Is there a First Amendment right to lie in politics? In adjudicating the constitutionality of Minn. Stat. § 221B.06, which makes it a gross misdemeanor to disseminate a political communication about a ballot measure that one knows is false, the Eighth Circuit Court of Appeals recently said yes in 281 Care Comm. v. Arneson [PDF], throwing out a law more than 100 years old. The decision also questions whether another part of the law – making it illegal for candidates to lie – is constitutional. The court was concerned with how such a law would chill free speech, rejecting the claim that the state has an interest in preserving “fair and honest” elections and in preventing a “fraud upon the electorate.”
Was the court right? There are many reasons to question the court’s analysis, and to argue that the First Amendment should establish an outer boundary on acceptable political behavior. What role should truth or lies have in politics?
There are really two questions here: The first is to ask about the ethics of lying; the second is the permissibility and constitutionality of deception in politics. Generally, lying is considered ethically wrong. Even children know this. Across cultures, lying has been frowned upon as wrong. Philosopher Immanuel Kant provided perhaps one of the most powerful arguments against lying in asserting that deceivers lie in order to make themselves an exception to a rule that they expect everyone else to follow. By that, we live in a world where we generally expect people to tell the truth and we conform actions, make judgments, and act as if others were truthful. Liars profit by taking advantage of this expectation.
The need for trust
Lying is wrong because if such a practice were universalized – if we lived in a world where we did not expect truth telling – it would be nearly impossible for most social interaction to occur. Political scientist Robert Putnam has examined the role that social capital plays in terms of enhancing political participation and commerce in society. Social capital is related to trust. So much of what makes commerce, business and most human interaction possible is trust; it is the idea that we can expect people to keep their word or that they will follow up on their promises. Simply put, if trust did not exist in the world then business, except for perhaps face-to-face bartering, would never exist. Contracts would be meaningless, promises futile.
Yes, there are some exceptions to truth-telling in our private lives. Lying to save a life is acceptable. One might also assert that lies to encourage people – telling children they did a good job when they did not as a way to motivate them to work hard – might also be acceptable; however, they are still considered lies but are permitted exceptions. Here truth-telling must be balanced against other competing objectives, and in some cases the latter weigh more heavily. But in general, lying is wrong in our private lives and such a prohibition is often enforced. Perjury is wrong and punishable by law. False advertising is regulated as deceptive. In both cases, the justification is that the lies distort the search for truth and the marketplace of ideas.
In law the adversarial system is supposed to discover the truth, but that does not mean that witnesses can lie and that lawyers should facilitate that. Instead, the adversarial system relies on all parties playing fairly and not lying. Clear lies make it difficult for juries to do their job in sorting out the facts to determine the truth. Similarly, false advertising corrupts the marketplace of ideas, making it difficult for consumers to make reasonable judgements when making purchasing decisions.
Now the problem is how to apply the prohibition against lying to politics. Plato spoke of the noble lie about the origin of social hierarchies to promote social harmony. Machiavelli approved of the prince lying as a means of staying in power. And sociologist Max Weber distinguished in “Politics as Vocation” Christian ethics from the ethics of ultimate responsibility, the latter where politicians weighed truth against other competing values. Such logic, according to Sissela Bok in her classic “Lying: Moral Choice in Public and Private Life,” has led politicians such as Richard Nixon to justify deception to promote national security, prevent hysteria, or protect people. But as Bok cogently asserted, such a utilitarian justification for lying is often self-serving, paternalistic, and, more important, undermines democracy in the sense that it prevents the people themselves from being able to make informed choices. Telling the truth promotes democracy; lying hinders it.
Personal integrity is not always enough
If government officials should not lie, what about individuals, candidates and groups involved in campaigns and elections? Should they be allowed to lie about the record of others, to distort the facts on ballot propositions, or simply to lie in the context of political debate? Ethically there should be no debate, and one should hope as a matter of personal virtue and integrity that this would be the case. But personal integrity is not always enough. American politics is littered with records of personal lies and deceptions, be it Bill Clinton’s false assertions about his relationship with Monica Lewinsky or Swift Boat Veterans for Truth distorting John Kerry’s Vietnam record. Something more is needed to encourage personal integrity in politics, much in the same way that legislatures add legal sanctions to encourage it in court. When the stakes are great, the incentives are often too tempting to lie.
The Supreme Court has already ruled that deception lies outside of First Amendment protection. In McIntyre v. Ohio Elections Commission (1995), it ruled that the government had a legitimate interest in preventing fraud and libel in campaigns where false statements might have “serious adverse consequences.” Promoting the integrity of the electoral process was a legitimate reason to prohibit deception.
Second, as noted above, one cannot always rely upon personal integrity to guarantee political participants will tell the truth. Lies occur, and one cannot always rely upon the marketplace of ideas to ensure that the public will be able to sort out fact from fiction. Over a quarter of the population still believes that Barack Obama is not a U.S. citizen. As Michael Delli Carpini and Scott Keeter point out in “What Americans Don’t Know About Politics and Why It Matters,” is that many voters are woefully ignorant about politics. They simply lack the knowledge or skills to distinguish fact from falsehood. They rely upon political actors to tell them the truth so that they can make informed decisions. Lying prevents that. It defines an outer limit on deception. Without any limits, there are no real sanctions against lying. Some might argue that electoral defeat is the sanction, but in many cases the political process cannot be counted on to smoke out lies and punish accordingly.
Third, prohibiting lying actually enhances robust debate and democracy. Much in the same way that prosecuting perjury strengthens the adversarial process, drawing limits on deception in politics does the same.
Who should decide what is true?
Finally, there are two remaining arguments used to argue that political lies should be protected by the First Amendment. One is the claim that the people should decide what is truth and that the government should not be making decisions about political orthodoxy or veracity. In general both assertions are true, but the judicial process – especially juries – make decisions about truth all the time. Juries often have to make decisions about witness credibility, determine what the facts are, and render decisions on whether libel, slander or false advertising occurred. The judicial process is all about making decisions about what is the truth. Determining whether someone has lied politically can also be judged by the people through the courts. The other claim is that there is no standard determining when someone has lied. In N.Y. Times Co. v. Sullivan, 376 U.S. 254, (1964) the court articulated the actual malice standard in the political defamation context, defining the boundary between what is and is not protected by the First Amendment.
There are many reasons voters have become increasingly more cynical about politics and why they distrust politicians. Surveys suggest that major factors are 1) public perception of increased lying in the political process or 2) that they cannot trust politicians. Perhaps making it clear that the First Amendment does not protect political lies is one way to strengthen democracy and encourage better political behavior.
David Schultz is a Hamline University professor of political science and the author of “Election Law and Democratic Theory” (Ashgate, 2014) and “American Politics in the Age of Ignorance” (Macmillan, 2013). He blogs at Schultz’s Take.
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When everything is a lie & accepted…yell ‘Fire’ in a theater
Very good article & an important one to discuss.
Thanks for this.
The Right to Lie is protected speech?
Is there conversely a Right to Truth?
TRUTH may be outside of constitutional protection,
yet one can’t yell “fire” in a crowded movie theater.
Interesting topic, but one we’ll never settle because people on opposite political sides will always defend the lies of their elected representatives.
Case in point.
Lefties claim GWB outright lied about the infamous “weapons of mass destruction”. The evidence doesn’t support that, but he certainly is guilty of the lie of fact mining, which in my opinion is just as damning. Worse, Republicans, and Democrats propagated the story. Problem is, even today, most Republican’s won’t admit that.
Conversely, we have Obama’s infamous “Keep your plan” lie, which the evidence (and Politifact) supports being an actual, outright lie. Try getting a lefty to admit that.
Politicians lie because the public’s got their backs.
Can’t be settled?
I agree with you that politician’s lie because the public lets them get away with it.
But what about lies in a campaign? If we can agree that the evidence will show it, do you disagree that there should be a legal procedure for challenging and proving a politician’s lies in a campaign?. You cite Politifact which suggests you think it is a reliable checker of the facts. I’m not sure about that, but if Politifact can be trusted for calling out and proving lies made in a political campaign, why shouldn’t there be a procedure and a penalty for lying and getting caught at it? I haven’t read the 8th circuit decision Mr. Schultz refers to, but without even reading it, it seems very wrong to me.
But what about lies in a campaign?
Yeah well, there’s the rub.
During campaigns, politicians make “disingenuous promises”. For instance, I’m sure Dayton meant what he said when he promised to tax the snot out of rich people, and spare the middle class “working families”. It wasn’t until he got elected on that promise he spent a minute to actually think about it, changed his mind and poured it on for everyone.
And that’s a case where the politician himself made the false promise. These days we have third parties telling most of the tall tales.
Hopefully
the Eighth Circuit’s decision will be appealed and reversed by the Supreme Court. I cannot conceive of how the Court could have thought that lying or deception could be protected by the First Amendment but then again I still can’t see how imposing limits on campaign contributions or contributions to PACs is “free speech” or why the interest in preventing corruption is not compelling enough to justify such limits.
I might have more to say if I could read the Eight Circuit decision mentioned, 281 Care Comm. v. Arneson. The case linked to is some other decision.
Too Overwhelming in Heaven & Earth to Change?
Skipping the needless distraction of supporting, or disproving your examples, or their relative weights…
RESIGNATION & CAPITULATION ARE NOT SOLUTIONS
What is your Swift Solution to the Dilemma of Lies?
Don’t vote for liars.
Need a better grasp of LIES, then…
No WMDs & a messy war
does not compare to
health plans dropped by the providers. (What you call a lie).
This bit of critical thinking is important in making good decisions.
I guess we’d have to delve in to what critical thinking is, before what constitutes a good decision. Pity, but there we are.
It doesn’t take much delving into critical thinking
to realize that lies in answer to these two questions are not of comparable weight:
Johnny did you do your homework?
Does country x have weapons of mass destruction?
To pretend that this situation requires intense discussion of critical thinking is merely an evasion.
Link to Eighth Circuit decision
The link referenced by Jon Erik Kingstad has been fixed. Thank you, Jon. — Susan Albright
Truth in Politics
Use the initiative process to get new rules in place for campaigns – why not try these to encourage truth in campaigns:
1) Candidate ads may only reflect their position on current issues or items that they hope to promote for the future. General Mills does not spend time in their ads denouncing Frosted Flakes or trying to incite fear against bacon and eggs….they spend their time promoting the benefits of Cheerios and Wheaties.
It goes without saying that in politics that you think the other guy is not up to the task if you are running for that job. Let political reporters and the debates take care of any false claims the candidate makes about themselves or the issues. By limiting candidates to running ads ONLY to communicate their position on issues, then the negative ads we all hate would become a thing of the past. Voters can then make more effective comparisons.
2) Go ahead and have unlimited campaign contributions but limit them to only those that are from within the State. Billionaires from Kansas or New York may be interested in Senator Franken, but they are not his constituents. If Medtronic or Target wants to overshadow the citizens of MN in electing their Senators or Congressional representatives, then let them since they are headquartered in MN and would be subject to MN feedback. Hedge funds based in NY that want to contribute $ 10 million to a race but has no direct interest in MN nor would they suffer any feedback from the citizens. It is not the money unleashed by Citizens United that is the issue….it is the lack of accountability to the geographical area that would be represented by that political office. This initiative needs to be paired with #3.
3) Within 120 days of the election, as part of fulfilling their public airwave requirements — TV and radio must allocate 150 minutes of free airtime to each candidate for Federal office. The candidate can “spend” that allocation in whatever manner they wish over the course of those 120 days.
These 3 things would help to get the Truth back into politics.
Thank you Kathy Speed.
A pragmatic presentation guideline like your number 1) would have candidates present and promote their actual ideas, but not allow the smear, insult or negativity toward the opponent.
How refreshing! “Speak no ill of your opponent and brag all you want about yourself.”
Your number 2) could even be legislated in election law. No money from outside the candidate’s geographical constituency is allowed. That makes perfect sense and is consistent with letting those most affected by the election pay for the campaigns.
Your number 3) is delicious idealism.
———————–
Are we doomed to such a low level of discourse just because Murdoch and Ailes perfected such a highly profitable and effective propaganda industry?
Is Crossroads GPS really focused on “issues” as the 501 (c)4 requires?
Nah. They are focused on propaganda.
If truth is relative…
It is increasingly difficult to call a statement a “lie” when many define” truth” as relative.
If the ethical basis for saying that lying is wrong is built on standard”… it would be nearly impossible for most social interaction to occur” is troubling.
Social expediency is an inadequate standard for providing an ethical basis for establishing morality.
Not in politics
“By that, we live in a world where we generally expect people to tell the truth and we conform actions, make judgments, and act as if others were truthful.”
If We Were to Take Seriously the Commandment
“thou shalt not bear false witness against thy neighbor,”
the DFL would have a lot less to say,…
the GOP would be rendered completely mute,…
and weasel news would broadcast nothing but dead air.
The reality is, because we have reached the point where it is often the case that those who most loudly tout their religious bona fides are precisely those most likely to violate the most basic dictates of their own faith,…
our society threatens to unravel from within.
Basic honesty at every level is one of the foundational cornerstones of any functional society. When we chisel those stones into dust, for no other purpose than to gain more for ourselves than our efforts could be reasonably justified to provide,…
or in an effort to gain or maintain advantage for the particular group of which we are a member,…
when our entire society revolves around the principles of hoodwinking our neighbors out of whatever we can dishonestly finagle from them,…
and taking from others whatever we can get our hands on, even though we haven’t worked in ways that provided our friends and neighbors the benefits which would justify our continue possession of whatever financial or other resources we have withdrawn from the society,…
our very lives become lies.
NOTHING; not our own lives, nor our society, nor our nation, can remain intact for long when its foundations, among them the basic expectation that we will tell the truth, have been willfully destroyed for no purpose other than selfishness, expediency, and the hope of personal gain.
Not Just Politics
I think it is tragic that our standards of truth in politics have eroded to the extent that I (and I believe most others) disbelieve political statements by default – even when made by or on behalf of politicians I support.
However, I just got a reminder in the mail today that it is not only in politics where that sorry state exists. I got a flyer from ThePhoneCompany proclaiming proudly, “TPC is proud to bring 1Gig Internet to your city. (in select areas only) Speeds up to 40 Mbps (where available) High-Speed Internet + Unlimited Nationwide Calling $69.95 a month for 3 years Price-Lock Guarantee” Of course, the parentheticals were in almost-unreadable type.
Was that a lie? Well, they had my city’s name printed right by the 1 Gig statement, yet it is available nowhere in my city, or even close. The 40 Mbps for $70/month for three years? No, the best they actually offer is (up to) 12 Mbps for $90/month, with a 1 year “Price-Lock”.
I believe anything intended to make the recipient believe something other than what is demonstrably true – no, let’s discount that to “at least possible” – is a lie, whether political, commercial, or otherwise. As long as society lets liars get by with these practices, our standards will decline. And as long as we allow our standards to decline, we will get less in return for either our dollars or our trust.
Lying in politics and money in politics are analogous.
First, under constitutional doctrine, both may be regulated as limits on free speech to vindicate the “compelling state interest” sine qua non of a functional democratic political system.
Second, neither is an independent problem, but just derivative of the more fundamental problem for democracy: a voting public that on the whole is deeply uninformed and uncaring about its civic role. Political lying and political ads have no effect on folks who are informed and thoughtful, except as examples of propaganda to analyze and be entertained by. Though both lying and money legally may be regulated, doing so effectively without undesired consequences is challenging. But if we had a thoughtful voting public, both issues would evaporate.
Political lying relies on the greatest political non sequitur of all: namely, that a criticism of one party supports the position of the other. Lying is almost always about attacking one’s opponent, almost never about stating one’s own position. The non sequitur derives from viewing politics as a sporting event. If voters understood that civic participation is about figuring out public policies rather than defeating “the other side” at all costs, they would demand to know policy prescriptions and would not derive their greatest political satisfaction from mere vicarious gladiatorial victory.
The sporting event analogy (blood sport, even) originates on the right side of the political spectrum, where the predominant propaganda appeal is the authoritarian one: there’s a scary “other” and we’ll protect you against it. The highest political value becomes protecting your clan from the other clan. Historically, the liberal standpoint was the “behind the veil” standpoint of Kant and John Rawls: form policy views that work best for society without consideration of your own (or your own clan’s) place in that society. But by now the sporting event frame has deeply infected the liberal’s perspective, too.
The establishment press, punditocracy and (sorry, Professor Schultz) political science discipline contribute mightily to maintaining politics as sporting event between the two political parties. Not coincidentally, this frame is profoundly congenial to keeping the population politically passive and maintaining the status quo (bread and circuses, without the bread). The best place for a thoughtful citizenry to find sound policies to govern ourselves usually is completely outside of the narrow, carefully policed confine of the Republican-Democratic continuum. A lot of folks don’t want the citizenry wandering out there, so we get Rock-em Sock-em Robots instead.
Why should the courts decide?
The author used the Swiftboating of John Kerry as an example of a lie. But in my opinion Kerry was the one who misrepresented his service in Vietnam, not the Swiftboaters. People in the courts don’t know anymore about what the truth is than I do or the author of this article does. Let the people who hear the speech decide, not government officials.
Your opinion
does not equate to fact. Much of their smear has been thoroughly discredited. Not that the truth matters to you, your post makes it quite clear that you’re much more interested in hearing things that conform to your political ideology than actual truth. Thanks for proving the author correct.
Why, indeed…
The courts get to decide these things because that’s their constitutionally-mandated role. It’s their job. The whole point of a trial – or in the case of the SCOTUS the arguments and briefs presented to the court – is to arrive at “the truth,” or the best approximation of that truth that is humanly possible. It’s a standard that courts don’t always meet, but they generally come closer, and do so more often than, say, a political ad, or a candidate’s speech.
As for “swiftboating,” whether Mr. Kerry misrepresented his Vietnam service appears largely to depend upon your political leanings. See http://www.snopes.com/politics/kerry/swift.asp
Part of the issue – and part of the problem, as highlighted by your comment, and detailed by the article’s author – is that the public is generally woefully uninformed. Letting “…the people who hear the speech decide” whether something is true or not is a reasonable and rational approach only if “the people who hear the speech” are themselves already informed and knowledgeable about the issue. There’s plenty of research to show that people in general are *not* especially well-informed, and several comedians have made good careers of “man-on-the-street” interviews that display someone’s ignorance of what might even be considered common knowledge. In politics, especially, a knowledgeable and well-informed citizenry is a standard, sadly, that’s not often met.
Swift Boats and Truth
Ray, the Snopes article that you link mentions that many of the Swiftboat statements aren’t really classifiable as true or false. Which makes sense when you’re talking about people remembering things that happened 35 years prior. This means that whether or not you believe Kerry or his comrades comes down to how you judge the character of the people. Not surprisingly, that correlates pretty strongly with the political views of the people involved. Or, as Rosalind Kohls said, the courts don’t know the TRUTH nor does the author of the article. (As an aside, I’ll mention that Kerry could take the Swiftboaters to court for defamation. Has he?)
So we have a charge without proof one way or another. But the author would clearly strike down any ad that mentioned the Swiftboaters, right? Because, to him, it’s a ‘lie’. Would he strike down an ad that suggests that W. Bush lied us into war? There’s no proof there either.
What about ads that mention how Obama misled people as to whether they could keep their doctors and health plans? Was that a lie? Who gets to decide?
The way to defeat bad speech is with more speech. This is a thinly veiled attempt to rule some speech out of bounds. It’s not hard to see who would get to decide which speech is outlawed: the powers that be.
No thank you. I don’t want lies in deceit in politics but if the choice is between letting some people lie and letting a board sit in judgment as to what can be said, I’ll go with the free speech option everytime.
“Much” “Thoroughly”
Jason says, “Much of their smear has been thoroughly discredited.” How much? How thoroughly? Beyond a reasonable doubt? 51-49%?
Since you say Rosalind has proved the author correct and is therefore lying, should she face civil fines? Misdemeanor charges?
Does it make a difference that her lies are published in the news media, since they are exempted from the statute at issue?
“Much” “Thoroughly”
It depends upon your political leanings.
http://www.snopes.com/politics/kerry/swift.asp
Whether Ms. Kohls should face some sort of civil penalty if she is willfully not telling the truth depends upon the laws of the state.
“Much” “Thoroughly”
How about a criminal penalty under the law defended by Professor Schultz?
Ms. Kohls can believe anything she desires
My point is that for too many people, truth comes second to the desire to surround ones self with “facts” that support a particular political ideology. As for civil fines, and charges, Ms. Kohls deserves neither, but certainly some of the swifboaters do.
“Much” “Thoroughly”
Jason, if “some of the swiftboaters do,” which ones? And I am not looking for a hyperlink. If you support criminal and civil action against political speech, you should specify exactly what speech. Vague words like “much” and “some” are not helpful.
Political speech?
or defamation? You clearly have the ability to research this yourself, but you obviously have an agenda. And I haven’t the time nor desire to cut and paste answers that you don’t really care about it. What exactly do you need help with?
Political speech?
Not asking for help. Asking you to justify your position. You are advocating criminal and civil penalties.
The First Amendment right to lie
Thanks for fixing the link.
This decision discussed by professor Schultz is troubling at many levels, not least of which is its endorsement of what can only be described as a “First Amendment right to lie.” The judges seems to be caught up in the idea that the law itself creates the possibility of lying and thereby interfering with the First Amendment and the electoral process.
But a lot of this decision is also about the problem of “standing” and whether this group is really threatened by this law so that it could only have the case decided by a federal court. There are a whole bunch of complicated “standing” rules in existence now all designed to throw out litigants who have meritorious claims. Yet this panel of the Court identifies only one which this group easily passed.
The Court gets to the main issue by speculating about the terrible burdens this group would face if it had to defend a false complaint of making a false statement rather than on supposing what this law actually prohibits and applies to: making a truly false statement during a campaign. The Court can go on and on about how “countertruth” is the only real remedy, but the reality is that “money” is what really talks and that those without money have nowhere else to go if they face a well financed campaign based on falsehood. What this Court has done is endorse what standing this group really has, i.e. that it has already conducted or it is planning to conduct a campaign based on lies and it had a First Amendment right to do so.
That seems to be the logical conclusion of all the “money is speech” buncum.
It is time for the media to call a lie a lie
All too often the media shies away from calling candidates out on their lies, simply parroting what candidates say with no analysis. Because of this ruling it becomes all the more important for the media to play the important role it can play in elections – documenting the lies and informing the public of them.
Where are ….
we that a right to lie is even being discussed
Background Matters
Since I am in the Robbinsdale school district (281), so this discussion is very interesting. We had a school referendum going and 281 Care was against it. So they started to disseminate information that the district considered untrue. The belief being that 281 Care was “intentionally” trying to deceive and confuse voters so that the would reject the referendum.
I communicate occasionally with members of 281 Care and the District, and to this day I have no idea if it was mailicious intent or just different interpretations of reality.
So should citizens be free to say what they believe to be “the real scoop”? Even if the establishment denies it…
“Different Interpretations of Reality?”
Gravity too, is then a “different interpretation of reality.”
One day skydivers will exit a plane
& fall away into the sun!
Everybody gets their own “truth” – even to the point of defying gravity?
Facts vs Statements
Let’s pick something more nebulous and divisive.
Who is lying about climate change, ACA, Fracking, etc? Or
We see “out of context” ads everyday during election season, when do these become lies?
I don’t think us commenters lie intentionally, but our interpretation of what reality is is very different.
Who Decides?
Of course I don’t want lies in political advertising, but who makes the call as to what is a lie here? The author suggests that juries make these decisions all the time. Well, talk me through the process then. Are we going to have juries look at each ad before it’s aired? Or are we talking about some kind of process for after they’re aired?
What kind of defenses are in place to keep the truth squads from being used in a partisan manner? Scott Walker has been attacked by a John Doe prosecution that seems to be completely baseless and partisan in nature. Rick Perry was indicted by a partisan grand jury on baseless charges. The IRS has acted improperly (to say the least!) towards the President’s enemies.
Why in the world should anyone believe that this won’t be used as a political weapon?