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.
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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