer comply with the obligation of competent representation if she fails to conduct the sting that is essential to establishing her client’s rights?47 V. Conclusion This article has dealt principally with three ethical rules that are both clear and highly desirable – MR 3.3(a)(1), which forbids a lawyer to make a false statement of fact to a tribunal; MR 4.1(a), which forbids a lawyer to make a false statement of material fact to a third person; and MR 8.4(c), which proscribes conduct involving dishonesty, fraud, deceit, or misrepresentation. It has also recognized that overzealousness, by definition, refers to conduct that exceeds the bounds of ethical rules. Nevertheless, I have argued that there are circumstances in which zealous representation – that is, “entire devotion to the interests of the client” – may sometimes require the lawyer to violate these salutary disciplinary rules. In reaching that conclusion, I have ventured beyond the words of the ethical rules themselves, into the larger legal context of the lawyers’ role, into understanding inconsistent ethical rules in the light of reason, into the purposes of legal representation, and into moral philosophy. My authority for doing so is the Scope section of the Model Rules themselves. The Scope section tells us that the Rules of Professional Conduct are “rules of reason.”48 It tells us further that the rules “presuppose a larger legal context shaping the lawyer’s role.”49 It tells us, moreover, that the rules must be interpreted “with reference to the purposes of legal representation and of the law itself.”50 Most important, it tell us that the black-letter rules “do not ... exhaust the moral and ethical considerations that should inform a lawyer,” because “no worthwhile human activity can be completely defined by legal rules.”51 Accordingly, by considering the larger legal context of the lawyer’s role, including our clients’ constitutional rights; by understanding inconsistent ethical rules in the light of reason; and by applying insights of moral philosophy, I have concluded that there are circumstances in which a lawyer can ethically make a false statement of fact to a tribunal, can ethically make a false statement of material fact to a third person, and can ethically engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

46

Apple Corps Limited v. Lennon, 15 F.Supp.2d 456, 475 (1998).

47

Competence requires “the legal ... preparation reasonably necessary for the representation.” MR 1.1. A lawyer “shall not ... [h]andle a legal matter without preparation adequate in the circumstances.” DR 6-101(A)(2). 48

Scope, para. [14].

49

Id., para. [15].

50

Id., para. [14].

51

Id., para. [16].

9

10

K-GREEN6

12/1/01 6:07 PM

Lying, Misleading, and Falsely Denying: How Moral Concepts Inform the Law of Perjury, Fraud, and False Statements by STUART P. GREEN*

Introduction The term “legal moralism” has traditionally referred to the view that it is permissible to use government sanctions, including criminal sanctions, to enforce prohibitions on conduct that is immoral but not directly harmful (or even offensive) to others or self. Legal moralists of this stripe thus embrace the anti-liberal view that the state may legitimately criminalize acts such as adultery, incest, and prostitution, 1 even when performed in private by consenting adults. In recent years, however, “legal moralism” has also come to mean something else. The term is now frequently used to refer to the view that, as Dan Kahan has put it, “law is suffused with morality and, * Associate Professor of Law, Louisiana State University. I am grateful to Bob Batey, Pam Bucy, Bernard Harcourt, Kyron Huigens, Paul Roberts, Greg Smith, and Sarah Welling for their helpful comments on an earlier draft. Thanks also to Lohr Miller for his excellent research support. No one should be deceived into thinking that the author is not responsible for any errors that remain. 1. See, e.g., PATRICK DEVLIN, THE ENFORCEMENT OF MORALS (1965); JAMES FITZJAMES STEPHEN, LIBERTY, EQUALITY, FRATERNITY (Univ. of Chicago Press ed. 1991) (1873). The opposing, liberal, view is that the only morally legitimate basis for criminal prohibitions is harm or (in some formulations) offense to non-consenting parties other than the actor. See, e.g., H.L.A. HART, LAW, LIBERTY, AND MORALITY 6 (1963); JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARM TO OTHERS 12-13 (1984). Bernard Harcourt has recently argued, however, that the terms of the Hart-Devlin debate have shifted in recent years. According to Harcourt, those who want to prohibit prostitution, pornography, drug use, and other kinds of conduct that once were viewed as “harmless wrongdoing,” now argue that such acts are in fact harmful to others or self. Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. CRIM. L. & CRIMINOLOGY 109 (1999). [157]

K-GREEN6

158

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

as a result, can’t ultimately be identified or applied . . . without the 2 making of moral judgments.” Proponents of this brand of legal moralism seek to explain how moral judgments about character, virtue, and vice relate to and explain a broad range of rules and concepts in criminal law, including, for example, negligence as a basis 3 for criminal liability, the distinction between voluntary manslaughter 4 5 and murder, and the maxim that ignorance of the law is no excuse. Legal moralists of this sort need not take any particular position on 6 the criminalization of non-harmful or non-offensive acts. Their goal instead is primarily a descriptive one: to explain both the role that morality plays in the creation of various criminal law rules, and, to a lesser extent, the reciprocal role that the criminal law plays in the 7 formation of our moral judgments. 2. Dan M. Kahan, Ignorance of Law is an Excuse—But Only for the Virtuous, 96 MICH. L. REV. 127, 128 (1997). 3. Kyron Huigens, Virtue and Inculpation, 108 HARV. L. REV. 1423, 1473-76 (1995); see also Kyron Huigens, The Dead End of Deterrence, and Beyond, 41 WM. & MARY L. REV. 943 (2000) (explaining criminal fault generally in virtue ethics terms); Kyron Huigens, Rethinking the Penalty Phase, 32 ARIZ. ST. L.J. 1195 (2000) (dealing with death sentencing in virtue ethics terms). 4. Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 COLUM. L. REV. 269, 305-22 (1996). 5. Kahan, supra note 2. 6. Michael Moore uses “legal moralism” in what is arguably yet another sense of the term. According to Moore, a legislator who subscribes to legal moralism would believe that in some sense there are right answers to moral questions . . . and that such right answers do not depend on what most people in his society happen to think about these matters. Further, a theorist of this type would believe that every legislator has the right and the duty to legislate his view of what the correct moral order is, into law. MICHAEL MOORE, PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 645 (1997). Ultimately, the content of the “liberal” legal moralism that Moore endorses looks very different from the content of the “conservative” legal moralism embraced by writers such as Lord Devlin, see supra note 1. (For example, because Moore believes that “morality is indifferent to sexual practices, and that avoidance of much else in the way of conventionally regarded ‘vice’ is only supererogatory but not obligatory,” he would decriminalize “much of what passes as ‘morals offences’ in our current criminal code.” MOORE, supra at 662.) Nevertheless, from a methodological standpoint, Moore’s version of legal moralism seems more like the primarily prescriptive version developed by Devlin than the primarily descriptive version used by Kahan. 7. Used in this second sense, the term “legal moralist” might apply even to Joel Feinberg, who has offered both a famously sustained critique of legal moralism in the first sense, see JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW: HARMLESS WRONGDOING (1988), and a retributivist theory of criminal law that consistently deals with the making of moral judgments. See, e.g., Joel Feinberg, Some Unswept Debris from the Hart-Devlin Debate, 72 SYNTHESES 260 (1987) (quoted in Jean Hampton, How You Can Be Both a Liberal and a Retributivist: Comments on Legal Moralism and Liberalism by Jeffrie Murphy, 37 ARIZ. L. REV. 105, 106 (1995)): The liberal . . . can and must concede that the criminal process in its very conception is inherently immoral (as opposed to nonmoral)—a great moral

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

159

This article presents a study in legal moralism in this second sense. Even those writers, like Joel Feinberg, who reject legal moralism in the first sense, agree that conduct must be more than merely harm-producing in order to be criminalized; it must also 8 involve some form of moral wrongfulness. In recent work, I have attempted to describe the various forms that such wrongfulness might 9 take, such as cheating, disobedience, and promise-breaking. In this article, I focus on the relationship between lying, non-lying deception, and falsely denying, on the one hand, and perjury, fraud, and false statements on the other. Each of these offenses involves obviously harmful or risk-producing conduct, and each is uncontroversially 10 My focus, therefore, is not on subject to criminal sanctions. 11 harmfulness, but on moral wrongfulness. I explain the various and subtle ways in which our moral views on lying, misleading, and falsely denying inform and shape the content of these criminal prohibitions. * * * Part I of the article offers an account of the structural and moral differences among three different kinds of deception, which I shall refer to as “lying,” “merely misleading,” and “falsely denying.” Lying, as we shall see, involves asserting what one believes is literally false. When A lies to B, A gets B to place his faith in him, and then breaches that faith. Merely misleading, by contrast, involves a quite machine, stamping stigmata on its products, painfully “rubbing in” moral judgements on the persons who had entered at one end as “suspects” and emerged from the other end as condemned prisoners. The question the liberal raises about this moral machine is “which action should cause their doers to be fed into it?”, and his answer is: “only those actions that violate the rights of others.” There is no doubt in his mind that the law may “enforce morality.” The question is “which morality (or which sector of morality) may it properly enforce?”, and he restricts the criminal law to the enforcement of “grievance morality.” Id. For a criticism of the supposed inconsistencies between Feinberg’s liberalism and his retributivism, see Jeffrie G. Murphy, Legal Moralism and Liberalism, 37 ARIZ. L. REV. 73, 79-84 (1995). 8. See FEINBERG, supra note 1, at 36. 9. E.g. Stuart P. Green, Why It’s a Crime to Tear the Tag Off a Mattress: Overcriminalization and the Moral Content of Regulatory Offenses, 46 EMORY L.J. 1533 (1997). 10. On the reasons why some deceptive conduct is subject to criminal (or other legal) sanctions, and some is not, see Rob Atkinson, Lucifer’s Fiasco: Lawyers, Liars, and L’Affair Lewinsky, 68 FORDHAM L. REV. 567, 596-7 (1999) (“[T]he law of defamation punishes intentional falsehoods that injure someone’s reputation, and the law of fraud penalizes false inducements that deprive people of their property. . . . Perjury, lying under oath in a judicial proceeding, is illegal for fairly obvious reasons. In liberal regimes, a fundamental purpose of trials is to discover truth, so that law can be justly applied to the facts of the case.”). 11. I have previously described the difference between the two concepts in Green, supra note 9, at 1549-52.

K-GREEN6

160

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

different dynamic. When A merely misleads B, A invites B to believe something that is false by saying something that is either true or has 12 no truth value. Any mistaken belief that B may draw from A’s misleading statement is, at least in part, B’s responsibility, and (other things being equal) A should be regarded as less fully culpable than if she had lied. This postulate, which I refer to as the principle of caveat auditor, or “listener beware,” helps to explain much about the differences between lying and other forms of deception. “Falsely denying” refers to a separate moral category, which involves both lying and non-lying deception that occurs in the context of a person’s falsely denying some prior accusation of wrongdoing. My claim here is that deception of this sort is associated with a defensive “right of self-preservation,” and that, as a result, will frequently be viewed as morally “excused,” even if not typically “justified.” Part II shows how the moral concepts of lying, misleading, and falsely denying correspond, respectively, to the legal concepts of perjury, fraud, and “exculpatory noes.” The parallel between lying and perjury is demonstrated most dramatically by the requirement— expressed by the Supreme Court’s much-maligned opinion in 13 Bronston v. United States —that perjury involve “literal falsity.” I defend the supposedly rigid rule laid down in Bronston by demonstrating its consistency with our intuitions regarding the relatively rigid formal structure and moral content of lying. I then turn to the relationship between deception and the fraud offenses. At early common law, the only kind of fraud that was criminalized was the narrowly defined offense of false weights and measures—against which ordinary prudence was considered insufficient to defend. All other business transactions were subject to a broad rule of caveat emptor. As commercial relations became increasingly complex, however, the rule of caveat emptor could not hold. The definition of what counted as criminal fraud in newer common law offenses such as false pretenses and forgery became increasingly flexible. In short, the paradigm of “lying” began to be replaced by the paradigm of “misleading.” Today, the definition of what constitutes deception in offenses like mail fraud, securities fraud, and the Model Penal Code’s theft by deception exhibits a much more flexible formal structure and moral content than ever could have been anticipated at common law. 12. For example, imagine that A was in New York continually from January 1- 4. If B asks A whether she was in New York on January 3, and A answers, “no, I was not in New York on January 3,” A has lied. But if A answers, “well, I was in New York on January 1,” A has led B into believing that she (A) was not in New York on January 3, but she has not lied. 13. 409 U.S. 352 (1973).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

161

The third parallel between the moral and the legal is that between falsely denying and “exculpatory noes.” Prior to its recent 14 repudiation by the Supreme Court in Brogan v. United States, the exculpatory no doctrine served as a defense in an important class of prosecutions for false statements under 18 U.S.C. § 1001. I argue that the pre-Brogan persistence of the exculpatory no doctrine in the lower federal courts—notwithstanding the lack of substantial statutory or constitutional support for it—reflects the same right of “self preservation” that underlies our moral attitudes towards false denials. In Part III of the article, I apply the moral and legal analysis developed earlier to what is surely the most intriguing case of deception in recent memory: namely, the Clinton sex-perjury scandal, 15 viewed now from the distance of more than two years. Through the examination of five representative statements alleged by Independent Counsel Kenneth Starr to be perjurious, I evaluate the argument made by Clinton and his attorneys that, no matter how misleading such testimony might have been, it did not constitute perjury. I conclude that, while some of Clinton’s testimony undoubtedly was literally false (and therefore likely to be perjurious), a good deal of it—including some of his most notorious circumlocutions—probably did not meet the legal definition of perjury.

14. 522 U.S. 398 (1998). 15. I quote from Richard Posner’s concise summary of the affair: The year-long political, legal, constitutional, and cultural struggle that began on January 21, 1998, when the world learned that Independent Counsel Kenneth Starr was investigating charges that President Clinton had committed perjury and other crimes of obstruction of justice . . . in an effort to conceal a sexual affair with a young White House worker named Monica Lewinsky, is the most riveting chapter of recent American history. The investigation culminated on December 19, 1998, in the impeachment of President Clinton by the House of Representatives for perjury before a grand jury and for obstruction of justice. . . . On January 7, 1999, the Senate trial of President Clinton began. Truncated and anticlimactic–indeed, a parody of legal justice–the trial ended on February 12, with the President’s acquittal. RICHARD POSNER, AN AFFAIR OF STATE 1-2 (1999) (footnotes omitted). Nearly two years later, on the eve of his final day in office, President Clinton entered into an agreement with Starr’s successor, Robert W. Ray, under which he would avoid the possibility of indictment in exchange for admitting that “certain of [his] responses to questions about Ms. Lewinsky were false,” and agreeing to surrender his law license for a period of five years. Neil A. Lewis, Exiting Job, Clinton Accepts Immunity Deal: Admits Testimony Was False—Long Legal Fight Ends, N.Y. TIMES, Jan. 20, 2001, at A1. According to Clinton’s statement, “I tried to walk a fine line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish this goal . . . .” Statements of Clinton and Prosecutor and Excerpts from News Conference, N.Y. TIMES, Jan. 20, 2001, at A14. Clinton’s eleventh hour statement did not, of course, identify which of his responses were false.

K-GREEN6

162

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

I then ask how Clinton could have survived the Lewinsky ordeal with such remarkably high approval ratings. While not disputing any of the conventional theories that have been offered (including the crucial point that the Starr investigation involved essentially private matters), I consider instead two theoretically deeper explanations. The first is that the public was able to intuit the moral difference between lying and merely misleading and that it was able to assess Clinton’s statements in light of that distinction. The second is that many of Clinton’s apparent falsehoods came in the form of false denials made “defensively,” in response to specific questions put to him, rather than “offensively,” on his own initiative. The public, I argue, is much less likely to forgive the second kind of denial than the first—a point that is as relevant to our assessment of Clinton’s denials during the Lewinsky affair as it may turn out to be to our assessment of his most recent denial of wrongdoing (made on the February 18, 2001 Op-Ed page of the New York Times) — namely, that “there was absolutely no quid pro quo” in his pardon of fugitive financier Marc 16 Rich.

I. Lying, Misleading, and Falsely Denying Like many distinctions we make in our everyday moral thinking and discourse, the distinctions we make among the concepts of lying, misleading, and falsely denying are far from sharp. Nevertheless, these concepts are widely used, easily recognized, and generally understood. There are good reasons for thinking that the distinctions among them are based on genuine moral differences. A. Conceptual Differences Between Lying and Other Forms of Deception

For purposes of this article, I shall use the term “deception” to refer generally to the communication of a message with which the communicator, in communicating, intends to mislead—that is, the communication of a message that is intended to cause a person to 17 believe something that is untrue. A few points about this definition are worth making. 16. William Jefferson Clinton, My Reasons for the Pardons, N.Y. TIMES, Feb. 18, 2001, § 4, at 13. (“The suggestion that I granted the pardons because Mr. Rich’s former wife, Denise, made political contributions and contributed to the Clinton library foundation is utterly false. There was absolutely no quid pro quo.”). 17. I have written previously about the concept of deception in Stuart P. Green, Deceit and the Classification of Crimes: Federal Rule of Evidence 609(a)(2) and the Origins of Crimen Falsi, 90 J. CRIM. L. & CRIMINOLOGY 1087 (2000), and Deception, in READER’S GUIDE TO THE SOCIAL SCIENCES (Jonathan Michie ed., 2001). My Reader’s Guide article offers an interdisciplinary survey of the literature on deception. Two wide-ranging works on deception published since that article appeared, which deserve mention here, are JEREMY CAMPBELL, THE LIAR’S TALE: A HISTORY OF FALSEHOOD (2001) and EVELIN

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

163

The first is that there is no deception unless the communicator intends to deceive. Untrue statements made by mistake are not deceptive, although they might cause a listener to be misled. For example, if Bill mistakenly tells Hillary that he was at home in Chappaqua on the night of February 3, when in fact he was in New York City, Bill might cause Hillary to be misled, but he has not deceived her. Second, there is no requirement that the message itself be untrue, since “literally true” statements (a concept that is discussed below) can obviously be deceptive. For example, if Bill is asked where he was on the night of February 3 and says he was “either in Chappaqua or in the City,” while knowing for certain that he was in the City, he has deceived his questioner into believing that he is unsure about his whereabouts on that night, even though his statement is in fact true. Third, deception can come in a variety of different forms. One can deceive by making a statement, asking a question, issuing a command, stating an opinion, displaying a picture, making a facial expression or gesture, or engaging in various other forms of verbal and non-verbal behavior. Kant gives a famous example: A deceives B into believing that he is headed on a journey by conspicuously packing a suitcase, and hoping that B will draw the 18 intended conclusion. Lying constitutes a subset of deception, involving a much narrower range of behavior. As generally used, the term lying refers to (intentional) deception that (1) comes in the form of a verifiable assertion, and (2) is “literally false.” By verifiable assertion, I refer to a statement that has a determinable truth value (i.e., is either true or false, although its truth value may not be known at the time the 19 assertion is made). Because they have no truth value, questions, commands, statements of opinion, greetings, apologies, christenings, and so forth are not capable of being lies, although they can certainly

SULLIVAN, THE CONCISE BOOK OF LYING (2001). For additional analysis of the definition of deception (and lying), see David Simpson, Lying, Liars and Language, 52 PHIL. AND PHENOMENOLOGICAL RESEARCH 623, 623 (1992) (deception “occurs when some organism believes it is in situation A, whereas in fact it is in situation B, and this belief or action may arise at least partly due to the action of some other organism”); Frederick A. Siegler, Lying, 3 AM. PHIL. Q. 128 (1966); Raphael Demos, Lying to Oneself, 57 J. PHIL. 588 (1960); Thomas L. Carson, On the Definition of Lying: A Reply to Jones and Revisions, 7 J. BUS. ETHICS 509 (1988); D.S. Mannison, Lying and Lies, 47 AUSTRALASIAN J. PHIL. 132 (1969). 18. IMMANUEL KANT, LECTURES ON ETHICS 226 (Louis Infield trans., 1963). 19. This definition is adapted from Jill Humphries, The Logic of Assertion and Pragmatic Inconsistency, 3 CAN. J. PHIL. 177, 179 (1973). For more on the theory of assertion, see Nathan U. Salmon, Assertion and Incomplete Definite Descriptions, 42 PHIL. STUD. 37 (1982).

K-GREEN6

12/1/01 6:07 PM

164

HASTINGS LAW JOURNAL

[Vol. 53

20

be misleading. The same is true of deceptive nonverbal acts like 21 Kant’s bag packer packing his luggage. What does it mean for a statement to be “literally false”? “Assuming that a sentence is not ambiguous, [its] literal meaning is derived, roughly speaking, by determining the meaning of the individual words . . . and applying the grammatical rules of the 22 language to those words.” The “literal meaning” of the sentence is to be distinguished from what the speaker intends by the sentence 23 when she utters it. A statement that is literally false is thus one that is false on its face, without reference to the speaker’s meaning. For example, the statement “in the final days of his term, President Clinton pardoned convicted financier Michael Milken,” is a literally false statement, even if the speaker has confused Marc Rich with Michael Milken and has intended to refer to the former. The difference between lying and non-lying verbal deception (which I shall henceforth refer to simply as “misleading”) is, therefore, essentially the difference between (1) asserting what one believes is literally false, and (2) leading the listener to believe something false by saying something that is either true or has no truth 24 value. For example, if Bill knows that he was in New York City on the night of February 3, but tells Hillary that he was “either in the City or Chappaqua,” Bill has deceived Hillary by leading her to believe that he either doesn’t know or is uncertain about where he was on that night. He has, in Evelin Sullivan’s phrase, led Hillary 25 “down the garden path” ; he has been deceptive, but he has not lied, 26 because his statement is literally true; he has “asserted too much.” Similarly, a person might deceive by “asserting too little.” Imagine that Bill is asked by Hillary whether he was in New York City last week. If Bill was in fact in the City every day last week, but answers, “well, I was in the City on Thursday of last week,” he has misled

20. The classic analysis of the way in which such utterances function in our communication is J.L. AUSTIN, HOW TO DO THINGS WITH WORDS 5-6 (1962). 21. On the other hand, it should be noted that a lie need not involve an utterance. One can lie, for example, by nodding or shaking one’s head in response to a question, using sign language, sending smoke signals, or making other gestures. Roderick M. Chisholm & Thomas D. Feehan, The Intent to Deceive, 74 J. PHIL. 143, 149 (1977). One can even lie by remaining silent in the face of certain kinds of questions. See discussion infra note 136. 22. Peter Meijes Tiersma, The Language of Perjury: “Literal Truth,” Ambiguity, and the False Statement Requirement, 63 S. CAL. L. REV. 373, 379-80 (1990). 23. Id. at 380 n.18. 24. Cf. Jonathan E. Adler, Lying, Deceiving, or Falsely Implicating, 94 J. PHIL. 435, 437 (1997). 25. SULLIVAN, supra note 17, at 81. 26. See Mannison, supra note 17, at 132.

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

165

Hillary into believing that he was in the City only one day last week, 27 but he has not lied, since he was, in fact, in the City on Thursday. B.

Caveat Auditor: The Moral Distinction Between Lying and Merely Misleading

Assuming a formal distinction between lying and merely misleading, we need next to ask whether there exists any moral 28 difference between the two concepts. Imagine that Bill, who was in Chappaqua from February 1-5, is asked about his whereabouts on February 3. Is there really any moral difference between his responding, “no, I was not in Chappaqua on February 3” (a lie), and the statement, “well, I was in Chappaqua on February 4” (a literally true statement that nevertheless creates the misleading impression that he was not in Chappaqua on February 3)? The fact is, people sometimes go to great lengths to avoid not only telling the truth, but also to avoid lying. If lying and merely misleading were morally equivalent, such behavior would be irrational. How can it be explained? 29 My claim is that, other things being equal, merely misleading is less wrongful than lying because what I call the principle of caveat auditor, or “listener beware,” applies to merely misleading but does not apply to lying. Like the principle of caveat emptor, which says that a buyer is responsible for assessing the quality of a purchase 30 before buying, the principle of caveat auditor says that, in certain circumstances, a listener is responsible for ascertaining that a 31 statement is true before believing it. 27. For further discussion of the concept of literal truth and the particular problem of “baldly understated” responses to quantitative inquiries, see infra notes 177-81 and accompanying text. 28. For purposes of this discussion, I will not attempt to explain why deception itself is morally wrongful. Rather, I assume that it is, and inquire only into the differences between the moral status of lying and merely misleading. On the moral aspects of deception more generally, see, for example, SISSELA BOK, LYING: MORAL CHOICE IN PUBLIC AND PRIVATE LIFE (1978); CHARLES FRIED, RIGHT AND WRONG 54-78 (1978); Jane S. Zembaty, Aristotle on Lying, 31 J. HIST. PHIL. 7 (1993); Joseph Kupfer, The Moral Presumption Against Lying, 36 REV. METAPHYSICS 103 (1982); Neil MacCormick, What is Wrong with Deceit, SYDNEY L. REV. 5 (1982). 29. By restricting the claim in this manner, my intention is to anticipate the obvious objection that some lies, about relatively trivial subjects, are less morally wrongful than non-lying deception concerning more serious matters. In addition, I defer until later, see infra notes 37-44 and accompanying text, discussion of cases in which deception might be justified or excused. 30. The doctrine of caveat emptor is discussed infra note 90 and accompanying text, in connection with the development of English theft law. 31. The principle of caveat auditor also bears analogy to the tort law doctrine of comparative negligence, under which damages are apportioned between injurer and victim according to the parties’ relative fault in bringing about harm. See, e.g., John G. Fleming,

K-GREEN6

166

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

Lying involves the creation, and simultaneous breach, of a relationship of trust between a speaker and listener. As Charles Fried has put it: Lying is wrong because when I lie I set up a relation which is essentially exploitative. . . . Lying violates respect and is wrong, as is any breach of trust. Every lie is a broken promise [which] is made and broken at the same moment. Every lie necessarily implies—as does every assertion—an assurance, a warranty of its truth.32

By making an assertion to B, A tells B that she herself believes what she is saying. As a result, B is justified in putting her faith in A; B need not be on her guard or question A’s veracity. If A is mistaken about her assertion, then she is wholly responsible for B’s false belief. And if A’s untrue statement has been intentional, it is A who is wholly to blame. Merely misleading involves a very different dynamic. When A merely misleads B without making an assertion, she has not told B that she believes what she is saying is true (since what she is saying is neither true nor false). There is thus no warranty of truth that B 33 could rely on. Again, Kant’s bag packer provides a good example. If the bag packer lies and asserts that he is going on vacation, then he will be wholly responsible for the spectator’s false belief. But if the bag packer merely acts as if he is going on vacation, and his spectator draws the wrong conclusion from those actions, then the spectator will be partly responsible for his mistaken belief. The underlying idea, as explained by Jonathan Adler, is “that each individual is a rational, autonomous being and so fully responsible for the inferences Foreword: Comparative Negligence at Last—By Judicial Choice, 64 CAL. L. REV. 239 (1976); William L. Prosser, Comparative Negligence, 51 MICH. L. REV. 465 (1953); Gary T. Schwartz, Contributory and Comparative Negligence: A Reappraisal, 87 YALE L.J. 697 (1978). See also infra note 90. 32. FRIED, supra note 28, at 67; see also MacCormick, supra note 28, at 8 (describing lying as “special case of deceit,” which presupposes some “neighbourly” relationship between the liar and the person deceived). 33. Several philosophers have attempted to explain the moral difference between lying and non-lying deception in terms of rights and duties. See, e.g., Alasdair MacIntyre, Truthfulness, Lies, and Moral Philosophers, in 16 THE TANNER LECTURES 309, 337 (1995) (presenting Kant’s view that “my duty is to assert only what is true and that the mistaken inferences that others may draw from what I say or what I do are, in some cases at least, not my responsibility, but theirs”); Chisholm & Feehan, supra note 21, at 149, 153 (in telling a lie, “the liar ‘gives an indication that he is expressing his own opinion.’ And he does this in a special way—by getting his victim to place his faith in him”; “[I]f a person L asserts a proposition p to another person D, then D has the right to expect that L himself believes p. And it is assumed that L knows, or at least that he ought to know, that, if he asserts p to D, while believing himself that p is not true, then he violates this right of D’s. But analogous assumptions are not made with respect to all other types of intended deception.”). Although I would prefer to avoid talk of rights and duties in this context, such talk may ultimately be unavoidable in attempting to construct a full analytical account.

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

167

he draws, just as he is for his acts. It is deception, but not lies, that 34 requires mistaken inferences and so the hearer’s responsibility.” Lying and merely misleading can also be distinguished on the grounds that each tends to elicit a different set of reactive emotions, 35 and cause a different set of harms, in its victims. A victim who is deceived by a non-lie feels foolish and embarrassed, presumably because he believes he has contributed to his own harm by drawing unwarranted inferences from misleading premises. By contrast, a victim of lies is much more likely to feel “brutalized” (in Adler’s

34. Adler, supra note 24, at 444. Traditional Jewish and Christian ethics both recognize the moral distinction between lying and merely misleading. On the former, see NACHUM AMSEL, Truth and Lying, in THE JEWISH ENCYCLOPEDIA OF MORAL AND ETHICAL ISSUES 295 (1994): [In certain situations, an] out-and-out lie is forbidden, but if it is an ambiguous statement that can be construed as a partial truth, it is permitted. For example, when Samuel said he was coming to sacrifice animals [1 Samuel 16:7], that was indeed true, but it was not the entire truth, since it was a purpose of his trip (he did indeed sacrifice animals) but not the main purpose of the trip. . . . This is similar to the case of the bride. The final ruling is like Beit Hillel, that we must say to every bride that she is beautiful. This, too, is not a complete lie since every bride, no matter how ugly, is indeed beautiful – to her groom. Also, beauty need not reflect physical beauty, but might mean a beautiful personality, as in the expression a “beautiful person.” See also JOSEPH TELUSHKIN, JEWISH WISDOM: ETHICAL, SPIRITUAL, AND HISTORICAL LESSONS FROM THE GREAT WORKS AND THINKERS 58-64 (1994) (surveying Jewish approach to question of justified lying and deception). The Jesuits, moreover, seem to have espoused an even more aggressive doctrine of permissible non-lying deception, or equivocation. See LEO KATZ, ILL-GOTTEN GAINS: EVASION, BLACKMAIL, FRAUD, AND KINDRED PUZZLES OF THE LAW 29 (1996) (quoting BLAISE PASCAL, THE PROVINCIAL LETTERS 140 (A.J. Krailshaimer trans., 1967) (“‘One of the most embarrassing problems is how to avoid lying, especially when one would like people to believe something untrue. This is where our doctrine of equivocation is marvelously helpful, for it allows one to use ambiguous terms, conveying a different meaning to the hearer from that in which one understands them himself.’”)). For a contrary view—i.e., that the form of deception is irrelevant to its moral content, see T.M. SCANLON, WHAT WE OWE EACH OTHER 317-22 (1998). It should be emphasized, however, that simply because a distinction between lying and non-lying deception can be found in some Jewish and Catholic sources does not mean that the distinction is universally recognized, or that non-lying deception is generally condoned. Indeed, the traditional Yiddish proverb that “a half truth is a full lie” would seem to indicate a rejection of precisely the distinction that I have been seeking to draw. More importantly, it should be stressed that both Jewish and Catholic authorities place a very high value on truth-telling, and that they would permit deception only in the narrowest of circumstances. On the Jewish approach to deception more generally, see AMSEL, supra at 291-96. On the Catholic approach, see SULLIVAN, supra note 17, at 7780 (Jesuit doctrine of “equivocation” applies only when such deception is otherwise justified—for example, in order to avoid religious persecution). For more on the ethics of lying and deception in Christian thought, see infra notes 48 & 66. 35. I have previously discussed the role of the reactive emotions in making moral evaluations in Green, supra note 9, at 1594-98.

K-GREEN6

168

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

word) by some external force. What one feels when discovering one has been lied to is much like what one feels when one is subjected to 36 threats or coercion. Moreover, lying and merely misleading feel different not only to the victim, but also evoke different reactions in the perpetrator. One who lies is likely to feel a different degree, or at least different kind, of guilt than one who merely misleads. The nonlying deceiver will be much more able to rationalize his conduct than the liar—a fact that may explain why people go to such considerable lengths to avoid the need to lie. In arguing that lying is distinguishable from other forms of deception, I do not of course mean to suggest either that lying is always wrong or that lying is always worse than other forms of deception. A lie told to avoid some greater harm is not likely to be viewed as wrongful. And non-lying deception about a matter of real importance will be viewed as more wrongful than an outright lie about some trivial concern. Moreover, in some unusual cases, a “bald-faced” lie may actually seem less objectionable than other forms of deception—with all of their subterfuges, dissembling, and pretense. At this point, my claim is simply that there are real and articulable differences in moral content between lying and other forms of deception, and that, ceteris paribus, lying is more wrongful than merely misleading. C.

The Special Moral Status of Falsely Denying

Having distinguished in the foregoing section between lies and other forms of deception, I now want to introduce an additional moral category, which I refer to as “falsely denying.” My contention here is that we accord a distinct moral status to lies and other forms of deception that occur when a person falsely denies an accusation of wrongdoing. In particular, I want to suggest that, in some cases, we regard the false denial of accusations as morally “excused.” (1) Deception, Justification, and Excuse

In order to understand the special moral status of falsely denying, we need first to consider the familiar distinction between justification and excuse. Conduct that is justified is conduct that is right and good, or at least not wrong. Conduct that is excused, though itself morally wrong, is conduct for which the perpetrator 37 should not be punished or blamed. Thus, to say that a lie or other act of deception is justified is to say that it was the right thing to do in

36. Adler, supra note 24, at 435. 37. The classic discussion of excuse is J.L. AUSTIN, A Plea for Excuses, in PHILOSOPHICAL PAPERS 123 (1961).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

169

a given instance. To say that an act of deception is excused is to say that, though the act was bad, the deceiver should not be blamed for it. Under what circumstances might a lie or other deception be justified? Much of the literature on lying and deception deals with 38 just this issue. While almost everyone (save a Kantian) would agree that it is permissible to lie to protect an innocent human life, there is a wide range of opinion on questions such as whether and when it is justifiable for doctors to lie to their patients, political leaders to lie to 39 their constituents, and parents to lie to their children. Among legal scholars, there has been particular concern with the circumstances, if any, under which it is permissible for lawyers and police officers to lie 40 in the exercise of their duties. In addition, many people would agree that it is permissible to engage in certain kinds of trivial or white lies when such deception will serve, say, to avoid giving offense to others 41 or to maintain good social relations. The generally accepted consequentialist principle seems to be that it is permissible to lie or deceive in order to prevent some greater 38. See, e.g., BOK, supra note 28; Robert N. Van Wyk, When is Lying Morally Permissible? Casuistical Reflections on the Game Analogy, Self-Defense, Social Contract Ethics, and Ideals, 24 J. VALUE INQUIRY 155 (1990); Robert C. Solomon, Is it Ever Right to Lie? The Philosophy of Deception, CHRON. HIGHER ED., Feb. 27, 1998, at A60. 39. See, e.g., BOK, supra note 28; MacIntyre, supra note 33, at 318-23 (discussing the wide range of commonly held attitudes about when lying is permissible); Daniel Q. Haney, Study: Doctors Often Dishonest with the Dying, BATON ROUGE ADVOC., May 21, 2000, at B1. Kant seems to have taken the famously categorical view that lying is never justified, even to save an innocent life. See Immanuel Kant, On the Supposed Right to Lie from Altruistic Motives, in ETHICS 280 (Peter Singer ed., 1994). Perhaps Kant’s unusually hard line on lying may help explain his desire to distinguish lies from merely misleading, referred to supra note 18. For more on Kant’s theory of lying, see Christine M. Korsgaard, The Right to Lie: Kant on Dealing with Evil, 15 PHIL. & PUB. AFFAIRS 325 (Fall 1986); FRIED, supra note 28, at 69-78. 40. On lying by lawyers, see, for example, DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1988); Geoffrey M. Peters, The Use of Lies in Negotiation, 48 OHIO ST. L.J. 1 (1987); William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 GEO. J. LEGAL ETHICS 433 (1999); Alan Strudler, Incommensurable Goods, Rightful Lies, and the Wrongness of Fraud, 146 U. PA. L. REV. 1529, 1537-42 (1998); Gerald B. Wetlaufer, The Ethics of Lying in Negotiations, 75 IOWA L. REV. 1219, 1223 (1990); James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation, 1980 AM. B. FOUND. RES. J. 926. On lying by police, see, for example, Christopher Slobogin, Deceit, Pretext, and Trickery: Investigative Lies by the Police, 76 OR. L. REV. 775 (1997). 41. Your son wants to know what you thought of his violin solo, your mother-in-law asks your opinion of her new meatloaf recipe, your spouse asks what you think of his or her new outfit. Sometimes, in situations like these, the right thing to do is to lie. Such lies can serve as an element of tact or politeness that helps people to maintain good social relations with family, friends, and colleagues. For the Jewish view of white lies, see AMSEL, supra note 34, at 293-96. BOK, supra note 28, at 60-76, however, is quite critical of society’s tolerance for white lies.

K-GREEN6

170

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

harm from occurring. At the same time, however, we recognize the strong deontological pull of the rule against lying. The problem of justified lies stems from the clash between these two inconsistent 42 modes of moral thinking. In any event, the claim in these cases is typically that the person who lies or deceives has done the right thing—i.e., that he is justified in his action. Many writers have argued that, despite the prima facie rule against it, an individual is morally permitted—even required—to use deception when doing so could 43 prevent some greater harm. The contention that a lie is excused (rather than justified) takes a quite different form. Imagine that A, while having a gun held to his head by B, is forced to lie to C, who is on the other end of the telephone. A has done something wrongful; he has misled C, and he has done so intentionally; he has acted unjustifiably. But A has acted under duress. Though A’s act itself was wrongful, most of us would agree that he should not be blamed for it—that A’s conduct, in other 44 words, should be excused. 42. I have dealt previously with the conflict between deontological and consequentialist thinking in Stuart P. Green, The Challenge of Harmless Error, 59 LA. L. REV. 1101, 1101-02 (1999) (symposium foreword). 43. See sources cited supra note 38-43. 44. As a matter of criminal law, duress can serve as a defense only if the defendant reasonably feared immediate death or serious bodily injury which could be avoided only by committing the criminal act charged. In perjury cases, where the crime is generally committed in the relative safety of a courtroom, it is difficult to satisfy the requirement that the danger to the defendant be present, imminent, impending, or unavoidable. As a result, the defense of duress or coercion is usually ineffective in cases of perjury. See, e.g., Hall v. State, 187 So. 392, 408 (Fla. 1939) (jury charge requiring that, for coercion, danger must be real, present, imminent, and unavoidable); Bain v. State, 7 So. 408 (Miss. 1890); Hardin v. State, 211 S.W. 233, 237 (Tex. Crim. App. 1919); People v. Ricker, 262 N.E. 2d 456, 460 (Ill. 1970) (threat to perjurer was not sufficiently imminent); United States v. Nickels, 502 F.2d 1173 (7th Cir. 1974); Edwards v. State, 577 P.2d 1380, 1384 (Wyo. 1978). One exception is People v. Richter, 221 N.W.2d 429 (Mich. Ct. App. 1974). Defendant Richter’s cousin, Cook, escaped from prison with Richter’s assistance. The day after his escape, Cook threatened to kill either defendant or her daughter if they divulged any information concerning the escape. A grand jury was convened to investigate the escape. Under oath, the defendant denied having seen or aided Cook. At her subsequent trial for perjury, defendant admitted that she had lied, but maintained that she had done so under duress. The trial court held that, because three weeks had elapsed between the time of the threat and the time of the testimony, the threat was not sufficiently contemporaneous to create a legal defense to the crime charged. The appellate court disagreed and reversed the conviction. The court said: what constitutes present, immediate, and impending compulsion depends on the circumstances of each case. . . . Cook told defendant that if he was unable to kill her, his friends would. The fact that Cook was convicted later not only of firstdegree murder but conspiracy to commit murder offers some indication that this was more than an idle threat. Given this threat, a jury might find that the compulsion under which defendant operated was present, immediate, and impending and fostered a well-grounded apprehension of death or serious bodily

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

171

(2) The Morality of False Denials

Most people would agree that it is a virtue to accept responsibility for one’s wrongdoing. We teach our children that it is better to admit to a wrongful act than to cover it up by lying; indeed, one of our great national myths is that of George Washington and the 45 cherry tree. Most religious thought, as well, regards repentance as a 46 Even in our criminal centrally important concept and practice. justice system, we put considerable value on the role of contrition and remorse, recognizing that they serve important moral, social, and 47 psychological ends. Nevertheless, the fact is that people often do fail to accept responsibility for their wrongful acts. Sometimes they do so by remaining silent. Other times they do so by falsely denying the accusations that are made against them or by engaging in acts of deception to avoid detection. Imagine that B asks A about some wrongdoing in which A has engaged, and A responds with a false denial. How should we judge A’s conduct? The answer is not likely to be simple: it will depend on a wide range of complex factors, including the circumstances of A’s wrongdoing, the nature of the relationship between A and B, the form of A’s denial, the 48 consequences of his denial, and, perhaps, the basis for B’s suspicion. injury. Id. at 432. See also State v. Rosillo, 282 N.W.2d 872, 874 (Minn. 1979) (defendant could establish coercion defense to charges of perjury where he “fear[ed] a shot through a courthouse window”). 45. MASON L. WEEMS, THE LIFE OF WASHINGTON 11-12 (Belknap, 1962) (1800). See also Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671, 680 (1968) (“No parent would teach [a doctrine of selfincrimination] to his children; the lesson parents teach is that while a misdeed . . . will generally be forgiven, a failure to make a clean breast of it will not be.”). 46. Of course, different religions understand the role of repentance in different ways. Compare Luke 15 (Christian parable of Prodigal Son) with ABRAHAM ISAAC KOOK, RABBI KOOK’S PHILOSOPHY OF REPENTANCE (Alter B. Metzger trans., 1968) (expounding a Jewish philosophy of teshuvah). 47. See, e.g., Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. REV. 1801 (1999); Michael M. O’Hear, Remorse, Cooperation, and “Acceptance of Responsibility”: The Structure, Implementation, and Reform of Section 3E1.1 of the Federal Sentencing Guidelines, 91 NW. U. L. REV. 1507 (1997). 48. There is support for such an ad hoc approach, interestingly, in the Roman Catholic Catechism. See CATECHISM OF THE CATHOLIC CHURCH 596 (Libreria Editrice Vaticana trans., 1994) (catechism on Eighth Commandment, “Thou shalt not bear false witness against thy neighbor”) (emphasis modified): 2488. The right to the communication of the truth is not unconditional. Everyone must conform his life to the Gospel precept of fraternal love. This requires us in concrete situations to judge whether or not it is appropriate to reveal the truth to someone who asks for it. 2489. Charity and respect for the truth should dictate the response to every request for information or communication. The good and safety of others,

K-GREEN6

172

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

We can envision a small number of cases in which A’s false 49 denial might actually be justified. More often, though, A’s denial is likely to be unjustified, particularly if: (1) A’s prior wrongdoing was harmful, (2) B has a relationship of trust with A, (3) A could easily and without adverse consequences remain silent, or (4) exposure of A’s wrongful conduct might help alleviate some additional harm to a victim or facilitate some good, such as restitution. Nevertheless, the fact that A’s conduct is unjustified does not necessarily mean that it should not be excused. Although we admire people who take responsibility for their wrongful acts, we are nevertheless sympathetic to those who not only fail to do the virtuous thing but actually compound their wrongdoing by attempting to conceal it. The basis for this moral sentiment, I believe, is an implicit recognition of the right to self-preservation—a right not to cooperate with those who would seek to bring adverse consequences against oneself. Kent Greenawalt has referred to it as “a basic right to avoid very destructive consequences to [oneself] even if submission would 50 Although often associated with a serve the welfare of others.” narrow constitutional right “of silence,” the right of self-preservation is better understood as linked to a broader right against self51 incrimination. That the right to self-preservation might include a right to falsely deny seems particularly plausible in cases in which remaining silent in the face of accusatory questioning would be

respect for privacy, and the common good are sufficient reasons for being silent about what ought not be known or for making use of a discreet language. The duty to avoid scandal often commands strict discretion. No one is bound to reveal the truth to someone who does not have the right to know it. (Thanks to my colleague, Robert Pascal, for bringing this text to my attention.) 49. For example, imagine that: (1) A has engaged in some form of harmless or minor wrongdoing, (2) A is asked about his conduct by B, a busybody neighbor with whom A has only a fleeting acquaintance, (3) if A were to respond to B’s questions about his conduct by refusing to answer or by telling B that it is none of his business, A’s response would be construed as an admission of guilt and would be broadcast in A’s community, and (4) exposure of A’s wrongful conduct would cause harm to A or to A’s family or community. 50. R. Kent Greenawalt, Silence as a Moral and Constitutional Right, 23 WM. & MARY L. REV. 15, 29 (1981). The locus classicus concerning the right of self-preservation is THOMAS HOBBES, LEVIATHAN, ch. 14 (Michael Oakeshott ed., 1955). 51. On the moral right to self-preservation as it relates to the constitutional right against self-incrimination, see David Dolinko, Is There a Rationale for the Privilege Against Self-Incrimination?, 33 UCLA L. REV. 1063 (1986); Michael S. Green, The Privilege’s Last Stand: The Privilege Against Self-Incrimination and the Right to Rebel Against the State, 65 BROOK. L. REV. 627 (1999); Irene Merker Rosenberg & Yale L. Rosenberg, In the Beginning: The Talmudic Rule Against Self-Incrimination, 63 N.Y.U. L. REV. 955 (1988); William J. Stuntz, Self-Incrimination and Excuse, 88 COLUM. L. REV. 1227, 1254 (1988).

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

173

52

tantamount to admitting guilt. Indeed, to limit the right against selfincrimination to the right to remain silent simpliciter would be akin to saying that the right to life is a wholly passive right and does not 53 Thus, in entail the right to use force, actively, in its defense. Continental criminal practice, parties to a lawsuit were exempt from 54 prosecution for perjury on precisely these grounds. Lest I be misunderstood, however, let me reiterate that I am not contending that it is good that people fail to accept responsibility for their wrongdoing, or that contrition and remorse do not serve important ends. I would regard either contention as perverse. Nor, of course, am I suggesting that the self-incrimination clause of the Fifth Amendment gives one the legal right to lie in one’s defense. My purpose has been merely to suggest that we tend to view the false denial of accusations as morally distinct from other kinds of unjustified deception, and to offer an account of why that might be.

II. Distinguishing Between “Lying” Crimes and “Misleading” Crimes Having examined an array of key moral categories in the last section, we turn now to a corresponding collection of legal categories. The first category (the “lying crimes”) tracks the moral category of lying described above, and consists of perjury and false declarations. The second category (the “misleading crimes”) parallels the moral notion of merely misleading, and comprises fraud, false pretenses, forgery and counterfeiting, common law cheat, and larceny by trick. We shall also have occasion to talk about a third, “hybrid” category of crimes, which reflects attributes of both lying and misleading. The most significant of these is the crime of making “false statements,” found in 18 U.S.C. § 1001 and a host of kindred statutes. We can identify two basic distinctions between lying and misleading crimes. The first is that lying crimes (such as perjury) typically involve deception intended to obstruct the administration of 52. Although in the formal context of court proceedings jurors are instructed not to make adverse inferences from a defendant’s exercise of the right to remain silent, see James v. Kentucky, 466 U.S. 341 (1984), the fact is that, in our normal social dealings, one who remains silent in the face of an accusation often is presumed to be guilty. 53. I have previously dealt with the moral basis for the right of self-defense in Stuart P. Green, Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles, 1999 U. ILL. L. REV. 1, 18-24. 54. See MIRJAN R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE LEGAL PROCESS 130 (1986) (noting that “civil parties were actually exempt from liability for perjury in a great number of European jurisdictions. To impose on them the duty to tell the truth and thereby to harm their own interests was proclaimed to be inhumane, akin to a form of a moral torture, even though civil parties had also acquired the right to refuse to testify.”) (footnote omitted).

K-GREEN6

174

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

justice or government investigation or operations, whereas misleading offenses (such as fraud) generally involve deception aimed at misappropriating money or property. Each group of offenses thus involves a different kind of harm. The second difference is in the kind of deception involved. Misleading offenses tend to use a flexible, open-ended definition of deception, whereas lying offenses tend to impose more rigid criteria for what constitutes actionable deceit. Moreover, misleading and lying each involve a different kind of moral wrongfulness. My focus in this article is on this second distinction—the differences in the way each group conceptualizes the deception element. I show how the distinctions described in the previous section shape our legal rules, and, to a lesser extent, how these legal rules inform our moral understanding. A. Lying Crimes: Perjury and False Declarations

As interpreted by the courts, the federal perjury statute requires five basic elements: (1) an oath authorized by a law of the United States; (2) taken before a competent tribunal, officer, or person; and (3) a false statement; (4) willfully made; (5) as to facts material to the 55 hearing. The closely related crime of false declarations requires that a “false material declaration” be made knowingly, under oath, in a 56 proceeding “before or ancillary to any court or grand jury.” At common law, perjury was considered one of the most odious 57 of criminal offenses. Under the Code of Hammurabi, the Roman law, and the medieval law of France, the punishment for bearing false witness was death; in the colony of New York, punishment included 58 branding the letter “P” on the offender’s forehead. In recent studies of public attitudes toward crime (and putting aside for now the

55. 18 U.S.C. § 1621; United States v. Debrow, 346 U.S. 374 (1953). 56. 18 U.S.C. § 1623. The crime of false declarations differs from perjury in that it: (1) can be proved by means of showing inconsistent sworn statements, see id. at 1623(c); (2) does not require corroboration through the common law “two witness” and “direct evidence” rules; (3) contains a limited recantation defense, see United States v. Norris, 300 U.S. 564 (1937); (4) has a less demanding oath requirement, see Christoffel v. United States, 338 U.S. 84 (1949); (5) has a less demanding mens rea requirement; and (6) applies in a narrower range of proceedings, see Dunn v. United States, 442 U.S. 100 (1979). 57. Bennet L. Gershman, The “Perjury Trap,” 129 U. PA. L. REV. 624, 636 (1981). See also United States v. Carollo, 30 F. Supp. 3, 6 (W.D. Mo. 1939) (noting that, for centuries, perjury has been regarded as an offense involving “moral turpitude”—an act that offends the moral code of mankind even in the absence of a prohibitive statute); Comment, Perjury: the Forgotten Offense, 65 J. CRIM. L. & CRIMINOLOGY 361, 363 & n.37 (1974). 58. STATE OF NEW YORK, REPORT OF THE LAW REVISION COMMISSION, Legis. Doc. No. 60, 25-26 (1935).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

175

question of public opinion regarding the Clinton case), perjury 59 continues to be viewed as a particularly serious offense. The reason perjury has been viewed in this manner, I believe, is that it involves an aggregation of several significant forms of moral wrongfulness. First, it involves the breaking of an oath or promise to tell the truth (an element that is absent from both fraud and the offense of false statements). And what is broken is not just any 60 promise but a promise typically invoking God. Second, as I have suggested elsewhere, the moral wrongfulness of perjury derives in part from the fact that it involves a form of disobedience; in this sense, the moral content of perjury is similar to the moral content of crimes such as contempt, obstruction of justice, bribery, prison 61 escape, tax evasion, and draft dodging. My focus here, however, is on a third kind of moral wrongfulness entailed by the crimes of perjury and false declarations—namely, deception. My contention is that the particular kind of deception required for perjury and false declarations closely parallels the special kind of deception that constitutes “lying” in that it involves the dual requirement of an assertion and a literal falsehood. (1) The Requirement of an Assertion

Perjury and false declarations have consistently been interpreted as requiring an assertion, the truth or falsity of which can be 62 ascertained by relatively uncontroversial methods. Thus, most 59. See MARVIN WOLFGANG ET AL., U.S. DEPT. OF JUSTICE, NATIONAL SURVEY OF CRIME SEVERITY viii (1985) (“A person knowingly lies under oath during a trial” ranks as more serious than both “three high school boys beat a male classmate with their fists. He requires hospitalization” and “a company pays a bribe to a legislator to vote for a law favoring the company.”). For a discussion of the public’s views regarding former President Clinton’s alleged perjury, see infra note 185 and accompanying text. 60. See Gershman, supra note 57, at 636 (“Penal sanctions provide temporal punishment; violating an oath suggests ultimate punishment by a supernatural power.”); cf. SULLIVAN, supra note 17 (“The oath is a serious matter, not only in the JudeoChristian but, as we’ll see, in other systems of belief as well, and its violation is doubly serious because it involves not only telling a lie but a false appeal to a higher authority or concept—such as one’s father’s grave—in order to have that lie taken for the truth.”). The word “perjury” itself is derived from the Latin perjurium, which refers to the act of invoking a god to bear witness to the truth of a statement although the speaker knew the statement was false. 61. See Green, supra note 9, at 1612; see also United States v. Manfredonia, 414 F.2d 760, 764 (2d Cir. 1969) (“It is for the wrong done to the courts and the administration of justice that punishment is given” in cases of perjury). 62. The requirement of an assertion also arises in the context of Federal Rule of Evidence 801(c), which defines “hearsay” as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matters asserted.” This rule is meant to apply to direct statements of fact offered to prove the truth of the matter directly stated. See Paul S. Milich, Re-Examining Hearsay

K-GREEN6

176

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53 63

expressions of mere belief or opinion cannot constitute perjury. (The cases in which the witness states that he holds an opinion or belief that he does not in fact hold constitute an exception: in such cases, the existence or nonexistence of the belief or opinion is itself a matter of 64 material fact that is theoretically capable of verification.) (2) The Requirement of Literal Falsity

Under modern case law, it is clear that a statement constitutes neither perjury nor a false declaration unless it is found to be literally 65 false. Indeed, as Renaissance scholar Debora Shuger has explained, “[i]t was precisely to give witnesses and defendants a way out of the perjury trap that theologians distinguished between a lie and a 66 misleading or equivocal statement.” 67 The leading contemporary case is Bronston v. United States. Bronston was president of a movie production company that petitioned for bankruptcy. At a bankruptcy hearing, Bronston was asked, “Do you have any [Swiss bank accounts]?,” to which he responded “no”; and “Have you ever?,” to which he responded, “The 68 company had an account there for about six months, in Zurich.” The truth was that Bronston had had Swiss bank accounts for five Under the Federal Rules: Some Method for the Madness, 39 U. KAN. L. REV. 893, 900 (1991) (discussing various meanings of “assertion”). 63. Among the kinds of testimony that cannot constitute perjury are statements as to beliefs concerning (1) the cause of an accident, Trullinger v. Dooley, 266 P. 909 (Ore. 1928); (2) the effect of a contract or instrument, Goad v. State, 61 S.W. 79 (Tenn. 1900); and (3) one’s status as a principal or agent, Harp v. State, 26 S.W. 714 (Ark. 1894). 64. Annotation, Statement of Belief or Opinion as Perjury, 66 A.L.R.2d 791 (1959). 65. See John D. Perovich, Annotation, Incomplete, Misleading, or Unresponsive but Literally True Statement as Perjury, 69 A.L.R. 3d 993 (1976). It should be noted, however, that this has not always been the case. At common law, a witness could apparently be prosecuted for perjury if he believed that his sworn statement was false, even if it later turned out to be true. 3 EDWARDO COKE, INSTITUTES OF THE LAWS OF ENGLAND 166 (photo. reprint 1986) (1797); 2 SARAH N. WELLING ET AL., FEDERAL CRIMINAL LAW AND RELATED ACTIONS: CRIMES, FORFEITURE, THE FALSE CLAIMS ACT AND RICO 215 (1998). Indeed, the literal language of Section 1621, apparently reflecting the common law rule, contains no explicit requirement that the witness’ statement actually be false. Rather, it refers simply to statements that the witness “does not believe to be true.” 18 U.S.C. § 1621. the Tongue, SLATE (Sept. 14, 1999), at 66. Debora Shuger, Sins of http://slate.msn.com/Features/tongue/tongue.asp. Shuger goes on: Henry Mason, an Anglican priest writing in the early 17th century, points out that in traditional Protestant and Catholic ethics “if there be just cause for concealing of a truth,” one may use words in a “less known and common signification, and in another meaning than it is likely the hearers will understand them.” Id. 67. 409 U.S. 352 (1973). 68. Id. at 354.

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

177

years, but did not have any at the time of the trial, and so his first answer was correct. As for his second answer, had he said “no,” he would have been guilty of perjury. Instead, he gave a literally true answer to a question that had not been asked—namely, whether his company had ever had a Swiss bank account—which was misleading as an answer to the question actually asked. In overturning Bronston’s conviction, the Court held that the perjury statute is not meant to apply to: (1) statements that are literally true; (2) statements that are untrue only by “negative implication” (i.e., literally true, but evasive, answers); and (3) literally true but misleading or incomplete answers. Under the Court’s reasoning, although a witness’ testimony might be misleading, it is the responsibility of the questioning lawyer to probe until the truth can be uncovered. If the lawyer fails to do so adequately, the witness is not guilty of perjury. Like perjury, the crime of false declarations also requires literal 69 Consider, for example, the Fourth Circuit’s decision in falsity. United States v. Earp. During the course of his testimony before a grand jury, defendant, a member of the Ku Klux Klan, was asked whether he had ever burned a cross at the home of an interracial couple. He denied that he had. The truth was that he had attempted to burn a cross, but had fled before it was lit. The court, following Bronston, reversed his conviction on the grounds that defendant’s testimony, though obviously misleading, was nevertheless literally 70 true, and therefore not perjurious. The reasoning in each of these literal truth cases is strikingly similar to the argument offered regarding the moral status of lying. Recall that one of the features that distinguishes lying from evasion and related forms of linguistic and non-linguistic non-lying deception is that the latter afford the listener the opportunity for more precise 71 questioning, which bald-faced lies generally do not. This distinction applies a fortiori in the courtroom. A lawyer who fails to clarify evasive or nonresponsive statements from a witness bears even more responsibility for improper inferences than does a listener in everyday conversation. As Bronston put it: 69. See, e.g., United States v. Hairston, 46 F.3d 361, 375 (4th Cir. 1995); United States v. Reveron Martinez, 836 F.2d 684, 689 (1st Cir. 1988). 70. United States v. Earp, 812 F.2d 917 (4th Cir. 1987). Similar is the Sixth Circuit’s decision in United States v. Eddy, 737 F.2d 564 (6th Cir. 1984) (reversing conviction for false declarations in a case in which defendant, who had sought to become a Navy doctor, answered “no” to the question whether he had submitted a “diploma” and “official college transcript” from Ohio State University College of Medicine as proof of his qualifications, because the diploma and transcript submitted by defendant were, in fact, forgeries; defendant’s statement, though misleading, was held to be literally true and therefore not a false declaration). 71. See, e.g., THOMAS HILL, JR., Autonomy and Benevolent Lies, in AUTONOMY AND SELF-RESPECT 25, 41 (1991).

K-GREEN6

178

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

[I]t is the responsibility of the lawyer to probe; testimonial interrogation, and cross-examination in particular, is a probing, prying, pressing form of inquiry. If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with the tools of adversary examination.72

This is in accordance with the idea that perjury requires lying, and that the witness who makes an evasive or unresponsive, but literally true, statement has not lied, and therefore has not committed 73 perjury. Understanding Bronston in this manner also helps to explain why the Sixth Circuit was mistaken in its recent opinion in United States v. DeZarn, which creates a seemingly significant limitation on

72. Bronston, 409 U.S. at 358-59. 73. This is not to say, of course, that it will always be easy to draw a bright line between perjury and non-perjury or lying and other forms of deception. Consider an example given by Peter Tiersma, supra note 22, at 392 (suggesting that Bronston’s approach to literal truth is too simplistic because it fails to account for the different ways in which a witness’ answer might be unresponsive): Q: Why didn’t you come to work yesterday? A: I was sick. Suppose that the fact is that I felt wonderful and went fishing, that I drank too much beer during the course of the afternoon, and that by ten o’clock that evening I was sicker than a dog. My statement that I was sick is, of course, literally true, but the hearer will interpret my response . . . as an answer to the question, as I well know and must in actuality have intended or at least allowed. Unless I misunderstood the question, I must have intended my response to induce the hearer to believe that my being sick was relevant to, or the reason for, my not going to work yesterday. Few would dispute that despite the “literal truth” of my response, I communicated something false. Tiersma then argues that it: would be extremely problematic to have Bronston’s literal truth rule apply to instances such as these. A large part of the rationale underpinning the Bronston holding was that when a witness evades, the questioner has the duty to bring that witness back to the mark. But this is impossible in cases of superficial responsiveness, where the questioner cannot be expected to know that the witness is being evasive. It seems evident that if the questioner cannot reasonably determine that a reply is not responsive, the need for further probing cannot be anticipated. As a result, a superficially responsive reply, even though literally truthful, should constitute a false statement. It seems to me that there are two possible rejoinders to Tiersma. The first is that the notion of literal truth is more complicated than he acknowledges. Whether the statement was literally true can only be determined in the context of the question that was asked. The speaker was saying, in effect, the reason he didn’t come to work yesterday was that he was sick. It is far from clear that this statement was in fact literally true. The second is that Tiersma assumes too much when he says that “the questioner cannot be expected to know that the witness is being evasive.” In a case in which the reason for the respondent’s absence is material, one would expect a competent questioner to ask a number of followup questions, such as: “What was the nature of your illness?,” and “Was your illness the only reason you didn’t come to work yesterday?”

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

179

Bronston.74 Defendant DeZarn was prosecuted for perjury after being questioned, under oath, by Robert Tripp, a staff member in the office of the Army’s Inspector General, regarding DeZarn’s connection to alleged violations of the Hatch Act, which prohibits the improper solicitation of government employees (in this case, members of the Kentucky National Guard) in political campaigns. DeZarn had been present at two parties organized around a horse racing theme: a “Preakness Party” in 1990, and a “Belmont Stakes” party in 1991. Only the 1990 party involved any political fund-raising. Although Tripp apparently meant to ask DeZarn about the events surrounding the 1990 party, he mistakenly asked him whether there had been any political fundraising activity at the “1991” party. DeZarn, undoubtedly aware of Tripp’s mistake, and seizing on the opportunity it created, answered “[a]bsolutely not,” he was “not 75 aware” of any fundraising at the party. In so doing, DeZarn made a literally true, but apparently misleading, statement. The Court of Appeals—mistakenly, in my view—upheld DeZarn’s conviction for perjury, reading the Bronston literal truth rule narrowly to apply only when a defendant responds to a question 76 with an nonresponsive answer. Since defendant’s answer in this case was responsive, the court viewed it as distinguishable from the nonresponsive (and therefore nonperjurious) answer given in the Bronston case. Why did DeZarn read Bronston in this narrow way? According to DeZarn, unresponsive answers (like those in Bronston) are “unique,” because they require “speculation” by the fact-finder as to what they imply. As a consequence, unresponsive answers allow no 77 “finding beyond a reasonable doubt that [an] answer is untruthful.” By contrast, DeZarn says, “when . . . the answer given is responsive to the question asked and ‘it is entirely reasonable to expect a defendant to have understood the terms used in the question,’” the literal truth 78 defense should not apply. The DeZarn opinion has been celebrated as “nudg[ing] federal 79 criminal law closer to everyday morality.” In reality, however, it did 74. 157 F.3d 1042 (6th Cir. 1998). 75. Id. at 1045. 76. Recall that Bronston responded to the question, “Do you have any bank accounts in Swiss banks” by stating, “the company had an account there for about six months,” whereas DeZarn responded to the question, did the 1991 party involve “political fundraising activity,” by stating, “absolutely not.” Bronston’s answer was unresponsive; DeZarn’s was not. 77. DeZarn, 157 F.3d at 1048. 78. Id. (quoting United States v. Slawik, 548 F.2d 75, 86 (3d Cir. 1977)). 79. Recent Case, Criminal Law—Perjury—Sixth Circuit Sustains Perjury Conviction for Answer to Question with Mistaken Premise —United States v. DeZarn, 157 F.3d 1042 (6th Cir. 1998), 112 HARV. L. REV. 1783, 1783 (1999).

K-GREEN6

180

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

just the opposite. By reading the literal truth rule in this restrictive manner, DeZarn tends to blur the distinction in everyday morality between lying and merely misleading. If anything, the questioner in DeZarn bore even more responsibility for being misled than the questioner in Bronston. In Bronston, the questioner asked the right question, but failed to seek a follow-up clarification of the answer. In DeZarn, the questioner asked the wrong question. A witness who fails to respond to a question the questioner meant to ask, instead of the one he did ask, certainly cannot, in any “everyday morality” sense of the term, be said to have lied. Nor should he be said to have DeZarn is wrongly decided because the committed perjury. distinction it implies between literally true, responsive testimony and literally true, nonresponsive testimony is one without any real moral significance. In light of such difficulties, it should not be surprising that the influence of DeZarn has been rather limited. Despite the initial enthusiasm about it expressed in a student Harvard Law Review 80 81 note, the case has been cited only rarely by the courts, and the distinction between literally true, misleading, and responsive testimony, on the one hand, and literally true, misleading, and nonresponsive testimony, on the other, seems to have had little resonance. In the end, DeZarn may turn out to be nothing more than a theoretical dead end. (3) Responses to Ambiguous Questions

Closely related to—really, an implication of—the literal falsity rule is the principle that ambiguous questions cannot produce perjurious answers. That is, when there is more than one way of understanding the meaning of a question, and the witness has answered truthfully as to his understanding, he cannot be held liable for perjury. The leading case is the District of Columbia District 82 Court’s opinion in United States v. Lattimore, in which a witness was 80. Id. The approach in DeZarn also seems to have been endorsed in POSNER, supra note 15, at 49; Stephen Gillers, The President’s “Accurate Lies”: The Legal World of Oxymorons, L.A. TIMES, Aug. 30, 1998, at M1; and Stephen Gillers, A Time of Trial: From the Same Set of Facts: A Tale of Two Stories, L.A. TIMES, Jan. 17, 1999, at M1. 81. The case has been cited five times, twice by the Sixth Circuit, and once each by the Third and Seventh Circuits and California Court of Appeals. Twice it has been cited for propositions entirely unrelated to the Bronston issue. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999); United States. v. Buckley, 192 F.3d 708, 710 (7th Cir. 1999). Once it was cited in a case involving a statement that was literally false. United States v. Radford, 2001 WL 857192, at *5 (6th Cir. June 19, 2001). In another case, it was cited along with Bronston for “comparison.” United States v. Serafini, 167 F.3d 812, 822-23 (3d Cir. 1999). In a final case, DeZarn was distinguished on its facts. People v. Bishop, 2000 WL 520878, at * 34 (Cal. App. Mar. 13, 2000). 82. 127 F. Supp. 405 (D.D.C. 1955).

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

181

questioned before a Senate Subcommittee about his ties to the Communist party. The witness was asked whether he was a “follower of the Communist line” and whether he had been a “promoter of Communist interests.” He answered “no” to both questions, and was subsequently indicted for perjury. In dismissing the charges, the court stated that “‘follower of the Communist line’ is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered 83 as testimony.” The applicability of the ambiguous question rule is particularly important in cases in which a witness faces a compound question or its functional equivalent. Consider, for example, the Ninth Circuit’s decision in United States v. Sainz. Defendant, a border patrol inspector for the Immigration and Naturalization Service, was charged with making a false declaration before a federal grand jury. During the course of his testimony, the defendant was asked a series of questions regarding his duties at an INS border station. The following colloquy formed the basis for the charge: Q: Have you ever failed to follow your agency’s procedure in running license plates of cars coming into the United States to determine whether or not they were listed as suspicious narcotics vehicles? A: No, sir.84

The government contended that this response was perjurious because, on two separate occasions, automobiles had traveled through defendant’s lane and defendant had failed to enter their license plate numbers into the INS computer. In reversing defendant’s conviction, the Ninth Circuit explained that the term “procedure” was ambiguous, and in fact had been used by the questioner to refer to the practice of both routing entering traffic as well as placing a driver’s documents in a cone on top of the 85 entering vehicles. Moreover, the prosecutor’s question presented “two distinct alternative questions within one compound question”: first, whether defendant always followed the discrete steps necessary 86 to “run” plates through the computer; and second, whether defendant failed to “run” license plates for the specific purpose of 87 aiding in the importation of controlled substances while on duty. In 83. Id. at 409-10. 84. 772 F.2d 559, 561 (9th Cir. 1985). 85. Id. at 563. 86. “For example,” the court pointed out, “this question might be probing whether the defendant ever negligently or intentionally input incorrect information into the computer.” Id. 87. As the court pointed out, “the prosecutor had preceded this question with three

K-GREEN6

182

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

light of the ambiguity in the prosecution’s questioning, the court held, defendant’s conviction could not stand. The concerns expressed by cases like Lattimore and Sainz are congruent with those expressed in Bronston. As Sainz put it: “Precise questioning is imperative as a predicate for the offense of perjury.” A witness cannot be forced to guess at the meaning of the question to which he must respond upon peril of perjury. . . . The perjury statute and its goal of truth in our system is served by fostering truthful answers to precise questions, not by penalizing 88 unresponsive answers to unclear questions.

Once again, the principle of caveat auditor applies. One who asks an ambiguous question cannot expect an unambiguous answer; one who answers an ambiguous question with a statement that may be misleading cannot be said to have lied. B.

Crimes of Misleading: Fraud and Theft by Deception

In contrast to perjury and false declarations—which, as we have seen, require both an assertion and literal falsity—offenses such as fraud, false pretenses, and the Model Penal Code’s theft by deception 89 Under modern reflect a more flexible concept of deception. criminal law, literally true but misleading assertions, misleading statements expressing mere beliefs and opinions, and various forms of misleading nonverbal conduct can all provide a predicate to prosecution for fraud and related offenses. (1) Common Law Misleading Offenses: Common Law Cheat, Forgery, False Pretenses, and Larceny by Trick

In order to understand the role of deception in modern offenses such as fraud, false pretenses, and theft by deception, it will be helpful to view these offenses in historical context. Although theft offenses today reflect a broad concept of deception, this was not always the case. Initially, the role of deception in theft law was limited to a

substantially identical questions as to the defendant’s direct or indirect involvement in the importation of controlled substances while on duty.” Id. 88. Id. at 564 (quoting Bronston v. United States, 409 U.S. 352, 362 (1973)). 89. The Supreme Court in Bronston noted this explicitly when it said: [Perjury] is not to be measured by the same standards applicable to criminally fraudulent or extortionate statements. In that context, the law goes “rather far in punishing intentional creation of false impressions by a selection of literally true representations, because the actor himself generally selects and arranges the representations.” In contrast, “under our system of adversary questioning and cross-examination the scope of disclosure is largely in the hands of counsel and presiding officer.” 409 U.S. at 358 n.4 (quoting MODEL PENAL CODE § 208.20, cmt. (Tentative Draft No. 6, 1957)).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

183

narrowly defined set of circumstances. It was only slowly that this role broadened. At early common law, one who obtained title to another’s property by force or stealth was guilty of robbery or larceny, respectively, but one who obtained title to another’s property by deception was generally held not to have committed a crime. In such 90 cases, the doctrine of caveat emptor prevailed. There was, however, an important exception to the general rule of caveat emptor —namely, the offense of common law cheat, which consisted of fraud perpetrated by means of some false token, typically 91 false weights or measures. The rationale for such an exception was 90. See Regina v. Jones, 91 Eng. Rep. 330, 330 (1703) (Holt, C.J.) (“[W]e are not to indict one for making a fool of another.”); WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 344 (6th ed. 1777) (“[It] is . . . needless to provide severe laws for such mischiefs, against which common prudence and caution may be a sufficient surety.”); ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 289 (3d ed. 1982) (“[A] person who deprived another of his property by force or stealth was regarded by all as a very evil person, but he who got the better of another in a bargain by means of falsehood was more likely to be regarded by his neighbors as clever than as criminal.”); Peter Alldridge, Sex, Lies and the Criminal Law, 44 N. IRELAND LEGAL Q. 250, 265-67 (1993) (contrasting treatment of deception in criminal law concerning obtaining of property with that concerning the obtaining of sexual access). It is interesting to note, however, that Talmudic law, in contrast to the English common law, seems to have treated the thief more severely than the robber. ADIN STEINSALTZ, THE ESSENTIAL TALMUD 156 (1976) (“[T]he robber is preferable to the thief since he acts openly, and his attitude toward God, in transgressing against his commandments and committing a robbery, is equal to his attitude toward his fellow men, from whom he steals openly, without fear or shame. The thief, on the other hand, demonstrates that he fears men more than he fears God, since he hides himself from his fellow men but not from the Almighty; he therefore deserves [greater punishment].”). In some respects, the attitudes that underlay the common law doctrine of caveat emptor were analogous to the attitudes that underlay the rule of contributory negligence in the common law of torts. As Joel Feinberg has put it: [I]f an accident victim’s own negligence, no matter how slight compared to that of a second party, was a causal factor without which the accident would not have occurred, then he is not entitled to a penny of compensation from the second party for his injuries even though the second party luckily was unscathed. Similarly, a dupe is himself negligent, according to the prevailing assumption, for having assumed risks on the word of a [deceiver], so he cannot complain afterwards of being badly used. “He has no one to blame but himself,” we say, even though the other was at fault too. When we believe that ordinary prudence would have sufficed to protect one party from the mendacity of another, we sometimes opine that “anyone that gullible deserves to be swindled.” FEINBERG, supra note 1, at 286. See also supra note 31. 91. On the origins of common law cheat, see JEROME HALL, THEFT, LAW AND SOCIETY 40 (1935); 2 JOEL PRENTISS BISHOP, COMMENTARIES ON THE CRIMINAL LAW ch. 10, 77-94 (5th ed. 1872). In 1541, the scope of common law cheat was expanded by statute to apply not only to frauds committed upon the general public, but also to frauds of a more private nature. 33 Hen. 8, ch.1 (1541) (Eng.) made it a misdemeanor to falsely and deceitfully obtain, or get into his or their hands or possession, any

K-GREEN6

184

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

clear: unlike other forms of fraud, the use of false weights or false tokens was something against which common prudence could not adequately protect, it threatened the public as a whole, and to be 92 always on guard against it imposed serious costs. This explanation thus bears a striking resemblance to the reasoning used above to describe the difference between lying and other forms of deception: whereas most forms of deception can be guarded against by common prudence, lying typically cannot. Over time, however, this narrow definition of theft by deception could not stand. As commercial relations became increasingly complicated, society increasingly urbanized, and business entities more and more powerful, the principle of caveat emptor became harder and harder to sustain, and the definition of what constituted actionable deception was bound to become broader. The paradigm of lying thus began to yield to the paradigm of misleading. Forgery—defined as the fraudulent making or alteration of a writing having apparent legal significance—was made a crime in 93 England beginning in the early fifteenth century. The offense was initially restricted to royal documents, then expanded to sealed 94 documents, and finally to public documents generally. In forgery, the deception is found not in the content of the document; rather,

money, goods, chattels, jewels, or other things of any other person, or persons, by colour and means of any privy false token or counterfeit letter made in another man’s name, to a special friend or acquaintance, for the obtaining of money, &c. from such person. 33 Hen. 8, ch.1 (1541) (Eng.) Although the offense of common law cheat has mostly been superseded by subsequent, broader legislation, vestiges of it can be still be found in provisions like MODEL PENAL CODE § 224.7(1) (making it a misdemeanor, “in the course of business,” to use or possess for use “a false weight or measure, or any other device for falsely determining or recording any quality or quantity”). For a useful discussion of how false weights and measures and other forms of fraud are dealt with in Jewish law, see MEIR TAMARI, SINS IN THE MARKETPLACE 56-61 (1996). 92. See, e.g. Rex v. Wheatly, 97 Eng. Rep. 746 (K.B. 1761) (upholding dismissal of charges for common law cheat where defendant was alleged to have “falsely, fraudulently and deceitfully” sold and delivered to victim as 18 gallons of beer what was really only 16 gallons; reasoning that the case involved what was essentially a civil wrong, “an inconvenience and injury to a private person,” not an offense under the criminal law, which would involve the use of false weights and measures affecting “all or many of his customers” or which were used in the “general course of his dealing,” and which “common care and prudence are not sufficient to guard against”). 93. On the origins of the English law of forgery, see 3 JAMES FITZJAMES STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 180-87 (1883); J.W. Cecil Turner, “Documents” in the Law of Forgery, 32 VA. L. REV. 939 (1946). Under the broader Model Penal Code definition, a person commits forgery if, knowingly facilitating fraud or injury of another, the person makes, alters, or authenticates a writing that purports to be another’s without authorization to do so. MODEL PENAL CODE § 224.1. 94. See MODEL PENAL CODE § 224.1, cmt. 1 (1980).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

185

forgery involves deception about the genuineness of the document 95 itself. With the advent of the Industrial Revolution, the broadening of fraud offenses accelerated. The offense of false pretenses was added to the list of deception offenses in England in 1757, under a statute that made it a crime for any person to “knowingly or designedly” by false pretenses obtain title to “money, goods, wares or merchandizes” 96 from another person “with the intent to cheat or defraud.” Although significantly broader in scope than both common law cheat and forgery, false pretenses was still limited in that it required a false 97 representation of an existing fact, rather than merely a false promise, 98 99 opinion, or prediction. For example, “falsely stating that a gem has been appraised at $1,000 constitutes a false representation for purposes of false pretenses liability, but falsely stating that the gem 100 will appreciate in value over the next year does not.” 95. PAUL H. ROBINSON, CRIMINAL LAW 790 (1997). Note that, at common law, not every faked document constitutes a forgery. For example, if one wrote out the Gettysburg Address, simulating the handwriting and signature of Abraham Lincoln, and sold it to a collector of antique manuscripts, that would not be forgery, because the Gettysburg Address—unlike, say, a negotiable instrument, deed, mortgage, bill of lading, will, sales receipt, bond, contract, diploma, certificate of marriage, divorce decree, army discharge, or railroad ticket—does not have any immediate legal significance. PERKINS & BOYCE, supra note 90, at 416-17. Attempting to pass off a copy of the Gettysburg Address as the original, however, would constitute false pretenses. 96. 30 Geo. 2, ch. 24, § 1 (1757) (Eng.). 97. The evolution of the “existing fact” dogma of false pretenses is described in Arthur R. Pearce, Theft by False Promises, 101 U. PA. L. REV. 967, 968-78 (1953). Pearce advanced a strenuous argument against the then-prevailing common law doctrine which excluded false promises from the scope of false pretenses. He argued that such exclusion was based principally on historical accident, and that subsequent developments in federal fraud law (which has long included false promises within its scope) point towards a needed expansion of doctrine in the law of false pretenses as well. 98. The leading case of Regina v. Bryan, 7 Cox Crim. Cas. 312, 319 (Crim App. 1857), seems to carry this approach to extremes. D obtained money from P by representing that certain spoons were of the best quality, equal to Elkington’s A, and having as much silver as Elkington’s A. These statements were known by defendant to be false. In reversing the conviction, the court held that this was not false pretenses: “Whether these spoons . . . were equal to Elkington’s A or not, cannot be, as far as I know, decidedly affirmed or denied in the same way as a past fact can be affirmed or denied, but it is in the nature of a matter of opinion.” Id. But, as J.C. Smith points out, “[t]his can hardly be true . . . of the statement that the spoons had as much silver in them as Elkington’s A.” J.C. SMITH, THE LAW OF THEFT 91 (5th ed. 1984). 99. PERKINS & BOYCE, supra note 90, at 369-70. 100. KATHLEEN F. BRICKEY, CORPORATE AND WHITE COLLAR CRIME 119 (2d ed. 1995) (emphasis added). The idea was, first, that many opinions expressed by sellers of goods are merely “puffing,” and cannot be taken literally as fact. Second, there was a reluctance to treat a debtor’s breach of contract as the basis for a false pretenses prosecution, the explanation being that “the act complained of . . . is as consonant with ordinary commercial default as with criminal conduct. . . . Business affairs would be

K-GREEN6

186

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

In addition to false pretenses, English law also criminalized a separate offense known as larceny by deceit. At common law, larceny was defined as the trespassory taking of personal property from the possession of another. Because false pretenses was limited to cases involving the use of deception to obtain title to money or goods, it did not cover cases in which a defendant had used deception to obtain mere possession. The most famous example is Pear’s Case, in which defendant fraudulently rented a horse from a stable, 101 Because only possession of, intending from the outset to steal it. and not title to, the horse passed with the rental agreement, defendant could not be prosecuted for false pretenses. Instead, defendant was prosecuted for a newly created theft offense—namely, larceny by trick. This collection of common law misleading offenses illustrates two things. The first is the absence of any requirement of assertion. A charge of common law cheat, for example, would lie when a butcher misled a customer into believing that a slab of meat weighs more than it actually does by some action—say, placing an underweight slab on a 102 rigged scale. Likewise, as noted above, the crime of forgery consists not in the falsity of the statements contained in the document, but rather in the misrepresentation of the genuineness or authenticity of the document itself. False pretenses is also frequently committed without an assertion, as it was in the case in which defendant obtained credit from a shopkeeper by wearing an Oxford college cap and gown 103 to create the false impression that he was an Oxford student. As for larceny by trick, Pear’s Case itself demonstrates that no statement was necessary for the offense to be committed; it was enough that defendant acted as if he would return the horse. Second, unlike perjury, fraud and the other misleading offenses do not require a literal falsehood. This is most obvious in the context of cases such as Rex v. King, in which the defendant, a used car salesman, allegedly stated that the mileage shown on the odometer of a second hand car “may not be correct.” The court held that, though literally true, the statement falsely implied that the defendant did not

materially encumbered by the ever present threat that a debtor might be subject to criminal penalties.” Chaplin v. United States, 157 F.2d 697, 698-99 (D.C. Cir. 1946). 101. Rex v. Pear, 168 Eng. Rep. 208 (Cr. Cas. Res. 1779). 102. One can easily imagine the butcher saying, as he places a 3½ pound slab of beef on the rigged scale, “there’s four pounds for you, Mrs. Jones.” Although such a statement would undoubtedly be false, a false statement is obviously not an element of the offense. 103. Rex v. Barnard, 173 Eng. Rep. 342 (1837); Regina v. Robinson, 10 V.L.R. 131 (Cent. Crim Ct. 1884) (defendant in Barnard would have been guilty of false pretenses even if he had said nothing); see also SMITH, supra note 98, at 86-87. Indeed, even silence can constitute false pretenses when the non-speaker has a duty of disclosure. See, e.g., People v. Johnson, 150 N.Y.S. 331 (N.Y. Crim. Term 1914).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

187

know the odometer to be incorrect, and therefore constituted false 104 Similarly, a 1932 British court “sent Lord Kylsant to pretenses. prison because his steamship line had issued a prospectus that had truthfully stated its average net income for the past ten years and its dividends for the past seventeen, but had deliberately concealed the fact that its earnings during the first three of the ten years had been greatly augmented by World War I as compared with the seven lean 105 In sum, according to Wayne LaFave, a years that followed.” “statement which though literally true is nonetheless misleading because it omits necessary qualifications—the half-truth which can operate to deceive quite as effectively as the outright lie—constitutes a form of misrepresentation which, when done with intent to deceive, 106 ought to qualify as a false pretense.” 104. See SMITH, supra note 98, at 86. 105. LOUIS LOSS & JOEL SELIGMAN, FUNDAMENTALS OF SECURITIES REGULATION 848-49 (4th ed. 2001), citing Rex v. Kylsant, 1 K.B. 442 (Ct. Crim. App. 1932). According to Loss, under false pretenses or common law fraud, “[i]t is now quite clear that a halftruth is as bad as an outright lie.” Id. at 848. 106. WAYNE R. LAFAVE, CRIMINAL LAW 833 (3d ed. 2000). There is also another aspect of fraud law that should be mentioned here. There are usually said to be two kinds of fraud: fraud in the factum and fraud in the inducement. Fraud in the factum (which is relatively rare) occurs when a victim is deceived about the very fact that he is entering into a contractual agreement. For example, V (who has bad eyesight) is tricked into believing that the document he is signing is just a receipt, when it is actually a contract. Fraud in the inducement (the much more familiar form of fraud) occurs when the victim is deceived not about the existence of the agreement, but about its terms. For example, V is tricked into believing that the stone she is buying is a valuable diamond when in fact it is a rhinestone fake. See JOEL FEINBERG, HARM TO SELF 291-300 (1986); ROLLIN M. PERKINS, CRIMINAL LAW 856-61 (1957); ALAN FARNSWORTH, CONTRACTS § 4.10 (2d ed. 1990); Nuclear Elec. Ins. Ltd. v. Cent. Power & Light Co., 926 F. Supp. 428, 433 (S.D.N.Y. 1996). In most criminal law contexts, where the absence of consent is not an element of the crime, the distinction between fraud in the factum and fraud in the inducement is of no practical consequence. The defendant who tricks V into believing that she is signing a receipt when she is really signing a contract has engaged in a “scheme or artifice to defraud” just as surely as the defendant who has tricked V into believing that she is buying a valuable diamond. By contrast, in the case of sexual offenses, where the absence of consent is an element, the distinction between the two kinds of fraud may be quite significant. According to Anne Coughlin: The traditional approach holds that it is a crime to obtain sexual intercourse by fraud in only two narrow contexts. The first (and, apparently, most common) case of rape by fraud in the factum involves a man who obtains the sexual connection by deceiving the woman into thinking that she is submitting to a nonsexual act. The other tactic sometimes found to constitute rape by fraud in the factum involves a man who obtains intercourse by masquerading as the woman’s husband. All other types of misrepresentations that men use to elicit women’s sexual submissions are fraud in the inducement and provide no basis for a rape conviction. [For example,] “[i]t is not rape where a medical practitioner represents to a patient that coition is necessary for the treatment of her case, and she consents to connection with him, through a belief in his representations; for there is a consent to the act , though fraudulently obtained.”

K-GREEN6

188

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

(2) Modern Misleading Offenses: Mail Fraud, Securities Fraud, and Theft by Deception

Like their common law antecedents, the modern misleading offenses reflect a significantly more flexible approach to deception than crimes such as perjury and false declarations. Although they obviously can be committed by means of outright lies, literal falsity is seldom, if ever, required. The most prominent example of flexibility in approaching the requirement of deception is the federal mail fraud statute, originally enacted in 1872, which makes it a crime to use the mails to further a “scheme or artifice to defraud” or “for obtaining money or property by means of false or fraudulent pretenses, 107 representations, or promises.” Under this statute, the courts have repeatedly recognized that a statement need not be literally false to constitute fraud, as long as it is both material and made with intent to 108 Moreover, “deception need not be premised upon deceive. verbalized words alone. The arrangement of the words, or the circumstances in which they are used may convey the false and 109 deceptive appearance.” Anne M. Coughlin, Sex and Guilt, 84 VA. L. REV. 1, 19 & n.70 (1998) (quoting Note, 80 Am. Dec. 361, 366 (1861)). 107. Mail fraud is currently codified at 18 U.S.C. § 1341. The original mail fraud statute was codified at Rev. Stat. § 5480. There are, of course, numerous other fraud provisions in federal law, including 18 U.S.C. § 1343 (2000) (wire, radio, or television fraud), 18 U.S.C. § 371 (2000) (conspiracy to commit offense or defraud United States); 18 U.S.C. § 1344 (bank fraud); 18 U.S.C. § 157 (2000) (bankruptcy fraud); 18 U.S.C. § 1347 (health care fraud). The enormous literature on mail fraud includes the following: ANTHONY J. ARLIDGE, ET AL., ARLIDGE & PARRY ON FRAUD (2d ed. 1996); BRENDA L. NIGHTINGALE, THE LAW OF FRAUD AND RELATED OFFENCES (1996); Craig M. Bradley, Foreword: Mail Fraud After McNally and Carpenter: The Essence of Fraud, 79 J. CRIM. L. & CRIMINOLOGY 573 (1988); John C. Coffee, Jr., Modern Mail Fraud: The Restoration of the Public/Private Distinction, 35 AM. CRIM. L. REV. 427 (1998); Peter J. Henning, Maybe It Should Just Be Called Federal Fraud: The Changing Nature of the Mail Fraud Statute, 36 B.C.L. REV. 435 (1995); Ellen S. Podgor, Criminal Fraud, 48 AM. U. L. REV. 729 (1999); Jed S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 DUQ. L. REV. 771 (1980); Geraldine Szott Moohr, Mail Fraud Meets Criminal Theory, 67 U. CIN. L. REV. 1 (1998). 108. See, e.g., Lustiger v. United States, 386 F.2d 132, 136 (9th Cir. 1967) (“While the statements in the advertising materials may not have been literally false, taken as a whole they were fraudulently misleading and deceptive.”). On the other hand, not all literally false statements made with intent to deceive will necessarily constitute fraud, as demonstrated by the Second Circuit’s decision in United States v. Regent Office Supply, 421 F.2d 1174 (2d Cir. 1970) (rejecting application of mail fraud statute premised upon use of false pretenses in the preliminary stages of a sales solicitation). The most important factor is that the statement be material. In the words of the court in Regent Office Supply, it must be “directed to the quality, adequacy or price of goods to be sold, or otherwise to the nature of the bargain.” Id. at 1179. 109. Lustiger, 386 F.2d at 138 (citing Gusow v, United States, 347 F.2d 755, 756 (10th Cir. 1965)).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

189

The modern misleading offenses are even more flexible than their common law antecedents. They eliminate not only the requirements of assertion and literal falsity, but also the requirement that what is falsely represented be an existing fact. Again, mail fraud provides an excellent example. In the Supreme Court’s 1896 case of 110 Durland v. United States, the defendant was charged with making false promises to investors in his investment company. In rejecting defendant’s argument that the mail fraud statute reaches only “such cases as, at common law, would come within the definition of ‘false pretences,’” the Court made clear that the statute reflected a much broader conception of deception, which included “representations as 111 to the past or present, or suggestions and promises as to the future.” 112 The law of securities fraud has followed a similar pattern. Nowhere has the abandonment of the doctrine of caveat emptor been 110. 161 U.S. 306 (1896). See also Note, Whatever Happened to Durland?: Mail Fraud, RICO, and Justifiable Reliance, 68 NOTRE DAME L. REV. 333 (1992) (describing history of fraud law). 111. Durland, 161 U.S. at 312-14. Several qualifications need to be made here. The first is that the current mail fraud statute has both a “schemes to defraud” and “false pretenses” provisions. To the extent that a defendant is charged under the false pretenses prong only, he might be able to argue that a common law-like limitation on deception should apply. Cf. 2 SARAH N. WELLING, ET AL., FEDERAL CRIMINAL LAW AND RELATED ACTIONS: CRIMES, FORFEITURE, THE FALSE CLAIMS ACT AND RICO 11 (1998) (“Although the federal courts give the concept of affirmative misrepresentation a fairly broad interpretation, the experience under the bank fraud statute demonstrates [that] convictions that would have been upheld under the defraud prong may be reversed if they are brought only under the false pretenses prong.”). Second, there are a number of mail fraud cases that seem to construe the term “fraud” to apply to conduct that, strictly speaking, is not really fraud, such as breaches of fiduciary duty. See John C. Coffee, Jr., From Tort to Crime: Some Reflections on the Criminalization of Fiduciary Breaches and the Problematic Line Between Law and Ethics, 19 AM. CRIM. L. REV. 117 (1981). Third, while the Court has made clear that “fraud” means using deceit to obtain money or property, or deprive citizens of other “intangible property,” see Carpenter v. United States, 484 U.S. 19 (1987), it has also held that it does not consist of attempts to obtain money or property by means of threats or coercion. Thus, the mail fraud statute has been held not to apply to cases in which a defendant used the mails to communicate a threat of blackmail or a demand for ransom in a kidnapping. See Fasulo v. United States, 272 U.S. 620, 628-29 (1926) (an attempt to obtain money by intimidation does not involve “anything in the nature of deceit or fraud as known to the law or generally understood”). 112. See, e.g., Section 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q (2001) (making it “unlawful for any person in the offer or sale of any securities . . . (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser”); Rule 10b-5 of the SEC’s regulations, 17 C.F.R. § 240.10b-5 (2001), promulgated pursuant to the Securities Exchange Act of 1934, 15 U.S.C. § 78j (2001) (providing that it is unlawful, in connection with the purchase or sale of any security, to “(a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to

K-GREEN6

190

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

113

more explicit than in this context. In Lucia v. Prospect Street High Income Portfolio, Inc., for example, defendants issued a mutual fund prospectus containing a ten-year profit comparison of junk bonds and 114 United State Treasury notes. Although the ten-year period did in truth show that junk bonds had outperformed Treasury securities, the fact was that during the six years immediately preceding each fund’s public offerings, Treasury securities had outperformed junk bonds. The court concluded that a triable issue was presented as to whether the defendants had committed fraud: [T]he fact that a statement is literally accurate does not preclude liability under federal securities laws. “Some statements, although literally accurate, can become, through their context and manner of presentation, devices which mislead investors. For that reason, the disclosure required by the securities laws is measured not by literal truth, but by the ability of the material accurately to inform rather than mislead prospective buyers.”115

Finally, we can look to Model Penal Code Section 223.3, theft by deception, which provides that a person is guilty of theft if he “purposely obtains property of another by deception,” and which, in turn, defines “deceive” to mean “create[] or reinforce[] a false impression, including false impressions as to law, value, intention or other state of mind,” as well as certain cases in which the actor knowingly takes advantage of another’s misinformation, though he 116 may not have been responsible for disseminating it in the first place. As the Comments to Section 223.3 make clear, it is the “falsity of the impression purposely created or reinforced that is determinative, rather than the falsity of any particular representations made by the actor. Thus, deception may be accomplished by statements that are 117 literally true or that consist of a clever collection of half-truths.”

omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.”). 113. See, e.g., Basic Inc. v. Levinson, 485 U.S. 224, 234 (1988) (“We have recognized time and again, a ‘fundamental purpose’ of the various Securities Acts, ‘was to substitute a philosophy of full disclosure for the philosophy of caveat emptor and thus to achieve a high standard of business ethics in the securities industry.’”) (quoting SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186 (1963)). 114. Lucia v. Prospect Street High Income Portfolio, Inc., 36 F.3d 170 (1st Cir. 1994). 115. Id. at 175 (quoting McMahan v. Wherehouse Entm’t, Inc., 900 F.2d 576, 579 (2d Cir. 1990)). See also Donald C. Langevoort, Half-Truths: Protecting Mistaken Inferences by Investors and Others, 52 STAN. L. REV. 87 (1999) (discussing treatment of half-truths, misrepresentation, and nondisclosure in securities fraud cases). As described supra note 89, Bronston itself makes a similar point. 116. Model Penal Code § 223.3. 117. Id. § 223.3, cmt. 3(a).

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

191

Legislatures and courts have thus defined misleading offenses much more broadly and flexibly than perjury or false declarations. Not only do misleading offenses not require a literally false statement, they do not require any statement at all. They can be committed by means of deceptive conduct, pictures, even silences. C.

A Hybrid Offense: False Statements

Having considered both lying offenses (such as perjury) and misleading offenses (such as fraud), we can now turn our attention to the crime of making false statements, codified most prominently in 18 U.S.C. § 1001, as well as in numerous kindred provisions of federal 118 and state law. As we shall see, false statements law is a hybrid of 119 Some of these statutes are similar to lying and misleading rules. perjury, in that they require both an assertion and literal falsity. Others, like fraud, require neither. A final group, which includes Section 1001 itself, has sometimes been interpreted as perjury and other times as fraud—depending on the operative statutory provision at issue, the court presiding, and the underlying facts of the case. The sum total is a complex, chameleon-like body of law with few clear governing principles. (1) False Statements in Historical Perspective

A brief examination of the history of the false statement statutes helps explain the reason for their hybrid nature. The statutory 120 progenitor of Section 1001 was enacted in 1863. Entitled “An Act to Prevent and Punish Frauds Upon the Government of the United States,” it prohibited the filing of “false, fictitious, or fraudulent” 121 Passed in the midst of the Civil claims against the government. 118. E.g., 18 U.S.C. § 1014 (2000) (making it a crime to make a “false statement or report . . . for the purpose of influencing” various federal bank loan and credit agencies); 18 U.S.C. § 287 (2000) (making it a crime to make or present a claim to the United States Government knowing such claim to be “false, fictitious or fraudulent”); 18 U.S.C. § 494 (2000) (making it a crime, inter alia, to “falsely make[], alter[], forge[], or counterfeit[] any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States”). For a comprehensive listing of federal false statements statutes, see 3 KATHLEEN F. BRICKEY, CORPORATE CRIMINAL LIABILITY 314-19 (2d ed. 1991-94). 119. This hybrid nature is also reflected in the major commentaries on white collar crime. For example, Kathleen Brickey emphasizes the similarities between Section 1001 and perjury, see 3 BRICKEY, supra note 118, at 239-326, while Sarah Welling, Sara Beale, and Pamela Bucy emphasize its relation to fraud-type statutes (particularly fraud against the government), 1 WELLING, ET AL., supra note 111, at 505-28. 120. Act of March 2, 1863, ch. 67, 12 Stat. 696. 121. See Brogan v. United States, 522 U.S. 398, 412 (1998) (Ginsburg, J., concurring) (citing Act of March 2, 1863, ch. 67, 12 Stat. 696); Hubbard v. United States, 514 U.S. 695, 705 (1995).

K-GREEN6

192

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

War, the statute was a response to a “spate of frauds”—particularly, 122 procurement frauds—being committed on the U.S. Government. In 1918, this time at the end of the First World War, the statute was broadened slightly, to cover false statements made “for the purpose and with the intent of cheating and swindling or defrauding the 123 At this point in its Government of the United States.” development, the concept of deception in the false statements statute was virtually indistinguishable from the concept of deception found in 124 the various fraud-type statutes discussed above. Starting in the 1930s, the crime of false statements began to undergo dramatic changes. With the advent of the New Deal and the creation of numerous regulatory programs and agencies, selfreporting became an increasingly important element in compliance. The Government’s concern was no longer merely with the direct loss of property or money; it now had a strong interest in preventing the loss of information through inaccurate and untruthful reporting— most notoriously in connection with unreported shipments of “hot 125 oil.” In response to these concerns, Congress took several initiatives. First, it amended the precursor to Section 1001 to prohibit not just “false, fictitious, or fraudulent” claims against the government, but also “any false or fraudulent statements or representations” made 126 In addition, it began within the jurisdiction of the government. passing or amending various specialized false statements statutes that would apply in specific regulatory contexts. The result was to transform the crime of false statements into one that simultaneously reflects both the looser “misleading” and the more restrictive “lying” models.

122. United States v. Bramblett, 348 U.S. 503, 504 (1955). 123. Act of Oct. 23, 1918, ch. 194, § 35, 40 Stat. 1015, 1015. 124. See United States v. Cohn, 270 U.S. 339, 346 (1926) (statute limited to cases in which defendant has allegedly “cheat[ed] the Government out of property or money”). 125. Brogan, 522 U.S. at 412 (Ginsburg, J., concurring) (describing New Deal history of Section 1001: “[I]f regulated [industries] could file false reports with impunity, significant Government interests would be subverted even though the Government would not be deprived of any property or money.”). “Hot oil frauds” were schemes in which petroleum producers falsify shipping documents by stating that their in-state oil wells are producing a certain amount of oil, when in fact they are producing less oil and supplementing it with contraband oil purchased from out of state. United States v. Gilliland, 312 U.S. 86, 94-95 (1941); United States v. Yermian, 468 U.S. 63, 80 (1984) (Rehnquist, J., dissenting). 126. Act of June 18, 1934, ch. 587, § 35, 48 Stat. 996 (emphasis added); see also Gilliland, 312 U.S. at 93 (1934 amendment removed restriction to matters in which government has financial or proprietary interest).

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

193

(2) The Hybrid Nature of False Statements

In its current form, Section 1001 makes it a crime, within the jurisdiction of the United States Government, to (1) make a “materially false, fictitious, or fraudulent statement or representation,” (2) make false writings containing a “materially false, fictitious, or fraudulent statement,” or (3) “falsify, conceal, or 127 cover up by any trick, scheme, or device a material fact.” Although 128 the term “false claim” was deleted from the statute in 1948, the use of terms such as “fraudulent,” “falsify, conceal, or cover up,” and “trick, scheme, or device,” continue to be understood as signifying a broad, fraud-like conception of deception. At the same time, the use of the term “false statement” has been interpreted to connote a much narrower, perjury-like conception. In order to appreciate this hybrid nature of false statements law, we need to consider the requirements of both assertion and literal falsity. (a) False Statements and the Requirement of an Assertion

A good example of how the crime of false statements takes on the rigid contours of the lying offenses can be found in the Supreme 129 Court’s opinion in Williams v. United States, which involved a prosecution under 18 U.S.C. § 1014, making it a crime to “knowingly make[] any false statement” for the purpose of influencing the action of any federally insured bank. Defendant had allegedly engaged in a series of transactions usually characterized as “check kiting,” a scheme whereby credit is obtained by the exchange and passing of worthless checks between two or more banks. In rejecting the government’s contention that the defendant, by depositing a check that was not supported by sufficient funds, had made a “false statement,” the Court relied on the fact that: technically speaking, a check is not a factual assertion at all, and therefore cannot be characterized as “true” or “false.” Petitioner’s bank checks served only to direct the drawee banks to pay the face amounts to the bearer, while committing petitioner to make good the obligations if the banks dishonored the drafts. Each check did not, in terms, make any representation as to the state of petitioner’s bank balance.130

Had defendant been prosecuted for mail or bank fraud, rather than false statements, there is little question that his check kiting scheme would have been viewed as actionable, since one who draws a

127. 18 U.S.C. § 1001 (2000). 128. In 1948, the false claim language was moved into a separate provision, 18 U.S.C. § 287. See Act of June 25, 1948, §§ 287, 1001, 62 Stat. 698, 749. 129. 458 U.S. 279 (1982). 130. Id. at 284-85.

K-GREEN6

194

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

check on a bank is generally understood to be making a representation that he has sufficient funds in his bank account to 131 But since check kiting does not involve an cover the check. assertion, it does not constitute a false statement. Williams should thus be understood as consistent with the narrow “lying” approach to 132 false statements described above. A different situation arises in false statements cases involving defendants who give either no response at all or only an incomplete response to government questioning. Consider the case of thenGovernor George W. Bush’s response (or lack of response) to a 1996 jury questionnaire, which became something of an issue in the final days of the 2000 presidential campaign. In the questionnaire, Bush was asked to check whether he had ever been an accused, a complainant, or a witness in a criminal case. Despite the fact that he had been arrested on at least two occasions, and despite the instruction that “[t]his form must be completed and returned when reporting for jury duty,” Bush (or his agents) left the question 133 blank. Did Bush’s failure to respond constitute a false statement? What little case law there is seems to indicate that a person who has a duty to answer a question posed by a government official or form, and fails to do so, is guilty of making of a false statement. Typical of this view is the Fifth Circuit’s opinion in United States v. 131. See, e.g., United States v. Giordano, 489 F.2d 327 (2d Cir. 1973) (affirming conviction for bank fraud in scheme involving check kiting); United States v. Constant, 501 F.2d 1284 (5th Cir. 1974) (upholding mail fraud conviction for scheme involving check kiting). 132. Unfortunately, the courts have not always been clear about exactly what constitutes an assertion. Consider the Second Circuit’s decision in United States v. Worthington, in which a defendant was prosecuted under Section 1001 after submitting to the Internal Revenue Service a check printed with the name of a fictitious drawee bank. 822 F.2d 315 (2d Cir. 1987). In upholding his conviction, the Second Circuit wrote: The rationale of Williams—that drawing a check unsupported by sufficient funds is [not] a statement . . . is simply inapplicable . . . here. . . . Here, of course, the check contains the name of a drawee “bank,” which designates where the check may be presented for payment. Naming a bank is a representation that the bank upon which the check is drawn does in fact exist. Thus, unlike Williams, the assertion in the instant case constitutes a statement. Id. at 318. In this reasoning, the court clearly erred. Submitting a check printed with the name of a fictitious drawee bank, though certainly deceptive, does not constitute a statement, since it has no determinable truth value. If it constitutes any crime, it is probably forgery, see supra notes 93-95 and accompanying text, rather than false statements. 133. Wayne Slater & Pete Slover, Race Heating up in Homestretch: Bush Camp Tries to Stem DUI Fallout, Denies Misleading Answers on Arrest, DALLAS MORNING NEWS, Nov. 4, 2000, at 1A. Bush was arrested in 1966 for stealing a Christmas wreath from a Connecticut store in a “fraternity prank,” and again in 1976 for drunk driving. There were also allegations that, on a number of occasions, Bush had lied to, or misled, the media regarding the fact of these arrests. Id.

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

195

Mattox, in which defendant was prosecuted under 18 U.S.C. §§ 1001 and 1920 (making false statements in connection with federal 134 A Labor Department form worker’s compensation claims). required applicants to “report all employment during the past 12 months” and “account for the entire time, including periods of selfemployment or unemployment.” In response to one question, defendant wrote “N/A.” Another question he left blank. In rejecting defendant’s apparent argument that his response (or lack of response) did not constitute a statement, the court argued that “[s]ilence may be falsity when it misleads, particularly if there is a duty to speak. The evidence warranted the conclusion that Mattox had a duty to fill in the blank if he had been employed and that his failure to do so was equivalent to an answer, and a false one at 135 that.” Such reasoning seems to me mistaken. The mere fact that a person is under a legal duty to give a response does not necessarily 136 mean that her failure to do so constitutes a false statement. Indeed, 134. 689 F.2d 531 (5th Cir. 1982). 135. Id. at 533. See also United States v. Irwin, 654 F.2d 671, 676 (10th Cir. 1981) (upholding conviction under Section 1001 for submitting a federal grant application to the Economic Development Association and leaving a blank under the column marked “compensation already paid,” when in fact defendant had received compensation; “leaving a blank is equivalent to an answer of ‘none’ or a statement that there are no facts required to be reported.”); United States v. Olin Mathieson Chemical Corp., 368 F.2d 525, 526 (2d Cir. 1966) (nondisclosure or partial disclosure may constitute concealment under section 1001); United States v. Larson, 796 F.2d 244, 246 (8th Cir. 1986) (in nondisclosure cases, the Government must prove that the defendant had a legal duty to disclose); United States v. Dale, 140 F.3d 1054, 1056 (D.C. Cir. 1998); United States v. Anzalone, 766 F.2d 676, 682-83 (1st Cir.1985); United States v. London, 550 F.2d 206 (5th Cir. 1977); United States v. Private Brands, Inc., 250 F.2d 554 (2d Cir. 1957); MANUAL OF MODEL CRIMINAL JURY INSTRUCTIONS FOR THE DIST. COURTS OF THE EIGHTH CIRCUIT, § 6.18.1001A (Concealing a Material Fact from a Governmental Agency (18 U.S.C. § 1001)). In a leading Supreme Court case, United States v. Yermian, 468 U.S. 63, 65 (1984), defendant was charged with violating Section 1001 by, inter alia, “fail[ing] to disclose that in 1978 he had been convicted of mail fraud.” The Court, however, did not address the question whether a failure to respond constitutes a violation of the false statements statute. 136. I say “mere” fact because one can easily imagine a scenario in which it would be reasonable to construe a failure to give a response as a statement “no.” For example, if I say to my students, “please raise your hand if you did not do the homework for today,” the fact that A is one of several people who has not raised her hand can reasonably be understood as an assertion that she did do her homework. If in fact she did not do her homework and nevertheless did not raise her hand, we might think that she has lied. (Of course, it is also possible that she did not respond because she could not hear my question, was not paying attention, or perhaps wanted to question my authority.) Similarly, if a government form said, “please list all of your assets,” then it might well be reasonable to infer that one who left the appropriate space on the form blank would be making an assertion that he had no assets. My point, though, is that the mere fact that there is a legal duty to respond to a question does not tell us much about what can reasonably be inferred from a silence. Rather, we need to know more about precise context in which the question

K-GREEN6

196

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

the fact that a person is under a legal obligation to make a statement is no more relevant to the truthfulness of her statement than the fact 137 Here again, morality that she is under no such obligation. illuminates law. A person who refuses to answer a question that she is morally obligated to answer (say, a child who is asked a question by a parent) may be defiant and obstreperous, but she is not necessarily 138 mendacious. Similarly, while a witness who is subpoenaed to testify and refuses to do so may be guilty of contempt, and a party who declines to answer questions required on a government form guilty of failure to answer, neither should necessarily be guilty of perjury or 139 false statements. (b) False Statements and the Requirement of Literal Falsity

Another way in which the crime of false statements reflects the rigid “lying” approach can be observed in cases involving the literal falsity requirement. A majority of—though not all – courts have held that conviction for false statements requires a showing of literal falsity. A good example is the Eighth Circuit’s opinion in United 140 In 1972, defendant had personally guaranteed a States v. Vesaas. Small Business Administration loan made to a corporation formed by a group of his friends. After the corporation failed, the government obtained a default judgment against him. Defendant had held a number of stocks in joint tenancy with his mother, who died in August 1977. In November 1977, defendant was asked at a deposition if he “knew of any stocks, bonds, or other property owned by his deceased mother and himself in joint tenancy.” He answered “no.” Since it is legally impossible to be a joint tenant with a decedent, defendant’s response, though misleading, was literally true. Accordingly, the Eighth Circuit, following Bronston, reversed the 141 conviction. was asked. 137. False statement prosecutions frequently involve statements that were offered voluntarily. See, e.g., United States v. Kingston, 971 F.2d 481, 490 (10th Cir. 1992); United States v. Irwin, 654 F.2d 671, 678 (10th Cir. 1981). 138. At this point, it is worth distinguishing between refusing to provide a required answer and failing to do so. To the extent that the latter is more likely than the former to be understood as an assertion, see supra note 136, it is also more plausibly characterized as a “lie.” 139. For a prosecution for failure to file a required form, see, for example, United States v. McCarthy, 422 F.2d 160 (2d Cir. 1970) (upholding conviction for failure to file report under 29 U.S.C. § 432, regarding certain labor practices, where defendant filed a report but failed to list certain payments that were required to be listed). 140. 586 F.2d 101, 104 (8th Cir. 1978). 141. See also United States v. Diogo, 320 F.2d 898, 905 (2d Cir. 1963) (reversing conviction for false statements where defendant’s statements to immigration officials to the effect that he was the “spouse of” and “married to” an American woman were literally

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

197

In contrast to the rigid lying approach followed in Vesaas and elsewhere is the flexible deception formula adopted by the Second 142 Circuit in United States v. Stephenson. Stephenson was an Export Licensing Officer at the U.S. Department of Commerce. His duties included reviewing applications for federal approval to export hightechnology equipment from the United States abroad. In 1987, the Zamax Company sought a Commerce Department license to ship high technology medical equipment to China. Starting in midOctober 1987, Stephenson began pressing Zamax officials, including Wilson Chang, for a bribe to approve the license. During subsequent meetings, Chang, acting as an FBI informant, offered to pay Stephenson at least $35,000 for one of the required licenses. Several months later, Stephenson, fearing that he might be caught, went to Michael Dubensky, a Commerce Department Special Agent, and told him that he, Stephenson, “had received a bribe offer from a company in New York by the name of Zamax.” As a result of his statement to Dubensky regarding Chang’s offer, Stephenson was prosecuted under Section 1001. In his defense, Stephenson argued that his statement to Agent Dubensky—to the effect that he had a received a bribe offer from Zamax—was literally true, and therefore not actionable under Section 1001. In upholding Stephenson’s conviction, the court said 143 that, even if his statement were literally true, he would still be subject to prosecution under Section 1001. In so doing, the court rejected the literal truth defense, emphasizing the significance of the “falsifie[d], conceal[ed], or cover[ed] up” language in Section 1001, in apparent contrast to the perjury-like term, “false statement.” Unfortunately, the legislative history offers little explanation for why Congress made some false statements statutes perjury-like and

true, even if ultimately intended to mislead authorities about the true nature of his immigration status); United States v. Lozano, 511 F.2d 1, 5 (7th Cir. 1975) (similar); United States v. Gahagan, 881 F.2d 1380, 1383 (6th Cir. 1989) (reversing conviction for false statements where defendant, who was required to file financial report listing all of his assets, failed to report his ownership of a automobile, after transferring title to the vehicle to his girlfriend prior to his completion of the financial report; statement of assets was “literally and factually correct”). 142. 895 F.2d 867, 873 (2d Cir. 1990). 143. In fact, the court found that Stephenson’s statement was not literally true: “Based upon the evidence, the jury easily could have found that by his statement to Dubensky, Stephenson intended to communicate that he was an unwilling victim of a bribery scheme initiated and orchestrated by Chang. So construed, the statement becomes clearly false.” Id. at 874. This argument, however, is clearly specious. When Stephenson told Dubensky that he had received a bribe offer from Chang, the fact is that, no matter how misleading, he was saying something that was literally true. Stephenson’s statement was precisely analogous to the misleading, but literally true, statements made in cases such as Bronston, Earp, Eddy, and Vesaas, discussed supra notes 70 & 140 and accompanying text.

K-GREEN6

198

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

others fraud-like. Nor have the courts been helpful in explaining the difference. In large part, the fact that some false statements statutes provisions look like perjury and others like fraud seems to be a result of nothing more than historical accident. As explained above, however, there are good reasons for maintaining a clear distinction between those contexts in which a defendant has lied and those in which a defendant has merely misled. In light of that analysis, I would propose that legislatures and courts adopt the following approach: When a false statements statute is to be applied to a statement made in a formal or quasi-formal proceeding, in which a government agent has had the opportunity for follow-up questioning, such statute should reflect the attributes of perjury, including the requirement of literal falsity. When a false statement statute is applied to a statement made in informal proceedings, without the opportunity for “cross-examination,” it should function like fraud or false pretenses. Such an approach would bring much needed coherence and consistency into the law of false statements. D. False Statements Involving an “Exculpatory No”

In the previous three sections, we observed how the everyday moral concepts of lying and misleading find analogues in the legal concepts of perjury, fraud, and false statements. In this section, I want to explore an analogy between the moral concept of “falsely denying” and the legal doctrine of “exculpatory noes”—a doctrine that was widely recognized in the lower federal courts until its recent 144 repudiation by the Supreme Court in Brogan v. United States. Under the most common form of the exculpatory no doctrine, a statement that would otherwise violate Section 1001 was exempt from 145 First, it had to convey prosecution if it satisfied two conditions. “false information in a situation in which a truthful reply would have 146 incriminated the interrogee.” Second, it had to be limited to simple 144. 522 U.S. 398 (1998). 145. Among the variations in the exculpatory no doctrine, as developed in the lower federal courts, were the requirement that defendant be unaware that he is under investigation, that the nature of the government inquiry be investigative and not administrative, that the false statement not impair the basic functions of the government agency, that the statement be unrelated to a privilege or a claim against the government, that the statement be oral and unsworn, and that the statement be a response to an inquiry initiated by the government. See Tim A. Thomas, Annotation, What Statements Fall Within Exculpatory Denial Exception to Prohibition, Under 18 U.S.C. § 1001, Against Knowingly and Willfully Making False Statement Which is Material to Matter Within Jurisdiction of Department or Agency of United States, 102 A.L.R. FED. 742 (1991); Lauren C. Hennessey, Note, No Exception for “No”: Rejection of the Exculpatory No Doctrine— Brogan v. United States, 118 S. Ct. 805 (1998), 89 J. CRIM. L. & CRIMINOLOGY 905, 911 n.50 (1999). 146. Scott D. Pomfret, Note, A Tempered “Yes” to the “Exculpatory No,” 96 MICH. L.

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

199

words of denial (such as “no, I did not,” “none,” or “never”) rather 147 than more elaborate fabrications. If, for example, an FBI agent had asked a suspect whether he possessed drugs, and the suspect had falsely responded, “no, I do not,” the suspect would have been protected by the exculpatory no doctrine and could not have been convicted under Section 1001. Prior to 1998, a majority of the lower federal courts (seven of the nine circuits to consider the issue) had adopted some form of the 148 exculpatory no doctrine. The courts and commentators offered two basic arguments in favor of the doctrine. First, allowing defendants who utter exculpatory noes to be prosecuted under Section 1001 would be inconsistent with the purpose of the statute, which is to 149 criminalize only those acts that “pervert governmental functions.” Second, prosecution of false denials would violate the “spirit” of the Fifth Amendment, by placing a suspect in the “cruel trilemma” of admitting guilt (and incriminating himself in the underlying crime), remaining silent (and being held in contempt), or falsely denying guilt 150 (and facing prosecution for perjury or false statements). In Brogan, a majority of the Court rejected both of these arguments. In response to the first argument, Justice Scalia said that even if exculpatory noes do not actually thwart governmental functions, the Court has neither the power nor the desire to apply a construction that would limit “the unqualified language of a statute to

REV. 754, 755-56 (1997). To be incriminating, it would either have to support a conviction under a federal criminal statute or “‘furnish a link in the chain of evidence needed to prosecute.’” Id. at 756 (quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)). 147. Id. at 756-57. 148. Moser v. United States, 18 F.3d 469, 473-74 (7th Cir. 1994); United States v. Taylor, 907 F.2d 801, 805 (8th Cir. 1990); United States v. Cogdell, 844 F.2d 179, 183 (4th Cir. 1988); United States v. Tabor, 788 F.2d 714, 717-19 (11th Cir. 1986); United States v. Fitzgibbon, 619 F.2d 874, 880-81 (10th Cir. 1980); United States v. Rose, 570 F.2d 1358, 1364 (9th Cir. 1978); United States v. Chevoor, 526 F.2d 178, 183-84 (1st Cir. 1975), cert. denied, 425 U.S. 935 (1976). The only circuits to reject the exculpatory no doctrine were the Second, United States v. Wiener, 96 F.3d 35 (2d Cir. 1996), and the Fifth, United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994). 149. See, e.g., United States v. Gilliland, 312 U.S. 86 (1941) (Section 1001 is intended to criminalize only those statements that “pervert governmental functions”). Because exculpatory noes almost always occur in the context of investigatory or adversarial questioning, it is unlikely that any governmental function would be impaired in the manner contemplated by Congress. 150. Brogan v. United States, 522 U.S. 398, 404 (1998). A third argument, emphasized in Justice Ginsburg’s concurrence, is that the exculpatory no doctrine is necessary to eliminate the risk that Section 1001 will become an instrument of prosecutorial abuse—a means of “piling on” offenses, at times punishing the denial of wrongdoing more severely than the wrongdoing itself. Id. at 411-12 (Ginsburg, J., concurring). See generally Giles A. Birch, Note, False Statements to Federal Agents: Induced Lies and the Exculpatory No, 57 U. CHI. L. REV. 1273 (1990).

K-GREEN6

200

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53 151

the particular evil that Congress was trying to remedy.” Moreover, reasoned Scalia, “the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that [legitimate government] 152 function.” In response to the second argument, Scalia asserted, the Fifth Amendment gives suspects the right to remain silent, not to lie. Therefore, the Fifth Amendment is inapplicable to exculpatory 153 noes. As a matter of statutory and constitutional interpretation, Justice Scalia’s opinion in Brogan is surely correct. Neither the broad wording of Section 1001 nor its legislative history evidences any 154 plausible safe harbor for exculpatory noes. Petitioner’s suggestion that “the unqualified language of” Section 1001 should be used exclusively to combat “the particular evil that Congress was trying to remedy” is nothing more than wishful thinking. Moreover, Justice Scalia was undoubtedly right that, as a matter of constitutional law, the Fifth Amendment guarantees only the right to silence, not the right to lie. The interesting question, though, is this: How can we explain the fact that—notwithstanding the lack of textual, legislative, or constitutional support for it—seven of nine federal circuit courts, the Department of Justice, and numerous other courts and 155 commentators, over the course of some 36 years, were willing to adopt some version of the exculpatory no doctrine? Ironically, I believe, it is precisely the lack of credible legal support for the doctrine that makes its persistence so telling.

151. Brogan, 522 U.S. at 403. 152. Id. at 402 (emphasis omitted). 153. Id. at 405. Scalia dismissed out of hand the contention that silence is an “illusory” option because a suspect may fear that his silence will be used against him later, or may not even know that silence is an available option. 154. In fact, Congress expressly considered, but never adopted, a provision that would have established a “defense to a prosecution for an oral false statement to a law enforcement officer” if “the statement was made during the course of an investigation of an offense or a possible offense and the statement consisted of a denial, unaccompanied by any other false statement, that the declarant committed or participated in the commission of such offense.” S. REP. No. 97-307, at 407 (1981), quoted in Brogan, 522 U.S. at 417 (Ginsburg, J., concurring). 155. The earliest appellate court decision endorsing the exculpatory no doctrine was Paternostro v. United States, 311 F.2d 298, 305 (5th Cir. 1962), which ultimately was overruled by United States v. Rodriguez-Rios, 14 F.3d 1040 (5th Cir. 1994) (en banc). See also UNITED STATES ATTORNEY’S MANUAL ¶ 9-42.160 (Feb. 12, 1996) (“It is the Department’s policy not to charge a Section 1001 violation in situations in which a suspect, during an investigation, merely denies guilt in response to questioning by the government.”).

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

201

The exculpatory no doctrine survived, and flourished, because it is consistent with deeply held, if mostly tacit, moral intuitions. The idea of bringing a prosecution for false statements against one who falsely denies his own wrongdoing strikes us as unfair and demeaning, particularly in cases in which the alternative (i.e., remaining silent) would be tantamount to admitting guilt. As I have suggested above, the deception contained in a false denial or exculpatory no is, from a moral perspective, qualitatively different from the deception that occurs in other contexts. It is deception that, though unjustified, is often viewed as excused. Speaking about the slightly different context of perjury, William Stuntz has made this point well: Self-protective perjury . . . looks a good deal like the commission of any victimless crime under great pressure. The defendant’s conduct is no doubt wrong, and seriously so, but the harm the conduct causes in any one case is both slight and diffuse while the pressure is both substantial and concentrated. So described, the choice seems to be one for which excuse is classically appropriate. One could hardly imagine punishing a bank robber for leaving the scene of his crime after the robbery in order to avoid immediate arrest; the defendant who lies on the witness stand to avoid confessing is in much the same position.156

The fact that the exculpatory no doctrine thrived even in the absence of tenable statutory or constitutional support is a manifestation of the strength of these moral concepts. Given the force of such claims, I therefore agree with Justice Ginsburg’s concurrence in Brogan that Congress should amend Section 1001 by 157 carving out an exception for exculpatory noes.

III. Rethinking the Clinton Sex-Perjury Scandal The Clinton sex-perjury scandal, which embroiled and captivated the nation during most of 1998 and early 1999, presents a rich factual context for thinking about the moral and legal aspects of lying, misleading, and falsely denying. But it also presents special hazards. The case is so controversial, and the facts so familiar, that most readers will long since have formulated strongly held views about its 158 Given understandably strong feelings about almost every aspect. 156. Stuntz, supra note 51, at 1254. 157. See Brogan, 522 U.S. at 416-18 (Ginsburg, J., concurring). 158. Depending on one’s view, Clinton was either so blameworthy as to be unfit for his office, or the victim of a “vast right wing conspiracy”; Independent Counsel Kenneth Starr was either an overzealous voyeur, or a tireless public servant; the House Republican prosecutors were either partisan hypocrites, or fearless statesmen. Leading commentary includes POSNER, supra note 15; PETER BAKER, THE BREACH: INSIDE THE IMPEACHMENT AND TRIAL OF WILLIAM JEFFERSON CLINTON (2000); WILLIAM J. BENNETT, THE DEATH OF OUTRAGE: BILL CLINTON AND THE ASSAULT ON AMERICAN IDEALS (1999); ANN H. COULTER, HIGH CRIMES AND MISDEMEANORS: THE CASE

K-GREEN6

202

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

the larger question of Clinton’s performance in office and the appropriateness or inappropriateness of impeachment, it is easy to lose sight of the underlying criminal law issues that gave rise to the question of impeachment in the first place. I hope to avoid these pitfalls by sticking close to the factual record and taking a fairly narrow look at a number of specific instances of alleged perjury. Each instance is meant to be representative of some specific doctrinal aspect of the law of 159 perjury. From this, I attempt to draw some larger (and presumably more controversial) conclusions about the reasons the Clinton perjury case ultimately failed. I focus here on two: The first is that much of what Clinton did was merely mislead rather than lie; and that the public was able to recognize, if only at some intuitive level, the moral and legal differences between those two acts. The second conclusion is that most of Clinton’s deceptions came in the form of defensive denials rather than offensive falsehoods, and that, once again, the public was able to intuit the difference. A. Clinton and the Literal Truth Defense

This section considers five pieces of testimony given by former President Clinton during either his January 17, 1988 deposition in the AGAINST BILL CLINTON (1998); SUSAN SCHMIDT & MICHAEL WEISSKOPF, TRUTH AT ANY COST: KEN STARR AND THE UNMAKING OF BILL CLINTON (2000); JEFFREY TOOBIN, A VAST CONSPIRACY: THE REAL STORY OF THE SEX SCANDAL THAT NEARLY BROUGHT DOWN A PRESIDENT (1998). My own view—for what it’s worth—is that there is plenty of blame to go around: Bill Clinton squandered the promise of his presidency through recklessness and mendacity; Independent Counsel Kenneth Starr abused the office of Independent Counsel through, among other things, an unwarranted expansion of his statutory mandate and the inclusion of gratuitously embarrassing details in his Referral to the House of Representatives; and the House Republican managers sacrificed the good of the country for their own partisan political ends. As to whether the charges against Clinton, assuming they were true, were sufficient to merit impeachment and removal from office, that question is best left to the constitutional scholars. See, e.g., MICHAEL J. GERHARDT, THE FEDERAL IMPEACHMENT PROCESS: A CONSTITUTIONAL AND HISTORICAL ANALYSIS 175-94 (2d ed. 2000); Charles J. Cooper, A Perjurer in the White House?: the Constitutional Case for Perjury and Obstruction of Justice as High Crimes and Misdemeanors, 22 HARV. J. L. & PUB. POL. 619 (1999); Cass R. Sunstein, Impeaching the President, 147 U. PA. L. REV. 279 (1998). 159. I make no attempt to deal with every possible instance of perjury, or with questions of intent, materiality, and proof. For example, I do not consider questions such as whether lies made in a deposition in a civil case that is subsequently dismissed are material. On such questions, see Charles W. Collier & Christopher Slobogin, Terms of Endearment and Articles of Impeachment, 51 FLA. L. REV. 615 (1999); Robert W. Gordon, Imprudence and Partisanship: Starr’s OIC and the Clinton-Lewinsky Affair, 68 FORDHAM L. REV. 639, 682, 656-66 (1999); Alan Heinrich, Note, Clinton’s Little White Lies: The Materiality Requirement for Perjury in Civil Discovery, 32 LOY. L.A. L. REV. 1303 (1999). Nor do I deal in any detail with the possibility that Clinton lied to, or misled, potential grand jury witnesses, the public, his staff, his family, or his friends.

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

203

160

Paula Jones sexual harassment case or August 17, 1998 videotaped 161 Each statement is meant to appearance before the grand jury. illustrate a different facet of the law of perjury or the morality of deception. (1) Testimony that Was Nonresponsive, Misleading, and Literally True

According to the allegations contained in the Referral of the 162 one of the most significant Office of Independent Counsel, instances of perjury during the course of President Clinton’s deposition in the Jones case occurred in the following colloquy: Q: . . . . At any time were you and Monica Lewinsky together alone in the Oval Office? A: . . . . [A]s I said, when she worked at the legislative affairs office, they always had somebody there on the weekends. Sometimes they’d bring me things on the weekends. She—it seems to me she brought things to me once or twice on the weekends. In that case, whatever time she would be in there, drop it off, exchange a few words and go, she was there. I don’t have any specific recollections of what the issues were, what was going on, but when the Congress is there, we’re working all the time, and typically I would do some work on one of the days of the weekends in the afternoon.163

According to the Referral, Clinton’s response constituted perjury because, in fact, Clinton had been alone with Lewinsky in the Oval 164 Office for extended periods of time on a number of occasions. Was this testimony really perjurious? Note that Clinton never actually answers the question asked of him. He never says whether he and Lewinsky were alone together in the Oval Office. Instead, he offers a rather elaborate, and somewhat rambling, explanation of the circumstances in which legislative aides might have brought him materials in the Oval Office—an explanation that would appear to be 160. The facts of that case are described in Clinton v. Jones, 520 U.S. 681, 685 (1997). 161. As it turns out, only Clinton’s alleged perjury before the grand jury and to potential witnesses were the subject of the impeachment articles themselves, see House Resolution 611, in THE IMPEACHMENT AND TRIAL OF PRESIDENT CLINTON: THE OFFICIAL TRANSCRIPTS, FROM THE HOUSE JUDICIARY COMMITTEE HEARINGS TO THE SENATE TRIAL 445-50 (Merril McLoughlin, ed. 1999), although his alleged perjury during the deposition received at least as much attention in the press and in Starr’s Referral. 162. REFERRAL TO THE UNITED STATES HOUSE OF REPRESENTATIVES FILED IN CONFORMITY WITH THE REQUIREMENTS OF TITLE 28, UNITED STATES CODE, § 595(C) SUBMITTED BY THE OFFICE OF THE INDEPENDENT COUNSEL, H.R. DOC. NO. 105-310 (1998) [hereinafter REFERRAL]. 163. Id. at 46. For purposes of analytical clarity, I have omitted the phrase with which Clinton begins his response: “I don’t recall.” Because Clinton was almost certainly lying when he said he could not recall being alone together with Lewinsky in the Oval Office, this statement should be regarded as perjurious. For discussion of another literally false statement made by Clinton, see infra notes 182-84 and accompanying text. 164. Id.

K-GREEN6

204

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

accurate on its face. In other words, Clinton offers an evasive, nonresponsive, and factually true reply to the question posed. Was Clinton’s testimony misleading? Probably, it was. A reasonable conclusion to be drawn from his statement is that Clinton and Lewinsky were never alone together in the Oval Office, at least for a period long enough to engage in sexual activity. Bill Clinton—a witness so slippery he makes Bronston look like an amateur—evades the question he does not want to answer by answering a different, relatively innocuous question about White House procedures. Under Bronston, however, evasive answers are not perjurious: “If a witness evades, it is the lawyer’s responsibility to recognize the evasion and to bring the witness back to the mark, to flush out the whole truth with 165 the tools of adversary examination.” Here, Jones’s lawyers had the opportunity to obtain a clarification of Clinton’s response, but, for 166 whatever reason, they did not pursue it. Any conclusions, true or untrue, that can be drawn from such statements would seem to be at least partly the questioner’s fault. (2) Testimony that Was Responsive, Misleading, and (Arguably) Literally True

Perhaps the single most infamous example of alleged perjury by President Clinton occurred during his deposition, in the course of the following colloquy with a lawyer for the Office of Independent Counsel. Clinton was asked, “have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court?,” and he responded, “I have never had sexual 167 relations with Monica Lewinsky.” Here again, Clinton’s testimony was obviously misleading. In normal discourse, one would infer that if A and B had not had “sexual relations,” then A and B had not had sexual intercourse, oral sex, or any other form of sexual contact. But this was not normal discourse. It was a deposition, and the term “sexual relations” had already been defined in a quite specific way. According to Exhibit 1: [A] person engages in “sexual relations” when the person knowingly engages or causes – (1) contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to arouse or gratify the sexual desire of any person.168 165. Bronston v. United States, 409 U.S. 352, 358-59 (1973) (emphasis added). 166. For a discussion of other apparent errors made by Jones’s lawyers, see Gordon, supra note 159, at 682. 167. REFERRAL, supra note 162, at 133. 168. SUBMISSION BY COUNSEL FOR PRESIDENT CLINTON TO THE COMMITTEE ON THE JUDICIARY OF THE UNITED STATES HOUSE OF REPRESENTATIVES, H.R. PRT. NO. 10516 (1998) [hereinafter CLINTON SUBMISSION], at 37.

K-GREEN6

November 2001]LYING, MISLEADING, AND FALSELY DENYING

12/1/01 6:07 PM

205

Initially, Jones’s lawyers had submitted a much broader definition of “sexual relations,” which included both “contact between any part of the person’s body or an object and the genitals or anus of another person” and “contact between the genitals or anus of 169 the person and any part of another person’s body.” But for reasons that are now difficult to ascertain, Judge Wright narrowed the meaning of the term by striking these last two clauses. As a result, the remaining definition did not include a number of acts that might ordinarily be thought of as involving sexual activity— including, most significantly, fellatio performed by Lewinsky on 170 Thus, assuming that Clinton’s sexual activity with Clinton. 171 Lewinsky was limited to his being fellated by her, it follows that Clinton’s response was literally true, that he did not lie, and that, under Bronston, he did not commit perjury. Moreover, the fact that Clinton’s testimony here was responsive (as in DeZarn), rather than non-responsive (as in Bronston), should make no difference. Recall that, in Bronston, the lawyer’s only error was in failing to follow up on a non-responsive answer. By contrast, the lawyer here, as in DeZarn, actually asked the wrong question. The rule of caveat auditor thus applies a fortiori. By adhering to the idiosyncratic definition of “sexual relations” contained in Exhibit 1, 169. Id. 170. The import of the “oral sex does not constitute sexual relations” defense would not become fully clear until Clinton testified before the grand jury on August 17, 1998. When asked about his understanding of the term “sexual relations” as defined for use in the deposition, Clinton said it “covers contact by the person being deposed with the enumerated areas, if the contact is done with an intent to arouse or gratify,” but it does not cover oral sex being performed on the person being deposed. “[I]f the deponent is the person who has oral sex performed on him, then the contact is with—not with anything on that list, but with the lips of another person.” REFERRAL, supra note 162, at 16. In other words, assuming again that the only sexual contact Clinton had with Lewinsky consisted of her performing fellatio on him, then what Clinton testified to in his deposition was literally true. Even if Lewinsky had engaged in “sexual relations” with Clinton, technically speaking, Clinton had not engaged in “sexual relations” with her, because he had allegedly not had contact with any of her listed body parts with the “intent to arouse or gratify [her] sexual desire.” 171. I recognize, of course, that this is a big assumption. According to Lewinsky’s testimony, in addition to her performing oral sex on Clinton, he also touched her in various sexual ways. Id. at 148 (“She described with precision nine incidents of sexual activity in which the President touched and kissed her breasts and four incidents involving contacts with her genitalia.”). If Lewinsky’s testimony on this point is to be believed, then Clinton’s assertion that he did not have “sexual relations” as defined in Exhibit 1 would be literally false, and he would thereby have committed perjury. On the other hand, it is also possible that Lewinsky was lying about the precise nature of her sexual contact with Clinton. In any event, the requirement that the government present the testimony of two witnesses, Hammer v. United States, 271 U.S. 620, 626 (1926), or at least one witness and independent evidence corroborating that witness’s testimony, United States v. Ford, 603 F.2d 1043 (2d Cir. 1979), would, under the circumstances, have been hard to satisfy.

K-GREEN6

206

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

rather than asking straightforward questions about the precise nature 172 of the sexual relationship between Clinton and Lewinsky, Jones’s lawyers drew unwarranted conclusions about the nature of their relationship. Assuming again that Clinton’s contact with Lewinsky was limited to her performing oral sex on him, his statement that he had “never had sexual relations with Monica Lewinsky” was not 173 Under Bronston, it would have been unreasonable to perjurious. 172. For example, Jones’s lawyers could have asked questions such as: “Did Lewinsky ever have ‘sexual relations’ with you?” “Did Lewinsky ever perform fellatio on you?” “Did Lewinsky ever have contact with any of your following body parts?” “Did you ever have contact with any of her following body parts?” 173. It is also worth considering Clinton’s denial in the January 17 deposition that he ever had a “sexual affair” or a “sexual relationship” with Lewinsky—terms that, unlike “sexual relations” were never expressly defined. The Clinton defense team argued that the terms “sexual affair” and “sexual relationship” both refer to sexual intercourse or coitus, and that since Clinton (even by Lewinsky’s own admission) had never had intercourse with her, it follows that they did not have a sexual “affair” or “relationship.” See CLINTON SUBMISSION, supra note 168, at 35-36. This strikes me as a difficult claim to sustain. The problem is the premise that the terms “sexual affair” and “sexual relationship” refer exclusively to sexual intercourse or coitus. To be sure, there are a number of sex-like activities that might not necessarily qualify as a “sexual affair” or “relationship,” such as kissing and fondling and even phone sex. Similarly, it could be argued that a sexual encounter with an anonymous partner or with a prostitute would not be a sexual “affair” or “relationship.” But it strains the limits of language to suggest that a relationship that involves mouth-to-genital contact with intent to arouse is not a sexual relationship. There is, however, a better argument that the Clinton defense team could have made, but apparently did not. We are dealing with three terms that, in ordinary discourse, would be understood as basically synonymous: sexual relations, sexual affair, and sexual relationship. Only the first is defined. In such a situation, one would expect to see the undefined terms used in one of two situations: either because the speaker intends to be limited by the defined term, and has simply been careless; or because the speaker intends not to be limited by the defined term. If one looks at the deposition transcript, it seems obvious that the former is true here: Jones’s lawyers did intend to use the undefined terms “sexual relationship” and “sexual affair” as synonyms for the defined term “sexual relations.” For example, consider the following colloquy: Q: Did you have an extramarital sexual affair with Monica Lewinsky? WJC: No. Q: If she told someone that she had a sexual affair with you beginning in November of 1995, would that be a lie? WJC: It’s certainly not the truth. It would not be the truth. Q: I think I used the term “sexual affair.” And so the record is completely clear, have you ever had sexual relations with Monica Lewinsky, as that term is defined in Deposition Exhibit 1, as modified by the Court? *** WJC: I have never had sexual relations with Monica Lewinsky. I’ve never had an affair with her. REFERRAL, supra note 162, at 133 (emphasis added). As the italicized language indicates, both Jones’s lawyers and Clinton used the undefined term “sexual affair” as a synonym for the defined term “sexual relations.” Therefore, to the extent that the defined term “sexual relations” does not refer to Clinton’s being fellated, it seems reasonable to conclude that

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

207

expect Clinton to volunteer information that exceeded the scope of the definition given. (3) Testimony Given in Response to Ambiguous or Imprecise Questioning

At another point in the deposition, Jones’s lawyers questioned Clinton about the number of times he and Monica Lewinsky had been alone together in the Oval Office, and the following colloquy ensued: Q: So I understand, your testimony is that it was possible, then, that you were alone with her, but you have no specific recollection of that ever happening? A: Yes, that’s correct. It’s possible that she, in, while she was working there, brought something to me and that at the time she brought it to me, she was the only person there. That’s possible.174

Here again, the Office of Independent Counsel maintained that Clinton had committed perjury, on the grounds that he did in fact 175 have a specific recollection of having been alone with Ms. Lewinsky. Under the reasoning of cases like Lattimore and Sainz, this 176 The question posed to Clinton has conclusion is highly doubtful. two discrete parts: “is it possible that you were alone with her?”; and “is it true that you have no specific recollection of being alone with her?” When Clinton answered, “yes, that’s correct,” he could have been responding either to part 1 of the question, or to part 2, or to both parts at once. Under the Independent Counsel’s theory, the only truthful answer he could have given would have been something to the effect that, “yes, it is possible that I was alone with her, but no, it is not true that I have no specific recollection of being alone with her.” The fact that Clinton failed to clarify an ambiguous and poorly framed question in this manner surely cannot mean that he committed perjury. (4) False Testimony Given in Response to Questioning Regarding Precise Quantities

During the deposition in the Jones case, in response to the question, “[h]as Monica Lewinsky ever given you any gifts?,” the President responded, “[o]nce or twice. I think she’s given me a book 177 or two.” Here, Clinton misleads his questioner by implying that the

the undefined terms “sexual relationship” and “sexual affair” are also so limited. Under this construction, and assuming again that Clinton’s relationship with Lewinsky was in fact limited in this manner, it appears that Clinton did not make a literally false statement. 174. REFERRAL, supra note 162, at 152. 175. Id. 176. See supra notes 82-84 and accompanying text. 177. REFERRAL, supra note 162, at 156.

K-GREEN6

208

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

only gifts he received from Lewinsky were one or two books when in fact, according to Lewinsky, she gave him numerous gifts, perhaps as 178 many as 38. Does this response from Clinton constitute perjury, or is it too protected by Bronston’s literal truth rule on the grounds that, after all, Lewinsky did give Clinton “a book or two”—in addition to a slew of other gifts? As a matter of law, the answer to this question lies in footnote 3 of Bronston, in which the Court refers to (and distinguishes) an example of perjury given by the District Court below: [I]f it is material to ascertain how many times a person has entered a store on a given day and that person responds to such a question by saying five times when in fact he knows that he entered the store 50 times that day, that person may be guilty of perjury even though it is technically true that he entered the store five times.179

Indeed, the Court says, “it is very doubtful that an answer which, in response to a specific quantitative inquiry, baldly understates a 180 numerical fact can be described as even ‘technically true.’” In this case, Clinton seems to have done exactly what footnote 3 says he may not do. He has responded to a quantitative inquiry by “baldly 181 understat[ing]” the numerical response. Accordingly, this statement should be regarded as perjurious. Moreover, the approach in footnote 3 is consistent with everyday morality. Imagine that A needs to borrow a car for the evening and asks B how many he owns. B, who in truth owns four cars, replies, “I have one car, and I’m using it this evening.” Has B lied in saying that he owns “one car”? Has B made an assertion that is literally false, or has he merely caused A to draw an improper conclusion from a misleading, but literally true, statement? It seems wrong to say that B has merely misled A. After all, B told A that he owns “one car.” Perhaps A could have asked the follow up question, “are you saying that you own only one car and no more?,” but this seems to take the principle of caveat auditor to extremes. In terms of everyday morality, one who responds to a specific quantitative inquiry by baldly understating a numerical fact should be regarded as uttering a lie.

178. Id. at 157. 179. Bronston v. United States, 409 U.S. 352, 355 n.3 (1973) (quoting district court opinion). 180. Id. at 355-56. 181. The fact that Clinton was asked, “[h]as Monica Lewinsky ever given you any gifts?,” rather than “how many gifts has she given you” should make no difference to the perjury inquiry, given the fact that he responded with a specific quantitative answer.

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

209

(5) Literally False and Misleading Testimony

At yet another point in the Jones deposition, Clinton was asked, “have you ever given any gifts to Monica Lewinsky?,” to which he 182 replied, “I don’t recall. Do you know what they were?” In light of Lewinsky’s testimony, physical evidence (namely, the gifts 183 his themselves), and Clinton’s own testimony to the contrary, statement that he could not recall whether he had ever given any gifts to Monica Lewinsky was almost certainly literally false. Assuming that it was also intentional and material, it should be viewed as 184 unproblematically perjurious. B.

Caveat Auditor, Exculpatory Noes, and Public Perceptions of the Clinton Scandal

What accounts for the fact that Bill Clinton managed not only to avoid removal from office but also to maintain a fairly high level of public approval throughout the Monica Lewinsky affair and its 185 aftermath? Explanations abound: The economy was doing well, the country was at peace, and Clinton was given much of the credit for 186 Kenneth Starr was viewed by many as overreaching, selfboth. righteous, and vindictive; the House managers as partisan hypocrites. 182. REFERRAL, supra note 162, at 155. 183. Id. at 155-56 (describing evidence of Clinton gifts to Lewinsky). 184. Clinton’s defense team, presumably at a loss as to how to respond to this particular allegation of perjury, came up with the following, almost comically far-fetched, explanation: The videotape of the President’s January 17 deposition makes clear that the cold transcript can be somewhat misleading. When the President is asked, “Well, have you ever given any gifts to Monica Lewinsky?”, the transcript records his response as, “I don’t recall. Do you know that they were?” Dep. at 75. The videotape reveals the President’s response, however, was a run-on sentence, as though the punctuation were omitted, for the real communicative gist of his quoted response (as it appears in the videotape) was, “Yes — I know there were some — please help remind me.” CLINTON SUBMISSION, supra note 168, at 39 n.129. 185. According to Gallup/CNN/USA Today polling performed during the height of the scandal (between June and September 1998), the percentage of respondents who expressed the view that Clinton “should not be impeached and removed from office” varied between 63 and 77 percent. The percentage that indicated that Clinton should be impeached and removed varied between 19 and 35 percent. President Clinton: Scandals and Investigations, at http://www.pollingreport.com/scandal2.htm (last visited Aug. 14, 2001). The breakdown was remarkably similar in response to the question, “do you approve or disapprove of the way Bill Clinton is handling his job as president.” Id. For further reflections on the public reaction to the scandal, see Atkinson, supra note 10. 186. See, e.g., CAMPBELL, supra note 17 at 312 (“Common sense told [the] experts that a president who behaved like [Clinton], whose personal morality was deplorable, could not stay in office. But social morality, the ‘needs and interests’ of the majority, which approved of the direction in which he was taking the country, transcended the principle that a president should always tells the nation the truth.”).

K-GREEN6

210

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

Perhaps most importantly, Clinton’s marital infidelities, immoral as they surely were, were viewed as private matters that should never have been the concern of federal prosecutors, grand juries, or the 187 Congress. I do not dispute any of these theories. Instead, I want to add two theoretically deeper explanations to the mix. The first is that the public grasped, if only intuitively, that there is a moral difference between bald-faced lies and duplicitous evasions. Although Clinton surely did make a handful of literally false statements under oath, it appears that most of his testimony consisted of statements that, though misleading, were literally true. As “legalistic” as many of Clinton’s responses undoubtedly were, the public seems to have understood—and accepted—the fact that they were neither lies nor perjurious. Second is what we may refer to as the procedural posture of Clinton’s deception—i.e., the fact that it came mostly in the form of false denials. It has often been suggested that the reason Clinton survived the Lewinsky ordeal was the perceived unfairness of holding 188 him accountable for lies told about essentially private matters. But this factor is not sufficient, by itself, to account for public attitudes. Imagine that a politician volunteered untrue information to the media about private matters such as his relationship with his spouse and children. (One thinks of former Senator Gary Hart, who, as questions of marital infidelity arose during his presidential campaign, actually dared members of the media to surveil him.) Although such a politician would have lied about private matters, we would not be inclined to regard such lies as excused. By contrast, Clinton lied mostly in response to questions put to him, rather than on his own initiative. When Clinton did engage in “offensive,” literally false deception, the public was much less likely to be forgiving. Consider his infamous January 26, 1998 appearance in the Roosevelt Room of the White House, less than a week after the Monica Lewinsky matter was first reported by the media. Shaking his finger and looking directly into the television cameras, Clinton announced, “I want to say one thing to the American people. I want you to listen to me. I’m going to say this again: I did not have sexual relations with that woman, Miss 189 Lewinsky.” For many observers, this seemed the low point of the whole sordid affair. Even those who were willing to excuse Clinton

187. We may think of this last theory as implied by opposition to legal moralism, as used in the first sense of the term, described supra note 1 and accompanying text. 188. See, e.g., Anita L. Allen, Lying to Protect Privacy, 44 VILL. L. REV. 161 (1999). 189. John F. Harris & Dan Balz, Clinton More Forcefully Denies Having Had Affair or Urging Lies, WASH. POST, Jan. 27, 1998, at A1.

K-GREEN6

12/1/01 6:07 PM

November 2001]LYING, MISLEADING, AND FALSELY DENYING

211

for bending the truth during the depositions felt brutalized by this statement. Clinton had asked the American people to put their trust in him, and he had betrayed that trust. Here, there were no unwarranted conclusions to draw, no hypertechnical Exhibit 1 definitions to hide behind. Clinton had taken the initiative, he had breached the faith, and the blame for the public’s being misled was wholly his. Which brings us to a final issue concerning Bill Clinton. On February 18, 2001, this time as a former president, Clinton could again be found issuing a denial of wrongdoing. Caught in yet another storm of controversy, this time over the propriety of a last minute presidential pardon to fugitive financier Marc Rich (among others), Clinton published a piece on the Op-Ed page of the New York Times. According to the former president, “[t]he suggestion that I granted the pardons because Mr. Rich’s former wife, Denise, made political contributions and contributed to the Clinton library foundation is 190 utterly false. There was absolutely no quid pro quo.” Like his statement that he “did not have sexual relations with that woman, Miss Lewinsky,” Clinton’s “offensive” assertion that there was “absolutely no quid pro quo” for the Rich pardon is distinguishable from the “defensive” statements that otherwise characterized the Lewinsky affair. Should it turn out that there was a quid pro quo for the Rich pardon, then his Times Op-Ed statement would prove to be literally false, and he would have lied. Moreover, unlike the Lewinsky affair, he would have lied about a matter that is fundamental to the integrity of the presidency. About deception of this sort, one would expect the public to be much less forgiving.

Conclusion People use evasion and duplicity not just to avoid telling the truth, but also to avoid lying. At times, they go to great lengths to avoid saying that which is literally false. Why not simply lie? The answer is that we recognize, if mostly at an intuitive level, that lying involves a moral wrong that is mitigated in the case of mere misleading—mitigated because the misled party shares at least some of the blame for her false belief. This moral distinction is reflected in the law. Material statements, given under oath with an intent to deceive, are not perjurious unless they involve a literal falsity. In practice, this means that a witness might engage in considerable deception on the stand, without ever violating the criminal law. In the law that applies to business transactions, however, a different set of rules applies. 190. Clinton, supra note 16.

K-GREEN6

212

12/1/01 6:07 PM

HASTINGS LAW JOURNAL

[Vol. 53

Unlike the courtroom, the business world is regarded as too complex and chaotic to allow for effective “cross-examination” of misleading statements. An intentional falsity that appears in a securities offering or real estate prospectus must be taken at its word, so that even misleading statements that are literally true might be made criminal. We also recognize a moral distinction between deception that is used offensively, to initiate a falsehood, and deception that is used defensively, to falsely deny some accusation of wrongdoing. While false denials of wrongdoing should be neither encouraged nor condoned, the fact is that they do reflect a special moral status, as is evidenced by the history of the “exculpatory no” defense to prosecution for the offense of false statements. As we have seen, legal concepts such as perjury, fraud, and exculpatory noes cannot be understood in a conceptual vacuum. They exist in an intricate relationship with ethical principles concerning matters such as lying, misleading, and falsely denying. To be sure, it is often hard enough to agree about what such moral concepts consist of, let alone how they correspond to law. Nevertheless, if we are to understand how our criminal law really works, we have no choice but to continue exploring the complex relationship between it and morality.

‘UNSPEAK’ AND THE GUN PROHIBITIONISTS by William R. Tonso February 10, 2007 The following statement is presented inside the dust jacket of Steven Poole’s recent book, UNSPEAK : HOW WORDS BECOME WEAPONS , HOW WEAPONS BECOME A MESSAGE , AND HOW THAT MESSAGE BECOMES REALITY : A completely partisan argument can be packed into a sound bite. This is Unspeak. Unspeak represents an attempt by politicians, interest groups, and business corporations to say something without saying it, without getting into an argument and so having to provide justification. At the same time, it tries to unspeak – in the sense of erasing or silencing – any possible opposing point of view by laying a claim right at the start to only one way of looking at a problem. As an Unspeak phrase becomes a widely used term of public debate, it saturates the mind with one viewpoint while simultaneously making an opposing view ever more difficult to enunciate. Jack Shafer’s Slate essay reviewing this book, “The Devil’s Lexicon: Unspeak Exposes the Language Twisters,” was posted on LRC on January 23. In his review, Shafer invited his readers to submit their own examples of unspeak to him, but he must have been swamped, because he called a halt to submissions in an addendum to his piece. Too bad. As a sociologist who has followed the gun-prohibition movement closely since it was resurrected around 1960, and who is very familiar with firearms, I would like to have sent him a few prime examples of unspeak that have long bugged opponents of this movement. Saturday Night Specials I’ll start with “Saturday night special,” a label applied to small-caliber, small, easily concealed, cheap handguns that are the favorites of criminals and for which honest citizens have no legitimate uses. The gun prohibitionists claim that, at least, and the mainstream media haven’t questioned their claims. “Saturday night special” has been tossed around for half a century through these media as if the label is precise and the troublesomeness of these guns has been well established. Who would want such a gun other than a criminal? What reasonable person wouldn’t want to ban them? These questions don’t even have to be asked. In mainstream media circles, it’s obvious that only criminals and the unreasonable would oppose banning them. Therefore, other questions are never asked. There seems to be general agreement that in this case, small caliber means .22, .25, .32, and even .38 S&W and .380ACP. But how small is “small” as far as the guns are concerned? How easily concealed is “easily concealed”? How cheap is “cheap”? But the main question, given the claims of the gun prohibitionists, should be, “How can the guns in question, regardless of how “small,” “easily concealed,” and “cheap” are specified, be lethal in the hands of criminals but completely useless in the hands of honest citizens trying to protect themselves from criminals?” Most states issue permits to carry handguns concealed for self-protection purposes to citizens who have passed background checks. Vermont and Alaska don’t even require permits for concealed handgun carry. The characteristics that presumably make certain handguns desirable to criminals, “small” and “easily concealed,” also make them desirable to private citizens who want them for self-protection – and to police as backup guns. North American Arms makes some incredibly tiny five-shot, .22-caliber revolvers. The .22 1

‘UNSPEAK ’ AND

THE

GUN PRO HIBITIONISTS

short model is 3 5/8" long, 2 3/8" high, 13/16" wide, and weighs 4 oz. unloaded. That’s certainly “small” and “easily concealed,” though the .22 short would be considered a last ditch, at best, cartridge for self-protection. For those who want more power in a small package, there’s Kel-Tec’s .380 ACP, 5.14" long, 3.576" high, .748" wide, and 7.2 oz. unloaded. Both of these guns are extremely well made, yet the North American .22 can be had for under $200 and the Kel-Tec .380 can be had for under $300. Both of these guns are quite cheap compared to other quality handguns. But what does cheapness have to do with anything? If the concern is that cheapness means shoddy and unreliable, do those who want to ban guns so described want criminals to have better guns? Though some very shoddy and unreliable handguns have been produced over the years, cheapness doesn’t ensure shoddiness and unreliability. Harrington & Richardson, for example, started making inexpensive, but quite serviceable, handguns way back in 1871. In excellent condition, their Model 922, nine-shot, .22 revolver with a 2 ½” barrel is worth only about $100 on the used-gun market today. A number of years ago, firing a very reliable 1950s vintage H&R of this model at a rate of a shot every two seconds or less, I hit a three-foot steel gong nine out of nine times at fifty yards. That’s hardly precision work, but not bad for a small, easily-concealed, cheap handgun in the hands of a devotee of the hit-it-any-which-way-you-can school of marksmanship rather than a master bulls-eye target shooter. So the concern about cheapness may have less to do with the serviceability of such guns than it does with the fact that their low price makes them affordable by folks at the lower socio-economic levels – folks who, on the one hand, have high crime rates, and on the other, have the least police protection. In fact, there’s reason to believe, though the gun prohibitionists deny it, that the “Saturday night special” label derives from “nigger town, Saturday night,” because inexpensive handguns were long associated with the weekend altercations common in poor black urban areas. And the first restrictions on the sale of such handguns were passed in the South in Jim Crow days, their aim being to keep even law-abiding blacks defenseless. In other words, as good unspeak does, those three little common words, “Saturday night special,” cover up a lot at the same time that they imply much that ain’t so. And so does the label “semi-automatic assault weapon,” generally shortened to “assault weapon.” Semi-automatic Assault Weapons In his 1988 “report on assault weapons,” gun prohibitionist Josh Sugarmann wrote: “The weapon’s menacing looks, coupled with the public’s confusion over fully automatic machine guns versus semi-automatic assault weapons – anything that looks like a machine gun is assumed to be a machine gun – can only increase the chance of public support for restrictions on these weapons. In addition, few people can envision a practical use for these guns.” In other words, Sugarmann expected public support for a ban on “semi-automatic assault weapons,” because that public was completely uninformed about the guns so labeled. And he expected the public to stay uninformed about these guns, because, as he candidly acknowledged, the media the public looks to for information were equally uninformed about them. In fact, the mainstream media often encouraged the public to believe that the semi-automatics targeted by the prohibitionists were actually machine guns, the legal civilian possession of which has been strictly regulated by the federal government since 1934 and which is not allowed at all by some states. For five years after the 1989 Stockton, California schoolyard shooting, in which such a gun was used, every NBC and many CNN commentaries on “assault weapons” that I viewed that included demonstrations, showed machine guns rather than the semi-automatic guns covered by the eventually-passed ban being fired. And these machine-gun demonstrations were invariably accompanied by snide comments by either the TV anchor or a guest ban supporter to the effect that such guns were obviously of no use to hunters, often referred to as “sportsmen.” Never mind that the guns being demonstrated weren’t the guns covered by the ban, or that opposition to the ban had nothing to do with the desires or needs of hunters, or that legitimate gun use isn’t limited to hunting. 2

‘UNSPEAK ’ AND

THE

GUN PRO HIBITIONISTS

As “Saturday night special” (SNS) projects the claim that handguns so labeled are useful to criminals but not to honest citizens desiring to protect themselves from criminals, “assault weapon” (AW), projects the claim that guns so labeled are useful only to military and police forces, and criminals, but not to ordinary citizens who have no business assaulting anyone. Therefore, reasonable people would support banning the civilian ownership of such guns. But what makes a gun an “assault weapon”? “Assault rifles” (ARs) used by the military, as opposed to “assault weapons” sold to civilians, have certain features that, by definition, mark them off as such. They can be fired semi-automatic (one shot per trigger pull), but they can also be fired either full-automatic (firing as long as the trigger is held back) or burst fire (firing a set number of shots – usually three – before the trigger must be pulled again). AWs can be fired semi-automatic only, and as such are no different from many rifles, shotguns, and pistols used by American civilians for hunting, target shooting, and self-defense for over a century. ARs are chambered for cartridges less powerful than those used in past military rifles that themselves used cartridges still popular with hunters of middle-sized big game such as deer and black bear. But the AR cartridges are considerably more powerful than the pistol cartridges fired by submachine guns. Most AWs fire the same middle-range cartridges as ARs, but some fire the lower-powered pistol cartridges. Both ARs and AWs are equipped with detachable box magazines with capacities of 20 or 30 rounds, but other rifles not labeled AWs, such as the Ruger Mini 14 and the M1 carbine, also come equipped with detachable, high-capacity, box magazines or can utilize them. So in the final analysis, since civilian AWs can’t be fired either full-automatic or burst fire, the only characteristic they share with military ARs that they don’t share with ordinary guns long used by American citizens is their high-tech looks. And prohibitionists like Sugarmann depend on those looks to fool the public into thinking the guns their ilk call “semi-automatic assault weapons” are machine guns for which there are no sporting uses, the only uses the prohibitionists would have the public believe are legitimate. And mainstream journalists question neither the “assault weapon” label, nor the sporting use criteria for determining legitimate reasons for owning a given type of gun. If the Second Amendment guarantee of the right to keep and bear arms is acknowledged at all by the prohibitionists, that acknowledgement is quickly followed with an expression of dedication to the preservation of the rights of sportsmen, a label that apparently covers only hunters, not target shooters. And again, mainstream journalists let the prohibitionists get away with it and uncritically accept and utilize the “assault weapon” label. But over the past quarter century the paper trail left by the Founders’ has been thoroughly examined by reputable and prominent historians and Constitutional scholars, and we know what they intended the Second Amendment to accomplish. It was intended to be the teeth of the Bill of Rights, as made clear by such as the following succinct comment by Tench Coxe: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed in the next article in the right to keep and bear their private arms” (emphasis added). The taken-for-granted assumption on the part of the AW banners that Americans have no right to possess militarily-effective firearms flies in the face of both the Founders intentions and American experience. The Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The militia referred to is based on an armed citizenry, not a National Guard-type organization which the Founders considered to be a “select militia,” or reserve professional military, and which they feared as much as they feared a standing army – of the sort we now have. As Glenn Reynolds has noted recently, “the ownership of firearms was widely mandated during Colonial times, and the second Congress passed a statute in 1792 requiring adult male citizens to own guns.” Even today, according to Title 10, U.S. CODE, Section 311, all males between 17 and 45 who are citizens, or who have declared their intentions to become citizens, are members of the militia – the National Guard now being only the organized part of that militia. 3

‘UNSPEAK ’ AND

THE

GUN PRO HIBITIONISTS

Until the gun-prohibitionist movement was resurrected in the 1960s, the right of Americans to own military rifles and pistols wasn’t seriously questioned. In fact, the federal government itself regularly sold off at bargain prices surplus military rifles and pistols, including semi-automatics with high-capacity magazines such as the M1 carbine, to the public through the Army’s Office of the Director of Civilian Marksmanship (DCM). Also, foreign military surplus, including semi-automatic, 20mm German anti-tank guns, could be purchased through the mail sans background check until 1968. And until GIs were equipped with ARs capable of full-automatic fire in the 1960s, guns created for the civilian trade often had the firepower advantage over guns issued to most American infantrymen. While the Army was still equipped with single-shot rifles in the 1870s, civilians had access to Winchester lever-action repeaters and even to the Evans rifle which, in its various models, could hold from 28 to 38 rounds. Civilians started acquiring semi-automatic pistols in the 1890s, while our military didn’t adopt one until 1911. And semi-automatic rifles were available to hunters 30 years before the Army adopted the semi-automatic M1 Garand in 1936. As far as power goes, the most powerful civilian rifles and pistols are considerably more powerful than those used by the military, and the cartridges, such as the 9mm, .45ACP, .223, and .308, used in military guns are also used by civilians for hunting, target shooting, and/or personal-protection. The case could be made that “semi-automatic assault weapon” covers up more and implies more that ain’t so than does “Saturday night special.” Cop-Killer Bullets Back in 1982, NBC breathlessly reported on Teflon-coated handgun bullets that could penetrate police body armor, and the gun-prohibitionists promptly made another contribution to unspeak – “cop-killer bullet.” Now, how could any responsible citizen oppose keeping out of civilian circulation bullets that can penetrate police body armor to kill cops? Why would any honest, responsible citizen want to have access to such bullets? So what are the lies built into this piece of unspeak, and what issues does it duck? Best I can determine, these Teflon-coated bullets have been around since the late 1960s, were developed for the police, were not available to the public, and have yet to penetrate police body armor to kill a cop. But the mainstream media again uncritically bought the label, it stuck, and it’s still resurrected now and again. I claim no expertise on Teflon-coated bullets, but as best I can determine, their Teflon coating has little to do with the ability of these bullets to penetrate police armor. A bullet’s penetration of anything, including armor, depends on right combinations of shape, velocity, and hardness. But bullets made of extremely hard metal can’t be fired through rifled barrels, because the rifling can’t cut into them to give them their stabilizing spin – plus, they’d wreck the barrels. What the Teflon of these bullets apparently does is give their very hard cores (tungsten or bronze) a softer coating to take the rifling. But the issue has been blurred further by the prohibitionists who, after achieving their ban on the civilian possession of Teflon-coated bullets, want to ban all bullets capable of defeating police armor. And there are lots of them. In fact, just about every kind of bullet fired from center-fire rifles of the sort commonly used for hunting, will make a sieve of the light-weight armor worn by the police – velocity and their copper jackets do the job. The prohibitionists have blurred things even more by making an issue of expanding hollow-point bullets that can’t penetrate armor. These bullets inflict too much damage on the people hit with them. Incredible! Reaching out and touching someone with a bullet is intended to do damage, and can be legally carried off only by an individual trying to protect him- or herself or innocent others from criminal attack. The idea is to stop the attack, and no handgun of a caliber practical for self-protection carry, even a .45ACP or a .357 Magnum, can be completely relied open to stop an attacker in his tracks. In the real world, people shot with handguns, or with high-powered rifles or shotguns, for that matter, aren’t knocked head over heels like they are in movies or on TV. The purpose of hollow-point bullets is to increase damage enough to increase the likelihood of stopping an attacker before he can harm you or others.

4

‘UNSPEAK ’ AND

THE

GUN PRO HIBITIONISTS

Oh! Isn’t it interesting that while the Founders trusted the citizenry more than they trusted government, ongoing attempts to ban military-style “assault weapons” and bullets that can penetrate the body armor of the armed agents of government indicate that nowadays a significant part of the ruling class we’re not supposed to have would have us trust government more than the citizenry? Selective Concern for Unspeak? Last fall, my wife and I drove the 90-plus miles or so from our home in Evansville, Indiana to my hometown, Herrin, Illinois, to attend Homecoming festivities. At one of the Homecoming events, we found ourselves sitting at a table with one of my high school classmates and his wife. Having heard that I write on the gun issue, my classmate volunteered that he liked guns and was all for the right to keep and bear arms, but not for the right to own those assault weapons. Without even looking at her, I knew that my lovely wife had tensed up and what she was thinking – “My God! His chain’s been pulled!” But she doesn’t always give me the credit for civility that I deserve. I knew that that wasn’t the time or place to go for the jugular, so after I saw that my mild efforts to inform him weren’t going anywhere, I suggested that he look up some of my stuff on the Internet and guided the conversation to less controversial gun matters. Like some 70% of the public, according to the polls, my classmate had been taken in by “assault weapon” sound bites. He was completely uninformed, or misinformed, about these guns, and the degree of effort on my part it would have taken to inform him would have been considered completely inappropriate in that setting. The gun prohibitionists don’t have to make an argument against “assault weapons,” “Saturday night specials,” or “cop-killer bullets.” The mainstream media circulate their sound bites and most of the public, including many people who possess guns that operate exactly the same way as do “assault weapons,” or handguns to which the elastic label “Saturday night special” could easily be applied, or hunting ammunition that can penetrate police body armor, is convinced that no responsible person has any business possessing guns or ammunition carrying these labels. “Saturday night special,” “assault weapon,” and “cop-killer bullet” “say something without saying it, without getting into an argument and so having to provide justification.” And these labels attempt to silence “any possible opposing point of view by laying a claim right at the start to only one way of looking at a problem.” Prime examples of unspeak, I should think? But do either Poole in his book or Shafer in his review essay mention any of these choice unspeak sound bites? Nope! The only example in Poole’s book remotely related to the gun issue can be found on page 221: “In 2005, even people peacefully signing petitions to ban the shooting of doves in the US were labeled ‘anti-hunting extremists’ by the National Rifle Association. An alternate view might consider the desire to fire bullets at birds to be the extreme position.” Good point. But isn’t it interesting that though Poole, who is English and writes for The Guardian, cites many American examples of unspeak, he mentions this little publicized example of NRA unspeak, while completely overlooking the “Saturday night special,” “assault weapon,” and “cop-killer bullet” examples emanating from the gun prohibitionists that have made American mainstream media headlines for decades? I wonder if American reviewer Shafer noticed their absence, or if his readers pointed them out to him. Of course, it’s true that the gun control issue hasn’t received as much media attention during the Bush II administration as it did during the Clinton reign, one of the very few bright spots of the W years. But now that the Democrats control both the House and the Senate again, such rabid gun prohibitionists as Hillary Clinton, Chucky Schumer, Diane Feinstein, John Kerry, and John Conyers are back in business and the prohibitionist unspeak will be flowing again as they try to close the nonexistent “gun show loophole,” revisit “assault weapons,” and try to come up with something catchier to stigmatize .50-caliber rifles than they’ve been able to come up with so far. Maybe Poole will start to take notice – but I doubt it.

5

‘UNSPEAK ’ AND

THE

GUN PRO HIBITIONISTS

William R. Tonso, a retired sociology professor (University of Evansville) who has written a lot on the gun issue, both sociological and pro-Second Amendment. His recent book, GUN CONTROL =PEOPLE CONTROL , is a collection of eleven of his essays previously published in LIBERTY , REASON , CHRONICLES , and GUN WEEK .

6

Editorial

D IFFERENCE B ETWEEN D ECEPTION AND L YING Mukul Sharma TIMES NEWS NETWORK FRIDAY, FEBRUARY 09, 2007 02:37:37 AM When you think of human communication, it’s rife with deception,” says Stephen Nowicki, a biologist at Duke University in the United States. According to him the reason is not far to see. Since the point of communication is to get information across, it presents a great opportunity for liars who may wish to get such information across as would benefit them most. Yet there are some people who attempt to downgrade lying to the level of deception by claiming that a whole lot of animals do it all the time too. Not only does this give it a convenient biological basis but also helps them to shirk a bit of moral responsibility in the bargain. Yes, there’s sham in the animal world. For instance, there are some caterpillars which look exactly like dangerous snakes. It’s an example of a weaker animal copying a stronger one in order to protect itself. That’s hardly dishonesty. But what can we make of the male green frog whose croaks are more like real deception? These animals croak in order to attract females, the lower the pitch of the croak the bigger — and thus healthier — the frog. It also serves to drive other male frogs away from the competition. However, it’s been observed that some smaller frogs frequently lower the pitch of their croaks too to indicate the same thing. If that seems a little more deceitful, consider the shrike. These small sparrow-like birds routinely use alarm communication calls to warn others of the presence of a predator so that they can fly away. Sometimes though, a shrike uses a false alarm to scare other shrikes away from food which it can then get more of. Now that seems like an outright lie which actually appears to harm others by depriving them of a decent meal. But is it? Human beings, of course, would like to think so because then they can blame deceit on an animal ancestry. The difference is, a frog that alters its voice does not choose to lower its pitch knowing that doing so will fool other frogs. It’s merely an evolved behavioural adaptation. Nor is the shrike deliberately out to starve its companions. Over time, natural selection will ultimately favour those shrikes which are not fooled by the false alarm as they will get enough to eat in the end. With us that’s not the case. Instead it’s a well thought out and reasoned deception which fully understands — and, more importantly, often anticipates — the consequences such action will have. And then still goes ahead and does it. And damn the consequences. That’s the difference.