Why lying by politicians is generally legal

By Axios | Created at 2024-09-24 14:10:15 | Updated at 2024-09-30 07:26:55 5 days ago

As campaigns try to sway voters before the November election, they'll face few, if any, legal consequences for stretching the truth or telling outright lies, experts tell Axios.

Why it matters: Voters are about to get inundated with political TV ads, mailers and texts, many of them making dubious claims. But a long history of court rulings protects politicians' ability to lie in most cases.

What they're saying: The U.S. Supreme Court has ruled that the First Amendment must protect speech that is false or misleading "to avoid chilling legitimate political discourse," Victor Menaldo, a University of Washington political science professor, tells Axios.

Because political speech is "foundational" under the First Amendment, "lies are not only protected, but even more so for politicians," he writes in an email.

Flashback: Several attempts to legislate against lying by politicians have been struck down by the courts.

In 2012, the U.S. Supreme Court struck down the Stolen Valor Act of 2005, a federal law that criminalized lying about receiving military honors.
The high court ruled that a California water board member couldn't be prosecuted for falsely claiming he had served in the Marines and received the Medal of Honor.
Other courts have struck down efforts to regulate false political speech in Ohio, Minnesota, Washington and Massachusetts.

Zoom in: "The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment," the Washington State Supreme Court wrote in a 2007 ruling.

In that 5-4 decision, the Washington court struck down a 1999 state law that banned false statements in political ads, with the majority calling the law "a censorship scheme."

State of play: The courts have generally argued the antidote to false political statements should be "more speech" or "counterspeech" — essentially, relying on political opponents, the press or voters themselves to identify and call out campaign lies.

"The remedy for speech that is false is speech that is true," U.S. Supreme Court Justice Anthony Kennedy wrote in the plurality opinion in the 2012 stolen valor case.

Between the lines: "We do have laws against defamation, but usually the burden is very, very high when it comes to public figures," Travis Ridout, a political science professor at Washington State University, tells Axios.

To be defamatory against a public figure, a statement must be proven false by clear and convincing evidence and be made with "actual malice" — meaning, with "knowledge that it was false or with reckless disregard" for the truth.
That provides lots of leeway for politicians to make exaggerated or misleading campaign claims, Ridout says.

The bottom line: Voters "should always be skeptical and never take what politicians say at face value," Menaldo writes.