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The Constitution should not protect a right to lie in politics

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Negative political ads, especially if untruthful, should not be given constitutional protection.

Negative attack ads are bombarding Minnesota politics. Many are of questionable accuracy. Should candidates or groups say whatever they want about an opponent, issue, or themselves and have it protected as a form of free speech? While the Supreme Court has ruled that these ads are protected by the First Amendment, a good argument can be made that there is no constitutional right to lie.

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David Schultz

First, why so many negative attack ads in Minnesota? The simple answer is that they are effective. Minnesota elections have become competitive, and close elections often produce negative ads. These ads are able to mobilize voters, both partisan and swing, to vote against candidates, or they persuade some not to vote. In either case, these ads will continue to be used so long as voters respond to them.

But such ads, especially if untruthful, should not be given constitutional protection. Lying is wrong; even children know it. Prohibitions against lying are often legally enforced. Perjury is wrong and punishable by law. False advertising is regulated as deceptive. 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. Courts rely on all parties playing fairly and not lying. Lies make it difficult for juries to do their job. False commercial advertising makes it difficult for consumers to make informed choices, thereby providing the classic justification for their regulation.

Personal integrity is not always enough

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, Swift Boat Veterans for Truth distorting John Kerry’s Vietnam record, or  statements by President Donald Trump that many fact checkers find to be of questionable accuracy. Something more is needed to encourage personal integrity in politics.

This brings us to the question: Is there a First Amendment right to lie? The 8th U.S. Circuit Court of Appeals in 2011 effectively said yes in the case known as 281 Care Committee v. Arneson. The court was concerned with how such a law would chill free speech. Was the court right? There are many reasons to question its analysis.

First, the U.S. Supreme Court has already ruled that deception lies outside of First Amendment protection. In its 1995 McIntyre v. Ohio Elections Commission decision, it ruled that Ohio 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, 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 former President Barack Obama is not a U.S. citizen, we never landed a person on the moon, or that George Bush and the CIA planned the 9/11 terrorist attacks.

Many voters rely on people telling the truth

Michael Delli Carpini and Scott Keeter point out in “What Americans Don’t Know About Politics and Why It Matters” that many voters are uninformed about politics. They rely upon political actors to tell them the truth so that they can make informed decisions. Lying prevents that. Laws prohibiting political falsehoods define outer limits 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. Moreover, once lies have been circulated, especially in a social media era, they are hard to correct, and evidence suggests deception travels more quickly and deeper than the truth.

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. Similarly, policing deceptive commercial ads yields better consumer choices and operation of the market place.

One more reason for cynicism

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 voters have become increasingly more cynical about politics and why they distrust politicians. Perhaps public perception of increased lying in the political process is a factor.

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 a visiting professor at the University of Minnesota Law School. His latest book is “Presidential Swing States: Why Only Ten Matter.” 

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Comments (8)

  1. Submitted by Ray Schoch on 10/18/2018 - 10:41 am.

    Write the statute, professor. Or make it a project for your grad students to complete.

    One of the more egregious liars in the public arena now inhabits the Oval Office. Not only is he not penalized for the lies he continues to tell, a sizable segment of the population – many of them apparently not knowing any better – continue to support him, despite the seemingly unending string of falsehood emanating from the White House.

    Meanwhile, I’ve pretty much turned off my television until election day in an effort to avoid having to listen to the lies being put forth by almost every candidate in Minnesota who can afford to buy the ad time, but especially by attack ads from the Republican Congressional Committee. The GOP has apparently sold its soul, and doesn’t mind telling viewers that the sun will rise in the west tomorrow if doing so will win an election.

    It’s no wonder that many people are so disgusted that they insist they’ll have “nothing to do with politics,” not realizing that politics is basically the lifeblood of a democratic society. Insisting that criticisms of one’s political opponent or her/his policy proposals be based on fact might eventually encourage greater participation in the political process – something truly necessary if something approaching a democratic society is to survive.

    • Submitted by Jon Kingstad on 10/18/2018 - 09:06 pm.

      I agree with you, Ray. But here’s a link to the Minnesota statute Professor Schultz was talking about.
      https://www.revisor.mn.gov/statutes/cite/211B.06

      I don’t know how anyone could draft a law that would get around the implacable and rather absurd, circular logic that equates money with speech and corporations having “personhood.” I was unaware of this particular decision holding the statute unconstitutional until I read this comment. I agree with the Professor that their analysis is questionable. It all goes back to those earlier series of decisions from Buckley v. Valeo and through Citizen’s United which essentially posited or assumed that money is speech and corporations were entitled to First Amendment protections and then reasoned circularly to a predetermined result. It’s just the vote of five men of a body of nine. This will continue until one or more of them changes their minds and sees how foolish, erroneous and damaging these decisions have been or they are replaced by a wiser majority. Or we can get that Constitutional Amendment overturning Citizen’s United or Buckley passed.

  2. Submitted by John Evans on 10/18/2018 - 11:48 am.

    Perhaps we should be holding broadcast media outlets accountable for the accuracy of the ads they run. We do have an FCC, you know. And those ads are paid for, and are therefore commerce.

    • Submitted by RB Holbrook on 10/19/2018 - 08:59 am.

      That deflects the responsibility from the real liars. It would also put broadcasters in the uncomfortable position of censoring political ads, or trying to make their own determinations of whether an ad is false.

  3. Submitted by Karen Sandness on 10/18/2018 - 04:24 pm.

    A Republican-dominated Supreme Court would probably reject a ban on political lying as un-Constitutional, but there is nothing in the Constitution of either the U.S. or Minnesota that requires a media outlet to accept every ad that is offered.

    I’d like to see one broadcast TV station take the lead and say, “We are going to fact-check every political ad that is presented to us and reject the ones that lie or distort the truth. If the other stations want to prostitute themselves to anonymous political operatives for money, that’s their problem, but we’ll go with truth.”

  4. Submitted by Moira Heffron on 10/20/2018 - 03:10 pm.

    Karen, I so agree with your idea! I also wonder if it’s been noticed by other advertisers how people are turning off programs where we are hammered with outrageous ads.

  5. Submitted by Bob Barnes on 10/31/2018 - 11:17 pm.

    Sorry but this is nonsense. People have the right to say anything they want. If someone slanders/libels or otherwise harms another, that person can take them to court. Restricting a right is never the answer. That just leads to fewer and fewer freedoms and rights.

  6. Submitted by Darcy Metz on 11/04/2018 - 08:29 am.

    Some of you are very partisan and can only see things from your party’s point of view. In the past I have voted along both party lines, but I began to see a huge flaw in that thinking. As a faithful voter, who has seen the problems on both sides, I urge you to research your candidates. See what they truly stand for. There is plenty of lies and deceit on both sides. Neither party is telling the truth and if you believe they are, you are part of the problem.

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