Lying liars and the lying liars who point them out

How can you tell when a politician is lying?
His lips are moving.

It's in the list of Thou Shalt Nots, number 9 in the Decalogue (except for those who count it as 8, but that's beside the point here).

Thou shalt not bear false witness against thy neighbor.

(As the King James Version puts it.)

It's one of those things you were taught in kindergarten.  And really, nobody much disputes the general principle that lying is a bad thing.*  Which means, of course, that it should be a crime.  Because every bad thing should be a crime, right?  After all, can't have people doing bad things.

Except, well, there's that sticky First Amendment.  Consider Xavier Alvarez.  Anthony Kennedy described him in United States v. Alvarez.

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U.S.C. § 704.

In its then-current form, the Stolen Valor Act provided

"(b) FALSE CLAIMS ABOUT RECEIPT OF MILITARY DECORATIONS OR MEDALS. — Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States ... shall be fined under this title, imprisoned not more than six months, or both.
"(c) ENHANCED PENALTY FOR OFFENSES INVOLVING CONGRESSIONAL MEDAL OF HONOR. —
"(1) IN GENERAL. — If a decoration or medal involved in an offense under subsection (a) or (b) is a Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall be fined under this title, imprisoned not more than 1 year, or both."

And the Court said 

No.

Kennedy explained, citing Orwell's 1984.

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth.

While the Court wasn't unanimous in result or rationale (the vote was 6-3, but Kennedy's opinion was only for himself, Roberts, Ginsburg, and Sotomayor; Breyer wrote separately for himself and Kagan agreeing that the law was unconstitutional but in a far less sweeping opinion), the point was made.

Which brings me to the Ohio Revised Code, Section 3517.21, the one that makes it a crime to lie in an election campaign.  Really.

(B) No person, during the course of any campaign for nomination or election to public office or office of a political party, by means of campaign materials, including sample ballots, an advertisement on radio or television or in a newspaper or periodical, a public speech, press release, or otherwise, shall knowingly and with intent to affect the outcome of such campaign do any of the following:
(1) Use the title of an office not currently held by a candidate in a manner that implies that the candidate does currently hold that office or use the term "re-elect" when the candidate has never been elected at a primary, general, or special election to the office for which he or she is a candidate;
(2) Make a false statement concerning the formal schooling or training completed or attempted by a candidate; a degree, diploma, certificate, scholarship, grant, award, prize, or honor received, earned, or held by a candidate; or the period of time during which a candidate attended any school, college, community technical school, or institution;
(3) Make a false statement concerning the professional, occupational, or vocational licenses held by a candidate, or concerning any position the candidate held for which the candidate received a salary or wages;
(4) Make a false statement that a candidate or public official has been indicted or convicted of a theft offense, extortion, or other crime involving financial corruption or moral turpitude;
(5) Make a statement that a candidate has been indicted for any crime or has been the subject of a finding by the Ohio elections commission without disclosing the outcome of any legal proceedings resulting from the indictment or finding;
(6) Make a false statement that a candidate or official has a record of treatment or confinement for mental disorder;
(7) Make a false statement that a candidate or official has been subjected to military discipline for criminal misconduct or dishonorably discharged from the armed services;
(8) Falsely identify the source of a statement, issue statements under the name of another person without authorization, or falsely state the endorsement of or opposition to a candidate by a person or publication;
(9) Make a false statement concerning the voting record of a candidate or public official;
(10) Post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard of whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.

Which, as it happens, leads to several points.  First, there's the lawsuit that worked it's way up to the Supreme Court which in a unanimous opinion. ironically written by Clarence Thomas who doesn't speak at all in oral argument, didn't actually resolve it. 

The Susan B. Anthony List, an anti-abortion "advocacy organization,"** ran ads, and tried to put up a billboard, accusing Steve Driehaus, an Ohio congressman, of voting for taxpayer-funded abortions on the basis of his having voted for Obamacare.  Driehaus denied that he voted for the abortions (though he didn't deny voting for Obamacare) and filed a complaint under 3517.21.  So the list sued and eventually Clarence Thomas explained not that the law was unconstitutional but that the List has a right to continue litigating whether it's unconstitutional.

And that is what led David Schultz, "professor of political science at Hamline University and also a University of Minnesota School of Law professor, where he teaches election law," to write an op-ed in the Plain Dealer asking

Is There a First Amendment Right to Lie in Politics?

His answer is that there isn't - or at least shouldn't be.

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.
. . .
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.It's not that easy, of course.

Which is all well and good except that it's absolute bullshit.  Because, see, even if you could make the law truly narrow - make it a crime intentionally to say something you know to be false in the context of an election and make it so publicly that people are likely to hear it and be persuaded by it - and even if you could somehow make it a law that would pass First Amendment muster or would convince the Court to carve out a new First Amendment exception

• Who's gonna be the judge?  
• Who's gonna decide what's true?  
• Who's gonna determine what you knew?  What you intended?  What's sufficiently public?  
• And who's gonna decide the likelihood of persuasiveness?

Read the comments to Schultz's column.  See the commenters calling each other liars.  Which of them do you trust?  

Oh, make it a non-partisan commission, of course.  Six Democrats and Six Republicans.  Natch.  Of course, there are other parties, other views.  The Ds and Rs might think they're all liars.  But . . . . Newspapers have truth meters.  There are fact checking websites.  They all disagree some of the time.

Is dishonesty a problem in American politics?  You bet.  Is the law the solution?  Absolutely not.  And you know, if the people cared enough, they'd do their own fact checking.

 

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*Except, of course, when it's a good thing or at least OK.

**Thomas calls it a "pro-life advocacy organization," but that's buying into their marketing.  Anti-abortion folks aren't "pro" all life.  While certainly some are also opposed to executions others are not. Some oppose hunting and are vegetarians, others are not.  Few would likely balk at setting out ant traps to keep the bugs out of the flour.

And yes, "pro-choice" is also marketing, referring to a particular choice.  There are lots of other choices those who favor the right to abortion (not-the obligation - "pro-abortion" isn't exactly right, either) don't endorse.  None of that is what this post is about.