united-states united-kingdom defense
Under what circumstances (other than defamation) is &quot;truth an absolute defense&quot; against prosecution?
<p>My understanding is that &quot;truth is an absolute defense&quot; against a &quot;defamation&quot; charge, in the U.S. (Although you could be charged with something else such as &quot;publication of private facts.&quot;)</p>
<p>If you shouted &quot;fire&quot; in a crowded theater, and there really was a fire, would &quot;truth be an absolute defense&quot;? If so, under what heading would this doctrine fall, since we are not dealing with &quot;defamation&quot;?</p>
<p>On the other hand, &quot;truth is NOT an absolute defense&quot; against &quot;defamation&quot; in the United Kingdom. (At least as I learned UK law in the 1990s.) Are there any other instances in the UK where &quot;truth is not an absolute defense&quot;?</p>

<p>The original phrase <a href="https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater" rel="nofollow noreferrer">&quot;falsely shouting fire in a theatre and causing a panic&quot;</a> came from the opnion by Justice Holmes in <a href="https://en.wikipedia.org/wiki/Schenck_v._United_States" rel="nofollow noreferrer"><em>Schenck v. United States</em>, 249 U.S. 47 (1919)</a> where it was a <strong>metaphor</strong> for speech that might validly be prohibited under he First Amendment. It served to introduce the famous &quot;Clear and present danger&quot; test. The issue in that case was whether  distributing fliers urging people not to submit to the draft could be the reason for a conviction under the Espionage Act, or whether such action was protected by the First Amendment. Holmes held it was not protected. The case was not about any actual shout of &quot;fire&quot;.</p>
<p>The Court has generally held that true speech may not be prohibited, and for this reason some legal scholars argue that the &quot;private facts&quot; tort is unconstitutional in the US. But in many cases the Court has held that false speech is also protected, so truth is not the primary criterion.</p>
<p>In <a href="https://en.wikipedia.org/wiki/Brandenburg_v._Ohio" rel="nofollow noreferrer"><em>Brandenberg vs Ohio</em> 395 U.S. 444 (1969)</a> the &quot;Clear and present danger&quot; test was replaced by a rule that only  speech &quot;directed to inciting or producing imminent lawless action and is likely to incite or produce such action&quot; may be prohibited under the first amendment, and this is now the test for any crime of &quot;incitement&quot;. Under this test <em>Schenck</em> would hav gone the other way. This test says nothing about the truth of the speech, and a perfectly true statement may nevertheless be incitement if it seeks to arouse lawless action, and is likely to succeed.</p>
<p><em>Near vs Minnesota</em> held that bare truth must be a defense in any prior restraint case (unlike truth published &quot;with good motives and for justifiable ends&quot; which the saturate at issue in <em>Near</em> allowed as a defense), but went on to greatly restrict any prior restraint, even if the content was false.</p>
<p>Defamation is really the primary situation in which falsity is a vital  element of the offense, and so truth is a defense.</p>
<p>Falsity is an element of perjury also, and so truth would be an absolute defense there as well. Falsity is also an element of the common-law tort of fraud, and of most statutory versions of fraud, but in some of those a true but misleading statement can still be held fraudulent, so truth is not an absolute defense.</p>
<p>I cannot think of another such legal situation.
<strong>Updatew:</strong></p>
<p>A comment asked:</p>
<blockquote>
<p>What if I inform all of Joe's neighbours that Joe had been arrested for murder - when I fully know that he was completely exonerated and the real murderer is in jail right now. It's literally the truth, but completely misleading.</p>
</blockquote>
<p>In that case the law takes you to have made <strong>by implication</strong> a statement that Joe is currently under suspicion for murder, or perhaps a statement that Joe is actually  guilty of murder. As those statements are false, and apparently knowingly false, they can be the basis of a defamation action. There is a lot of caselaw on defamation by implication, but in general one is taken to have made statements that are clearly implied by the statements one did in fact make.  I don't think this is very different in UK and US law, but I am not sure about the UK. Anyway truth is not a defense here because the implied statement is not true.</p>

<p>The truth defense regarding shouting &quot;fire&quot; is baked into the statute criminalizing the conduct: see <a href="https://law.justia.com/codes/ohio/2006/orc/jd_291731-9b31.html" rel="nofollow noreferrer">ORC 2917.31</a> for Ohio and analogs in other jurisdictions</p>
<blockquote>
<p>No person shall cause the evacuation of any public place, or otherwise
cause serious public inconvenience or alarm, by doing any of the
following:</p>
<p>(1) Initiating or circulating a report or warning of an alleged or
impending fire, explosion, crime, or other catastrophe, knowing that
such report or warning is false;</p>
</blockquote>
<p>Likewise perjury statutes, false statement / report statutes, criminal fraud statutes etc. where the definition of the crime includes the fact of a statement being false (indeed, knowingly false). It is remotely conceivable that somewhere there is a statute against &quot;inducing panic&quot; which prohibits making true statements that result in public alarm, where truth of statement is taken to be an absolute defense, but I've never seen a version of the law that doesn't include falseness as a definitional element.</p>
