"Making it clear that the First Amendment does not protect political lies is one way to strengthen democracy and encourage better political behavior."

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Is there a First Amendment right to lie in politics?
By David Schultz, July 5, 2014

Should candidates or groups say whatever they want about an opponent, issue or themselves and have it protected as a form of free speech? Recently, the U.S. Supreme Court decided that a group had a right to challenge an Ohio law banning false campaign statements.

While case law suggests the law will be declared unconstitutional, there is a compelling argument that electoral lies ought not to receive First Amendment protection. There should be outer limits on what can be said in campaigns in order to promote democracy and the integrity of the electoral process.

Lying is wrong; even children know it. Philosopher Immanuel Kant asserted that deceivers lie to make themselves an exception to a rule that they expect everyone else to follow. We live in a world where we conform actions, make judgments and act as if others were truthful. Liars profit by taking advantage of this trust. If trust did not exist, then business would never exist. Contracts would be meaningless, promises futile.

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 advertising makes it difficult for consumers to make informed choices.

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.

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 Barack Obama is not a U.S. citizen.

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. 

Finally, 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.

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. 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.
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