I agree with the majority that the Court's statements in this regard cannot be interpreted as “absolute proposition[s],” Maj. Op. at 1202–03, because the Court has established that, although “false statements may be unprotected for their own sake,”
BE & K, 536 U.S. at 531, 122 S.Ct. 2390, the Constitution “requires that we protect
some falsehood in order to protect speech that matters,”
Gertz, 418 U.S. at 341, 94 S.Ct. 2997 (emphasis added). But the protection the Court has afforded for “
some falsehood” has been limited to narrow subsets within the historically unprotected category—
certain false statements of fact critical of public figures if made without “knowledge that [they are] false or with reckless disregard of whether [they are] false or not,”
New York Times, 376 U.S. at 280, 84 S.Ct. 710; certain false statements of fact in contexts similar to defamation, such as intrusions on a public figure's privacy,
see Time, 385 U.S. at 376–77, 388, 87 S.Ct. 534, and criticisms of one's superior,
see Pickering, 391 U.S. at 572–74, 88 S.Ct. 1731; and
certain false statements of fact that “c[annot] reasonably have been interpreted as stating actual facts,”
Hustler, 485 U.S. at 50, 108 S.Ct. 876. The fact that the Supreme Court has extended limited constitutional protection to some false statements of fact in defamation and defamation-like cases and that these cases generally involve a cognizable harm to a particular party does not demonstrate that a cognizable harm is a
prerequisite before a false statement of fact loses its First Amendment protection. Rather, the spheres of protection carved out in
New York Times, Hustler, and like cases represent limited
exceptions to the general rule that false statements of fact are
not protected by the First Amendment, irrespective of a cognizable harm to a specific person.
See Keeton, 465 U.S. at 776, 104 S.Ct. 1473 (false statements of fact have “no constitutional value” because they “harm
both the subject of the falsehood
and the readers of the statement” (first emphasis added) (quotation marks omitted)). If a false statement of fact does not fall within one of these exceptions, it falls within the general historically unprotected category of speech, and the absence of “harm” is irrelevant.