“Men are so simple, and so subject to prone to be won over by necessities, that a deceiver will always find someone who is willing to be deceived.” — Machiavelli
Here’s an intellectual exercise for today’s political times. Should lying be allowed in politics?
Turn on the news. In one hour, we will experience fake news, gaslighting, lies, and “misstatements” from our elected officials, our senior government officers, and our candidates for office. Political deviations from the truth have become a fundamental part of America’s civic reality. So much so, that the term politicians is now even an insult when people are campaigning…to become politicians.
And while some are up in arms over a recent increase in political dishonesty, many Americans seem to shrug their shoulders and accept that there’s nothing to be done. But is this true? Should we punish leaders who lie in their political capacities?
Let’s consider a simple idea for a new nationwide law: Elected officials and candidates for office, should face legal penalties for lying to the American people.
More than a dozen states have, at some point in their history, passed laws that made it unlawful for politicians to utter lies, especially during campaigns.
In most cases, these laws have been struck down by the courts.
“The notion that the government, rather than the people, maybe the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Justice James M. Johnson wrote for the majority of the Washington Supreme Court in 2007.
A dissenting justice, Barbara A. Madsen, wrote that “the majority’s decision is an invitation to lie with impunity.” She added that the decision would turn “political campaigns into contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom.”
And though Madsen’s take may not have won the day, her prediction seems accurate. Right now, the leaders we elect into office are seemingly able to lie without fear of repercussion and do so to advocate for policy and win elections.
But the majority of the Washington Supreme Court did make reasonable arguments. “It naïvely assumes,” Justice Johnson wrote, “that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.”
And because that line is so thin, how would we punish elected officials for violating our hypothetical anti-falsity law? And how could a policy like this be implemented without completely trampling the First Amendment?
One argument is that the position of an elected representative is so important in a democracy, and the stakes of this position so high, that elected officials deserve to be held to a higher standard of speech.
How would we implement such a standard? This hypothetical law would need some rules. We’d have to pass a law that states it is illegal for politicians to present as fact information that they do not affirmatively know to be supported by a verifiable source. Which means, while in their official capacity, politicians would have to cite their source when making a claim or using a statistic about issues of national concern or policy. And if they can’t cite a verifiable course, they must state that what they are stating is opinion.
Doesn’t this trample our guarantee for free speech? Yes, it does.
America is a country that believes it is fundamentally based on certain freedoms. But none of our freedoms are without restriction. Even freedom of speech is not absolute. Libel, fraud, and perjury are all illegal and criminal convictions for these acts can and have been severely punished.
Plenty of professions also restrict fundamental rights when on the job — particularly professions where the stakes are high. It isn’t illegal to drink alcohol or get drunk, but airline pilots and surgeons can be severely punished for doing so while on the job. It is not illegal to promote your religion, but school teachers are prohibited from doing so while teaching, limiting their freedom of speech and exercise of religion for a higher civic good.
In today’s high-stakes political environment, isn’t there a compelling case to limit our politician’s speech to ensure basic honesty? Or is it enough to rely on the rest of our civic institutions — government watchdogs, journalists, think tanks, and mass media — to call out our leaders after the fact?
Just prior to the 1984 Presidential Election, Peter Teeley, then-Vice President George H.W. Bush’s press secretary, told the New York Times, “you can say anything you want during a debate and 80 million people hear it.” When he was asked what happens when the media reports that the candidate’s claims were false, Teeley responded, “So what? … Maybe 200 people read it or 2,000 or 20,000.”
Nearly 35 years later, social media has magnified Teeley’s observation. Today, an entertaining lie goes viral in an hour while the mundane truth barely trends.
But, when speech is the most potent tool for political change, can we feasibly expect our government to fairly adjudicate fact from fiction? Time and time again, our courts have said no.
“The [US Court of Appeals] found that anti-falsity legislation of this kind would only “open the door” to abuse: the law made it too easy for “anyone” to level a charge of falsity and thus trigger the statutory legal process, disrupting and likely chilling public discourse in the process. The court wrote that “the citizenry, not the government, should be the monitor of falseness in the political arena,” and, quoting Supreme Court precedent, added that “once they have done so, it is for them to decide what is responsible, what is valuable, and what is truth.” In another case striking down an anti-falsity state election law, a federal district court signaled the complexity of the citizenry’s task, writing that “ultimately, whether or not it is possible to create a system by which impartial citizens could identify lies from truth is unclear.”
And that very complexity is the problem with legislating political honesty despite the significant need. The potential for abuse, the difficulty with fair enforcement, and the fact that justice is meted out by flawed human judgment make judging lies nearly impossible to legislate.
So if the government can’t enforce this for the people, the only recourse left is for the people themselves to guard themselves against the imminent threat.
We Americans must actively seek the truth before making important civic decisions like casting our votes. And if we truly value honesty in our government, we must use our ballots and our political participation to reward those politicians who uphold the truth, no matter how inconvenient or mundane, and punish those who spread lies to shore up their own power. Even when offered something that wholly fits our worldview, we must still question the honesty of these “facts.” Perhaps especially when. If we don’t, then we are just asking to be deceived.
And, if we as a populace are too lazy or too easily distracted to demand honesty from all of our politicians, those who we agree with and those we oppose, then perhaps today’s exhausting and demoralizing state of affairs is one of our own makings.
Perhaps longtime political writer, Massimo Calabresi, said it best:
“If a democracy is weak enough that state officials have to take the place of voters and the press in determining whether politicians are lying, the experiment in self-government is probably in trouble.”