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The co-hosts of ABCs The View took up the topic of Fox News coverage during a recent show specifically its coverage of former President Donald Trumps false assertions that the 2020 election was fraudulent and its reports about the Jan. 6, 2021, attack on the U.S. Capitol.

Co-host Whoopi Goldbergasked whyFoxs coverage isnt considered tantamount to recruiting and radicalizing.

To me, this should be against the law, Goldberg said March 8. You should not be able to lie to the American people knowingly. And, you know, its one thing if you made a mistake and you didnt know. But weve heard for five or six years now, you know, the media was a lying sack of doo. They were fake news. So how come? What do we do as Americans to say this is not okay?

Another co-host, off-camera, responded, Its the First Amendment.

Goldberg countered, The First Amendment doesnt allow you to willingly lie.

Goldbergs comments came as Dominion Voting Systems issuingFox News for defamation over some of its hosts comments questioning the reliability of Dominion voting machines following the 2020 election.

A reader asked us to look into whether Goldberg was right on the constitutional question. Legal scholars told us that she is mostly off base.

Lies, including knowing ones, do not lose First Amendment protection simply for their untruth, said Howard M. Wasserman, a law professor at Florida International University.

A spokesperson for The View did not respond to PolitiFacts inquiry.

Experts said that for some types of speech, lying is not constitutionally protected, but these are relatively narrow exceptions. Examples include:

Beyond these categories, though, everyday lying has generally been found to be protected by the Constitution.

In the 2012 Supreme Court caseUnited States v. Alvarez, the justices ruled that content-based restrictions on speech are almost always invalid. In Alvarez, the high court struck down a law that had made it a crime to fraudulently claim to have received certain military awards for valor.

Five of the justices agreed that lies about philosophy, religion, history, the social sciences, the arts, and the like are generally protected, said Eugene Volokh, a UCLA law professor.

Volokh said that a separate holding of the Sullivan case was that even deliberate lies, said with actual malice, about the government are constitutionally protected.

State-level laws targeting false political speech have also run into turbulence in the courts. In 2016, an appeals court ruledunconstitutionalan Ohio law that prohibited the dissemination of false information about a political candidate in campaign materials during the campaign season. The decision said that the law amounted to content-based restrictions targeting core political speech that are not narrowly tailored to serve the states admittedly compelling interest in conducting fair elections.

A major reason for protecting lies, experts said, is that the government will not necessarily be an honest judge of what is truth and what is a lie. Volokh said there is continuing concern among jurists about following in the path of the Sedition Act of 1798, a law that banned malicious lies about the government.

The Sedition Act, whichwas allowed to expirein 1801, would be viewed as unconstitutional under modern First Amendment law, Volokh said, because it requires the government to decide whats a lie about it and whats not a decision that will often be made inaccurately and self-servingly.

Wasserman agreed. We do not want to empower the government to decide what is truth, he said. It would be too easy to label certain political opinions or framings as untrue and subject to government silencing.

A broadcaster like Goldberg benefits significantly from protections for lying, Ligon said.

Talk show hosts are often given leeway, consistent with the First Amendment, when it comes to their speech, in part because they are understood to be entertainers, Ligon said.

Ligon said that both Tucker Carlson on the right and Rachel Maddow on the left have successfully defended defamation claims.

In the 2021 caseHerring Networks v. Maddow, a federal appeals court ruled on a defamation claim stemming from a segment Maddow had aired on her MSNBC show. The segment contained the claim that an employee of One America News Network was also being paid by the Russian government to produce government-funded, pro-(Vladimir) Putin propaganda for a Russian government funded propaganda outfit called Sputnik.

The court ruled that the statement was obvious exaggeration, cushioned within an undisputed news story. The ruling went on to say that Maddows statement was well within the bounds of what qualifies as protected speech under the First Amendment. No reasonable viewer could conclude that Maddow implied an assertion of objective fact.

Goldberg said, The First Amendment doesnt allow you to willingly lie.

For the vast majority of speech, the First Amendment considers lies to be protected speech.

There are exceptions to this general rule, but they are limited. In libel and incitement cases, for instance, the judicial bar for proving harm is high, meaning that most types of political speech cannot be challenged successfully in court.

We rate the statement Mostly False.

This fact check was originallypublished by PolitiFact, which is part of the Poynter Institute. See the sources for this fact check here.

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Whoopi Goldberg said the First Amendment 'doesn't allow you to ... - Poynter