Could Lies in Election Campaigns Generally Be Punished?
[I’m working on a draft article called When Are Lies Constitutionally Protected?, and I thought I’d serialize it here, since I still have plenty of time to improve it; I’d love to hear your thoughts on it! (You can also read the whole article here; all the posts about it will go into this thread.)]
If I’m right that the question here is one of comparative effectiveness of different truth-finding institutions, then this might bear on how any particular kind of false statement should be classified. Here, let’s consider (though just briefly) lies in election campaigns; whole articles, of course, can and have been written in much more detail about this question.
Lies in election campaigns are in some respects especially dangerous, because they often happen shortly before the election, when there is little time to respond.[1] At the same time,
In a political campaign, a candidate’s factual blunder is unlikely to escape the notice of, and correction by, the erring candidate’s political opponent. The preferred First Amendment remedy of “more speech, not enforced silence,” thus has special force.[2]
And what is true of factual blunders is likely true of deliberate falsehoods as well.[3]
The cases on the subject are split, but I’m tentatively inclined to agree with the recent state supreme court and federal appellate decisions that conclude that, on balance, allowing prosecutions for such lies is too dangerous. The Massachusetts Supreme Judicial Court’s 2015 decision in Commonwealth v. Lucas is the most recent articulation of the argument:
- The proper institution for dealing with such lies, for all its flaws, is the prospect of “counterspeech” by the opponent.[4]
- Such a statute “may be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech,”[5] through tricks such as “well-publicized, yet bogus, complaint[s] to the [governmental enforcement body] on election eve.”[6] “[B]y the time of the probable cause hearing the election may well be over and the damage will be done.”[7]
- This is especially so because “the distinction between fact and opinion is not always obvious,” especially in rushed decisions about whether to issue a criminal complaint. [8]
- “[E]ven in cases involving seemingly obvious statements of political fact, distinguishing between truth and falsity may prove exceedingly difficult. Assertions regarding a candidate’s voting record on a particular issue may very well require an in-depth analysis of legislative history that will often be ill-suited to
Article from Reason.com
