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82 Ohio St. L.J. Online 1 (2021)

handle is hein.journals/furth82 and id is 1 raw text is: OHIO STATE LAW JOURNAL ONLINE Government Falsehoods, Democratic Harm, And the Constitution HELEN NORTON* The government's lies inflict injuries that differ in both degree and kind from those caused by nongovernmental parties' lies. In other words, the government's intentional and reckless falsehoods threaten distinct and especially serious harms-both to individual targets and to the public more broadly-precisely because of their governmental source. How, if at all, does the Constitution address the government's harmful falsehoods? Caroline Mala Corbin investigates this important question in The Unconstitutionality of Government Propaganda.1 THE GOVERNMENT'S FALSEHOODS THAT INJURE IDENTIFIABLE INDIVIDUALS IN PARTICULARIZED WAYS At times, the government deploys falsehoods as weapons to punish its enemies and critics or to coerce its targets' waiver of their rights. Illustrations include the Mississippi State Sovereignty Commission's defamatory lies- alleging financial, sexual, and legal misconduct-to the employers, friends, and neighbors of those who fought segregation in the 1950s and 1960s.2 And the FBI's false threats to African-American editor and journalist Charlotta Bass during World War II that her newspaper would be shut down if she continued to equate the fight against Nazism with that for civil rights at home.3 And, more recently, New Orleans prosecutors' fake subpoenas (delivered by police officers to pressure crime victims and potential witnesses into coming forward) that falsely stated A fine and imprisonment may be imposed for failure to obey this notice .4 Courts have recognized that the Constitution can constrain the government's lies and other expressive choices that inflict these sorts of individualized injuries. While recognizing that the First Amendment does not- indeed, as a practical matter, could not-bar the government from expressing * Professor and Rothgerber Chair in Constitutional Law, University of Colorado School of Law. 1 Caroline Mala Corbin, Trump's Lies: The Unconstitutionality of Government Propaganda, 81 OHIO ST. L.J. 815 (2020). 2See ACLU v. Miss., 911 F.2d 1066, 1068-70 (5th Cir. 1990). 3 See AIMEE EDMONDSON, IN SULLIVAN'S SHADOW: THE USE AND ABUSE OF LIBEL LAW DURING THE LONG CIVIL RIGHTS STRUGGLE 27-28 (2019). 4 See Singleton v. Cannizzaro, 956 F.3d 773, 777 (5th Cir. 2020). 2021]1 1

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