THE BLOG
04/16/2014 07:15 pm ET Updated Jun 16, 2014

Are Political Lies Constitutional?

Are political lies constitutionally-protected free speech? That's an intriguing question, and one that the Supreme Court is going to take up next week. What makes the question interesting is how a valid argument could be made either way, no matter what your personal politics. Both sides resent well-funded politicians who blanket the airwaves with what they see as the baldest of falsehoods, but on the other hand political free speech is an absolute bedrock of the American system of government. Where do you draw the line? Should a line even be drawn?

The case before the Supreme Court may not answer such fundamental questions. The justices could easily narrowly rule on technical aspects of the case and by doing so punt it back to a lower federal court. But the questions themselves are valid ones, and may eventually wind up before the high court in one case or another.

The case being heard came about because a third-party group wanted to rent some billboards in Ohio to target a sitting House member during a campaign. What the billboards would have stated was not, in fact, true. Ohio has a law on its books (as do at least 15 other states) which bans such false statements about candidates. Therefore the case wound up in court.

Those are the facts of the case, stripped of political details. The key question -- the one that the Supreme Court is likely to punt on, at least this time around -- is whether such state laws are valid, or whether the First Amendment's guarantee of free speech makes such laws unconstitutional.

Does the state have a right to vet campaign statements? At first glance, it would seem to be a welcome check on the flood of negative advertising that each and every election generates. If candidates (and political groups) were limited to only speaking the truth, it would certainly get rid of the worst of these ads. And it's hard to find anyone willing to take a stand for the position: "More ads! Worse ads!" Except maybe the campaign consultants who get rich from this process, that is.

But unpopular speech -- in particular, unpopular political speech -- was what the First Amendment was created to preserve. To be a First Amendment absolutist means defending the rights of Nazis (or the KKK, or Fred Phelps) to publicly state their beliefs, no matter how noxious. Political campaign speech seems to be at the heart of this concept, because it is not merely marching in the streets or protesting an event, it is advocating for who will represent the people in government. Advocating for political change, in other words, by the most direct method available: the ballot box. Seen in this light, even political lying has to be considered protected political speech.

Of course, the other side has a good argument as well, which can be boiled down to the famous Mark Twain quote: "A lie can travel halfway around the world while the truth is putting on its shoes." If political candidates are forced to spend all their time and energy setting the record straight with the truth, they will have no time to get their own positive message out. This becomes acute when one side (or one candidate) can heavily outspend the other. The one with the bigger advertising budget can bury an opponent with lies, and even if some are successfully debunked for the public, some of them will stick. Is this really how we want our democracy to function?

But the real problem with state laws which forbid political lies boils down to: who decides? Even if you think such a law might improve the tenor of our politics, do you really want elected officials making the case-by-case decisions on what is true enough to be allowable versus what is factually so inaccurate that it cannot be shown to the public? Or maybe unelected officials? Because to enforce such a law, that is precisely what would be needed -- an Office of Political Truth of some sort. And it's pretty easy to project a negative outcome of such powers. For instance, what would happen if a majority of such a board of decision-makers were from the opposing party? How fair would they actually be? Elections could quickly devolve into nothing more than a series of protracted legal battles before such a commission, with each side filing complaints by the dozen. Is that really how electioneering should be regulated?

The idea of allowing nothing but truth into politics is a noble one. The problem is, it's not a very practical one (even ignoring the constitutionality issue for a moment). It would require some sort of election referee on the sidelines, calling fouls and being a gatekeeper for what is allowable play on the field of politics. There's a legal term for this, however: "prior restraint." This means giving the government the power to -- in advance -- decide what people can and cannot say. To use an extreme example, it would be like having newspapers submit all their editorials to the government for pre-approval before publication -- which is a chilling concept to even contemplate. Now, as I said, this is an extreme example, because certain types of ads obviously do require some sort of government intervention. An ad which actively called for one candidate to be assassinated would, quite obviously, be illegal (because of the threat of violence, which is a separate crime). But should this be extended to making lies about policies illegal as well?

Ugly politics is not new to America, no matter what you hear from pundits with absolutely no knowledge of our history. Lies are not new in the political arena. Even vicious lies. They've been around since our very beginnings as a nation, in fact. But the traditional way of combating offensive political speech is with more political speech. If neo-Nazis or the KKK want to hold a public rally, then organize a counter-rally and shout them down! If a political ad appears which lies about a candidate, then expose the lie and do your best to discredit both the other candidate and whoever put up the first ad. There are two main ways of doing so, in fact. The first is to attack the opponent as a big fat liar: "If he lies to you about this, then how can you trust him to represent you?" The second (often very effective in local races) is to paint the ad as coming from "outside influences" or "outsider money" that doesn't represent your state and your people: "Money from outside our great state is pouring in to tell lies. My opponent is fine with people from outside our borders running his campaign -- which tells you what is most important to him. I will represent the good people of this state rather than being beholden to all these outside special interests." Some combination of these basic themes is the traditional response, because they are very effective at reframing the entire debate and causing a backlash against ads which do contain obvious lies. Additionally, in the past decade or so, newspapers and other media sources have begun to take it upon themselves to "truth squad" statements being made by politicians or political ads -- which helps referee the fray to at least some extent.

Of course, this still leaves the problem of unequal campaign finances. When one side can outspend the other, then one side's message gets out to the people and one side's doesn't get heard. That is indeed a problem, but it is a much bigger problem than policing ad copy. No matter how fair ads could be made by an Office of Political Truth, the monetary disparity would remain. Perhaps this would lead to a slightly-politer avalanche of ads from one candidate, but the opponent would still wind up buried nonetheless.

Free speech is a fundamental issue. The case before the Supreme Court does not fall easily on partisan lines, believe it or not. The group which wanted to put the billboards up is the Susan B. Anthony List, an anti-abortion group. The billboard they wanted to put up would have accused a sitting Democrat of supporting taxpayer-funded abortion, because he had supported the Obamacare law. This is inaccurate, factually. Which the Obama White House does indeed argue. But the Obama administration also supports the Susan B. Anthony List's legal argument: that political free speech should allow even billboards which lie about Obamacare. Ohio's attorney general (a Republican) had his office file a brief in the case defending the state law's position, but he also filed another brief, stating his personal beliefs that the law "may chill constitutionally protected political speech." Partisans from both sides of the aisle can be conflicted over the details of the case, while still expressing a clear signal on the larger implications of constitutionality, in other words.

As I said, it is a noble goal to attempt to legislate that "nothing but the truth" be allowed into political discourse during an election. But it is also an impossible goal -- a Utopian vision which the United States Constitution simply does not allow. The very concept of government policing political speech in such a fashion -- attempting to be a gatekeeper for the truth -- would quickly devolve into either complete toothlessness (see: the F.E.C., for example) or it would just as speedily descend into the horrors of ugly partisanship ("our side never lies, and our opponents always lie") if the membership of the gatekeepers became another political tug-of-war. Imagine one politician having free rein to say whatever she wished, while an opponent had nine out of ten ads rejected (costing valuable time and money during campaign season).

The Supreme Court is not likely to make a basic ruling on this case. They will likely quibble over legal "standing" to bring the case, and will likely punt it back to a lower court in one fashion or another. This will avoid the question, and postpone a real decision. But whenever they do get around to ruling on state laws which mandate truth in political advertising, they should clearly see that while the intent of such laws may indeed be good and pure, the Constitution simply doesn't allow such purity in our political discourse. Popular political speech needs no protection from the First Amendment -- it never has. It is unpopular political speech -- even downright lies -- which need defending by the courts. As ignoble and as impure as that may sound.

 

Chris Weigant blogs at:

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