Are Political Lies Constitutional?

[ Posted Wednesday, April 16th, 2014 – 16:11 UTC ]

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


Cross-posted at The Huffington Post

Follow Chris on Twitter: @ChrisWeigant


17 Comments on “Are Political Lies Constitutional?”

  1. [1] 
    YoYoTheAssyrian wrote:

    So this is pre-reading your article, but I wanted to do before and after posts.

    So I read your title, yes, they are constitutional, but that's not really the point.

    Let's see where I stand afterwards.

  2. [2] 
    YoYoTheAssyrian wrote:

    We agree! Though I think you really hit the nail on the head with the bit about money. With both citizens united and Mccutcheon, the supreme court has allowed tons of money into the system. (don't even get me started on "I have a telepathic link to dead slave owners Scalia")

    But yah, ultimately people are allowed to say what they want. It's up to us, the body politic, to call them on their bs.

  3. [3] 
    Chris Weigant wrote:

    YoYo -

    Yep. The cure for BS is harsh sunlight, and lots of political speech denouncing it.



  4. [4] 
    Bleyd wrote:

    I've been a reader here for a while, but this is my first time commenting.

    I'm curious, is it possible to sue a campaign or entity for political lies? You can sue for defamation of character, but can you sue for defamation of political campaign? If not, might such a thing offer a method to minimize ads that are at least obviously factually inaccurate? Perhaps limit the punishment to removing the ad and issuing a retraction in the same or similar media, but only if it can be proven that said ad made statements that were objectively false. I would think that this would also limit the government's influence on such decisions by leaving the burden of both bringing the suit and providing proof on the party being affected.

    Any thoughts?

  5. [5] 
    Chris Weigant wrote:

    Bleyd -

    First of all, welcome to the site. Or maybe "welcome to the comments area"?


    Your first comment was held for moderation, but you should now be able to post comments instantly. Just don't use more than one link in each comment, as multilink comments are automatically held for moderation (to cut down on comment spam).

    As for your question, I think that legally a politician would be able to sue for defamation (slander, libel), but that practically, it wouldn't work.

    I say this for two reasons. The first is that judges would likely not want to rule on what is, at heart, a political issue. It's a separation of powers problem, in other words -- the judiciary tends to shy away from purely political questions, instead preferring the ballot box to work out such issues.

    The second is that the public likely wouldn't look kindly on a politician who brought such a lawsuit. Lawsuits take a long time, so the suit wouldn't likely be heard until after the election. So it'd either be seen as "being a bad winner" (if the winner of the election was suing) or "sour grapes" (if the loser was suing). This is likely why politicians almost never take this route.

    Of course, back in the 1800s, there was another answer -- challenge your opponent to a duel. But, of course, that's not really an answer today.

    Anyway, once again, welcome to the site.


  6. [6] 
    YoYoTheAssyrian wrote:

    You can sue anyone for anything at any time, the only real limiting factor is your pocketbook. But your solution is interesting, however, I don't think anyone wants to deal with the hundreds of lawsuits that would happen every time November rolls around.

  7. [7] 
    DisabledDoc wrote:

    The solution is to somehow limit the amount of money involved in campaigns, so that everyone is on more-or-less an equal footing. Unfortunately, our current Supreme Court doesn't see it that way.

  8. [8] 
    LewDan wrote:

    Suing a politician for defamation won't work because the courts have always adopted the position Chris espouses here. The courts are our "truth commission." A role they have always flatly and adamantly rejected. Their position, like Chris' is that there is no objective truth. That the first amendment protects any political statement.--And that's the problem.

    The Bill of Rights seeks to protect people from government abuses of power. Particularly abuses that would inhibit free democratic expression in elections. But while it may not be possible to prove a statement is not a lie. It certainly may be possible to prove one is a lie.

    The first amendment is not a blank check. Unconditionally "protecting" someone's "right" to lie politically uses the power of the state to inhibit the political speech of the person who is the subject of the lie.

    The courts self-bestowed position as ultimate arbiter constitutional disputes is supposedly to resolve constitutional conflicts. Their refusal to touch issues of slander and libel by hiding behind the first amendment is a large part of why our politicians are so susceptible to the influence of money. It isn't politicians being bribed that's the problem. Its politicians being coerced. Because deep-pocketed special interests can and will fund attacks on politicians unconstrained by any need to be truthful if the politician doesn't sufficiently placate them.

    The court's refusal to protect the first amendment rights of the slandered and libeled prevents the government from inhibiting free political expression, while guaranteeing that anyone else can. The first amendment is interpreted so broadly its its all but useless. Our politicians are prohibited from using statutes to inhibit speech, they have to firm PACs and Superpacs instead!

    The court isn't serving the constitution, the country, or democracy. Its covering its own ass. Actually doing its job would indeed make it a "truth commission. The illusion of unbiased nonpartisan objectivity would be much harder to maintain because the court itself would constantly be under attack as partisan no matter how it rules.--Unless it "courageously" simply refuses to do its job. Which is exactly what its always done.

    There's no other constitutional individual "right" that's so "protected" that the amount of harm you do others is irrelevant. So "protected" that however compelling the governments legitimate interest may be is irrelevant. So "protected" that any victims simply have no rights, as the "rights" of those who abuse their rights always supersedes the "rights" of victims. The courts even go so far as to outlaw anyone elses attempts to fairly protect the rights of people slandered and libeled.

    Our courts have no difficulty understanding every other provision of the constitution is about curbing and preventing government abuse of power, not its use of power. That one persons exercise of their rights may violate those of another. That compelling state interests may necessitate government infringement on individual rights.--But not when it comes to the First! When it comes to the First Amendment everyone in America joins our conservative right-wingers in simply refusing to accept reality.

    The Fist Amendment is one of our greatest achievements. The way we "protect" it is why instead of safeguarding political speech well-healed individuals and groups use the first amendment to silence political speech. Why instead of having a government "for the people" we have one for the special interests. One wholly indifferent to what the people want. Because the special interests get to control speech, and electoral outcomes, simply by lying, to discredit and silence the speech of others.

  9. [9] 
    LewDan wrote:

    I would like to add that constitutional "individual rights" are about protecting the rights of all people to "life, liberty, and the pursuit of happiness," except for the first amendment.

    It would directly harm no one if they could not express their political views. Unlike the others, the first amendment isn't about protecting the individual's rights, its about protecting democratic institutions, protecting the populations rights. Its our democracy, our collective freedom, our ability to govern ourselves, that that the first amendment protects. Not the rights of individuals to say anything they please.

    We, as voters selecting representatives to represent us in a democratic process, need to be able to make informed choices. Suppressing political speech may deny us the ability to do that.--And so do political lies, which is why the popular misconceptions about the first amendment, due to the courts unwillingness to do a thankless, though necessary task, is counterproductive and unconstitutional.

    The Fox News "fair and balanced" approach to the first amendment is no more fair and balanced when it comes to constitutional rights than it is with news. Treating everything equally doesn't guarantee either fairness or balance. It can, in fact, ensure that there is neither fairness nor balance simply by suggesting that two disparate things equate. There simply is no substitute for individual judgment made on the merits nor any way to avoid making individual judgments. Life just isn't that simple--or easy.

  10. [10] 
    akadjian wrote:

    Hey, this is my district!

    In probably the least interesting comment ever, what really strikes me about this case is how long it's taken to get to the Supreme Court.

    Drihaus hasn't been our representative for more than 4 years.

    Anyhoo ... we're making national news! Maybe now we'll be known for something other than Pete Rose, Marge Schott, Mapplethorpe, and/or race riots!


  11. [11] 
    Paula wrote:

    LewDan 8 & 9: Excellent points.

  12. [12] 
    Chris Weigant wrote:

    LewDan [8] -

    Interesting points, many of which I agree with. But I have a question for you. How do you think the US would be different (better or worse) if we had much stricter libel/slander laws, as in Britain. Do you think it would help things or hurt things? Just curious.

    David -

    Ouch. Well, there are plenty of districts out there that aren't known for ANYthing, good or bad. I guess there's that...



  13. [13] 
    LewDan wrote:


    I think political lies are, and always have been, the single biggest threat to this country and to democracy. The first amendment exists because democratic institutions effecting self-rule using a Republican government are impossible if the voting public are uninformed or misinformed.

    Nearly every violation of individual rights in this nation's history, (and the list is a long one; slavery, Indian wars, union busting, pas and present, prohibitions, alcohol and drugs, voter suppression, past and present, all depended on gaining popular support through campaigns of demonstrable lies.

    Political lies simply are not protected political opinions. The are statements crafted solely to inhibit and, if possible, silence the political speech of others, and to prevent voters from making informed choices at the ballot box.

    As I said, you can't always prove someone isn't lying. But in the most egregious cases you likely can prove someone is lying. Britains enforcement of libel and slander haven't eliminated political lying but its certainly inhibited it. You'd never see the pervasive, total fabrications, airing nationally 24/7 from dozens of sources, even AFTER they've been thoroughly discredited. (ACORN? Birthers? Benghazi?, PPACA?) Practically the entire Republican agenda the last five years, and nearly all of right-wing media for decades, relies almost exclusively on lying to misinform, mislead, confuse, and deceive voters.

    Enforcing effective libel and slander laws may not eliminate any problems but it will curb many of them. Britain also demonstrably refutes the supposition that political speech simply cannot be policed without inevitable massive partisan corruption. While we've demonstrably got massive partisan corruption because we lack enforceable slander and libel laws.

    So, yes, I think it would help. Our system actually does work. The wealthy, the special interests, have to use their money to buy politicians indirectly by buying votes. Paying for efforts to manipulate voters in order to control elected officials.

    I doubt I'd have a problem with that if they were restricted to truthful campaigns. Or, at least, restricted to truthful campaigns as much as possible. Persuading voters is what the system is all about. But there's a difference between persuasion and manipulation. Its the manipulation of voters that the first amendment is designed to prevent. The first amendment is NOT intended to ENABLE voter manipulation.

    Fraud is not just "salesmanship." Lying isn't just "opinion." Our courts pretending to be dumb, deaf, and blind to first amendment abuses doesn't "protect" anyone or anything. Rather they're enablers.--In fact SCOTUS as quite a track record of "interpreting" constitutional provisions into impotency. Their gutting of the fifteenth amendment in order to enable the latest round of voter suppression laws being the most egregious recent example. In fact its a twofer! As their new "interpretation" of section 2, that SCOTUS, not Congress, gets to decide whether legislation is "appropriate" also guts article 1, since the decision makes SCOTUS a legislative branch whose authority to write new law SUPPERCEDES that of Congress! SCOTUS now gets to write new law, throwing out out laws passed by Congress, not because they're unconstitutional by because SCOTUS considers them no longer "appropriate!"--Don't get me started!!

    Suffice to say I disagree that all speech is "protected" because I believe the constitution means what it says, not what SCOTUS says. I've no problem with reasonable interpretations of the constitution. (The Air Force is part of the Army mandated by the constitution even though planes hadn't been invented when it was written, for example.)

    But "interpreting" constitutional political speech protections to mean government cannot protect political speech since that would require trials, such as those expressly mandated by the constitution as the means of deciding legal disputes, because SCOTUS has decided the system designed by the constitution to decide issues isn't acceptable, isn't "interpreting" its "rewriting." (In direct defiance of yet ANOTHER constitutional provision, Article 5.)--Unlike the rest of America, I've a problem with that.

  14. [14] 
    LewDan wrote:

    BTW, I consider a LOT of SCOTUS "opinions" to be political lies. From Marbury v Madison on. Constitution created a powerless court in an attempt to ensure its objectivity and nonpartisanship. SCOTUS wasn't having it. They wanted political POWER. So they gave it to themselves.

    They ignored the constitution, lied, and effectively rewrote the constitution. And they've been lying, rewriting, and giving themselves more power ever since. And all through simply lying about what the constitution says, and what is, and is not, constitutional.

    NOTHING is more dangerous to our democracy than political lies.

  15. [15] 
    YoYoTheAssyrian wrote:

    While the example of britain is an interesting one, I think a few points need to emphasized about the pecularities distinctive to them.

    First, parlaimentary system, control of the executive and legislative is inextricably linked. While a far more majoritarian system, the problems of divided government do not plague them in the same way as they do us. If you control the parlaiment in britain, you literally get to pick the prime minister. So the current Obama situation could never be replicated in britain.

    Also, a much more dominant publically financed media and news orgnaization, the bbc. It's hard to underemphasize how operating from the same set of public facts reduces political partisanship. Britain has that, regardless of it's libel laws, we don't.

    So what I'm saying is that yes lies aren't great, but stricter libel and slander laws will not be a cure all, there are a lot of inter-related factors that go into anything.

  16. [16] 
    LewDan wrote:


    Granted, all of that. But having courts officially declare that political lies ARE lies would do wonders for getting us closer to operating on one set of facts. We have politicians and political parties touting thoroughly discredited lies for DECADES, with double-digit percentages of the population still believing them! At the very least we'd inhibit the media from validating lies as "opinion."

    Also I think billionaires financing propaganda campaigns would think twice if they thought that there was ANY chance they might have to face some irate jury's damages award. "Tort reform" being the number one issue among those who most think they might profit from lies.

    The prospect of facing real penalties does indeed inhibit behaviors. Big business and the wealthy are far more afraid of juries than they are of the Attorney General. And with good reason. Juries are much harder for them to control. And, unlike the AG, are uninhibited in prosecuting misbehavior.

    I agree, it won't solve our problems, but I think it would moderate them. Anything that even occasionally works is better than an unrestrained license to commit fraud. Look at climate change denial for example. The damage, the danger, political lies pose to us is incalculable. Not just temporarily inconvenient, or destructive. Some may actually be irrevocably suicidal.

  17. [17] 
    akadjian wrote:

    Ouch. Well, there are plenty of districts out there that aren't known for ANYthing, good or bad. I guess there's that...


    Heheh ... indeed! Maybe it's true what they say about publicity ...


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