These are tough times for the First Amendment. This is especially true in the world of politics where one has to ask whether there is a First Amendment right to lie. Should candidates or groups say whatever they want about an opponent, issue, or themselves and have it protected as a form of free speech? The Building a Better St. Paul attack ad on mayoral candidate Melvin Carter III tests this proposition and what the free speech amendment should allow.
In its 1964 New York Times v. Sullivan decision the Supreme Court drew an outer limit to what is protected speech when it comes to press criticism of public officials. In that case it said that for public officials to prevail in a libel suit against a newspaper, they must show reckless disregard for the truth, or malice. The idea here is that for the sake of promoting an open and accountable government, newspapers should generally be permitted to criticize the government and its officials, even if some factual errors are published. Sullivan narrowed the grounds for finding that the media have engaged in libel, liberating them to publish and criticize public figures, even if they do not always get the facts 100 percent correct. The “absence of malice” standard articulated in the case was justified as an effort to promote wide-open and robust criticism, a function that is consistent with the core goals of the First Amendment Free Press Clause.
A different standard for politics
Many states have sought to establish the same reckless disregard for the truth when it comes to political speech and criticisms by candidates and groups, declaring that there is no right to lie in politics. The Supreme Court has opted not to apply this standard, leaving it up to the public, the press, and the marketplace of ideas and ultimately the ballot box to decide what is acceptable speech. Additionally, the 8th U.S. Circuit Court of Appeals in 2011 effectively said it was OK to lie in politics in the case 281 Care Committee v. Arneson. The court was concerned with how such a law would chill free speech. While the decision may make constitutional sense, what Building a Better St. Paul did stood right at the legal edge of the Sullivan standard, testing many of us who want to defend the First Amendment.
Building a Better St. Paul lied about Carter. Lying is wrong; even children know it. Prohibitions against lying outside of politics are often legally enforced. Perjury is wrong and punishable by law. False advertising is regulated as deceptive. Ethically there should be no debate that lying is wrong in politics. 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 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.
Voters increasingly cynical
Surveys indicate that a majority of Americans think quite a few politicians are crooks, and barely a quarter of the population trust the government. There are many reasons why the voters have become increasingly more cynical about politics and why they distrust politicians. What Building a Better St. Paul did is at the root for much of this cynicism and distrust.
The First Amendment protects political lying, but for those of us who want to defend free speech this type of behavior tests the limits of what our Constitution should permit. There needs to be some effective sanction that polices the political marketplace of ideas so that truth is not suffocated by lies. While I do not have an answer to what that sanction is, the best defense is to encourage more speech and debate, be informed, be critical about what you read and hear, and support institutions such as a free press that are vital to exposing political lies.
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