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To my understanding, there are two types of misrepresentation: negligent misrepresentation (which is not fraud) and intentional misrepresentation (which is fraud).

Is negligent misrepresentation also unprotected? Or is it just fraudulent misrepresentation that is unprotected?

Please cite your sources.

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Negligent misrepresentations are not protected by the First Amendment. They can be a basis for legal liability to someone who is harmed them.

Misrepresentations that are not even negligent can be the basis for liability if they constitute a violation of a warranty, which may be implied in law rather than express.

For example, suppose you sell a piece of art to someone. This is a sale of goods, which comes with an implied in law warranty that the seller has good title to the good sold and is entitled to sell it. By offering it for sale you are making an implied representation that you own it and have a right to sell it. But suppose that the person you bought the art from was actually a thief. Then you would have liability for your implied in law representation that you had good title to the artwork, even if you had a good faith and reasonable belief that this was true.

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  • I doubt this is accurate anymore in light of Alvarez, which generally protects even knowing misrepresentations. Probably still mostly accurate in the context of commercial speech, but in general, it's hard to see how this argument survives a First Amendment challenge.
    – bdb484
    Commented Jul 5 at 17:12
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    @bdb484 Negligent misrepresentation cases apply to statements made in the course of a business or occupation and are very much good law and routinely brought. The law of warranties hasn't changed either.
    – ohwilleke
    Commented Jul 5 at 18:03
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    I don't disagree, but that's all commercial speech, isn't it? That's why I'd say this is better described as an exception rather than the rule.
    – bdb484
    Commented Jul 5 at 22:36
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The First Amendment guarantee of free speech includes the right to lie. U.S. v. Alvarez, 567 U.S. 709 (2012) ("Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements.")

There are a variety of exceptions, but for the most part, everyone is free to lie as long as they aren't trying to subvert justice or inflict harm on someone else. Garrison v. Louisiana, 379 U.S. 64, 73 (1964) (“Even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood.”)

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