CATEGORY: FreeSpeech

Should the First Amendment protect lying?

Susan B. Anthony List v. Driehaus case asks SCotUS to extend constitutional protections to to those who intentionally lie to voters.

I do not know anyone whose parents or church taught them that lying is permissible and bears no taint of sin: Thou shall not bear false witness is ingrained from childhood in everyone I know. Do not ever lie, we are taught.

So why, then, is an anti-abortion advocacy group asking the highest court in the land to allow it to lie with impunity? At stake in the case is whether the federal government has the legal right to police political advertising for lies. The case involves claims by the anti-abortion group, Susan B. Anthony List, against then-Rep. Steven Driehaus (D-Ohio). From Politico’s Bryon Tau:

During the 2010 election cycle, Susan B. Anthony List accused Driehaus of voting in favor of taxpayer-funded abortions by supporting President Barack Obama’s Affordable Care Act.

Driehaus then complained to the Ohio state election commission, alleging that the proposed billboard campaign ad was false and violated the state law. The Affordable Care Act requires abortion to be paid for through non-ACA accounts and federal law bars taxpayer money from funding abortions.

The proposed billboard would have read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”

Susan B. Anthony List denies that the ads were false — but is challenging the overall constitutionality of the restrictions on false political speech. The group also successfully beat back defamation lawsuit filed by Driehaus in 2013. …

The Driehaus campaign argued that the SBA ad ran afoul of the Ohio False Statement Law that makes it illegal to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.”

The anti-abortion group and another ally filed a federal lawsuit, arguing that the Ohio law is unconstitutional, on First Amendment grounds. Really? Running to SCOTUS to protect free speech on the basis of a lie? [Here's the case file from SCOTUSblog.]

Well, plenty of legal scholars and others have weighed in on that question: Does the First Amendment protect the right to lie? See here, here, and here.

Recall United States v. Alvarez. Xavier Alvarez falsely claimed he had been awarded the Medal of Honor. The government prosecuted him under the Stolen Valor Act, which criminalizes false claims to having received military honors or decorations. The Supreme Court struck down the act.

In the plurality opinion, Justice Anthony Kennedy wrote:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.

The government had claimed “that false speech adds little of value to society and thus is generally without First Amendment protection. In its brief, the government argued that false statements ‘have no First Amendment value in themselves,’ and thus ‘are protected only to the extent needed to avoid chilling fully protected speech.’”

Ah, that wonderful phrase: “chilling fully protected speech.” Does a lie broadcast in some means by an anti-abortion group (or a pro-life group) constitute fully protected speech? I don’t know.

I like the definition of free speech by my favorite fictional president, Andrew Shepherd, from my favorite bad movie, The American President:

America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”

We should cherish, or at least listen to, someone whose words make our blood boil because good public policy often emerges from the clash of ideas and points of views. But if the guy doing the shouting, and making my blood boil, is spewing provable lies, of what socially or politically redeeming value are those words? To me, political lies are intolerable.

Sadly, such lies abound. If you have an active mind and have been paying attention, you know the following:

Governments lie.

Government officials, whether elected or appointed, lie.

People wanting to be government officials, either elected or appointed, lie.

Groups of people, be they liberal or conservative, wealthy or not, bright or merely dumb, wanting to influence public policy, lie.

Lies have driven the politics we have today. Why do we, the electorate, put up with the social, moral, and economic consequences of so many lies by so many political agents who claim to be acting “in the best interests of the American people”?

Far too many people engaged in politics, either as public servants or advocates for particular policy outcomes, have long forgotten the message of Proverbs 6:16–19:

There are six things that the Lord strongly dislikes, seven that are an abomination to him: haughty eyes, a lying tongue, and hands that shed innocent blood, a heart that devises wicked plans, feet that make haste to run to evil, a false witness who breathes out lies, and one who sows discord among brothers.

Let’s hope the Supreme Court reminds its supplicants that a lying tongue serves no one well. But is that likely? Hardly. Not with this Supreme Court, and probably not with any Supreme Court.

Tolerating lies, the Court will likely rule, is a cost of free speech. But political mendacity has social and economic consequences we should fully recognize. We should demand truth from those govern us, and those wish to. Remind them of what they were taught as children: Tell the truth.

11 comments on “Should the First Amendment protect lying?

  1. Fascinating subject Denny and I enjoyed every word of your short tour. What I took from it besides ordering up the Bok Book mentioned is that discourse indeed needs “room to breathe” and agreement that truth is the best defense against falsehood, not government regulation.

    I understand why you would wish truth in all human endeavors yet as a pragmatist I see no logical way of achieving that goal without scrapping humanity and starting out fresh by inventing a whole new species. I also disagree with the SCOTUS’ point on Larry Flynt’s reporting of Jerry Falwell drunkenly banging his mother in an outhouse as being obvious satire. I found it to be entirely credible.

    • “I also disagree with the SCOTUS’ point on Larry Flynt’s reporting of Jerry Falwell drunkenly banging his mother in an outhouse as being obvious satire. I found it to be entirely credible.” I just can’t stop laughing!

  2. What gets me is the arbitrary nature of which lies (or types of lies) are permissible, an indication that not all untrue speech is protected. Mind you, I”m not advocating for lies, but for consistency.

    Perjury is speech, so why should an oath make a difference, especially in a nation torn by the conflict between those who would institute Christianity as the basis for law and those who would shelter the law from such encroachment? After all, Christians are enjoined to make no oaths (Matthew 5:33-37). Peculiar then, is it not, to make mendacity under the force of a verboten behavior illegal?

    Filing false police reports is against federal and state laws. Slander, libel, and defamation suits lose their force when the speaker makes true, substantiated claims, but not otherwise. Misrepresentations of many kinds (in statements to police and to public officials, on a vast number of government forms, and even on paperwork related to financial transactions) are forbidden, either punishable under law or at least serving as cause for judgments against a person in a civil action.

    For that matter, if hairstyle and fashion are elements of protected speech, what about allegations that former candidate Romney had a penchant as a young man for impersonating a police officer?

    In essence, while I’m conflicted about the powers government at any level should have to police Truth(TM), there is a compelling argument to be made that speech that directly acts against the public good is not protected under the First Amendment. As such, I’m inclined to think that, at the very least, political lies should be prohibited and the speakers of them should be held fully accountable in a court of law, even if that should only be via civil suits.

  3. I believe is Dr Wilkins is, with reservations, arguing the same point Frank and I see it yet would ask you to step into a jurist’s robes and decide the case this article is based on.

    The Susan B Anthony List is kind of lying and kind of telling the truth. Do a little Googling on the ACA and abortion. While technically neutral it is irrefutable that some Medicaid and subsidy dollars will go towards abortions. Which I’m fine with by the way but how would you fairly adjudicate this situation? And if we do outlaw half lies then where does it stop except no one can say anything?

    I think that’s what the SCOTUS was saying, that in many cases one man’s lie is another man’s truth and each case requires a flexibility in examination or we’ll tromp all over the 1st amendment. Very thought provoking subject!

    • Denny understands – I assure you, he does, because he had the same doc classes I did – that the pure ideological answer here is that of course lying is protected speech. The 1A is predicated on Milton’s edict that “the truth will out,” and I imagine the fine gentlemen who wrote our constitution would be baffled as to why this is even a topic of discussion.

      From where I sit, this is a wonderful illustration of the problem with pure ideology. That doesn’t mean I’m comfortable with the idea that enforcing laws like the one we’re talking about here poses some practical concerns re: governments being trusted to decree what is true and what isn’t, but in a world where nothing is perfect, it’s all a cost:benefit game isn’t it?

  4. I’m glad I read this. I like feeling conflicted. Is it bad that this was better than anything I read in my Sunday paper today?

  5. This is an interesting discussion, and thanks for the link to the case file. I don’t have an answer. I can see problems with adjudicating either way. I will add, though, that you could have cited some other norms against lying. The first rule of journalistic ethics is that you don’t publish anything you know to be untrue (and yes, I am aware that not every journalist observes this). You can find a similar norm in academic publishing. So, I guess the question is, since political speech is obviously different, would it do more harm than good to rule that lying is unprotected? As a general rule, I am skeptical of slippery slopes, but this could certainly be one. I think they probably made the right decision in Alvarez. At the very least, they erred on the side of caution. Which is kind of what you want a constitutional court to do in cases like that.

  6. As much as I hate this-hate it, hate it-it’s so half-true that it’s almost not a lie. Could/should there be some law about writing deliberately misleading blurbs? Fortunately or not (and I hate this billboard like I hate plot spoilers), I think we have to err on the side of saying that this instance is allowed. And then we need to talk about perception.

  7. Reblogged this on Sourcerer and commented:
    - This question is not so easy to answer as one might think, and there is a very thoughtful discussion of it under way at S&R. You will want to check it out if you care at all about politics or First Amendment rights.

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