Fraud upon the electorate


Is there a First Amendment right to lie in politics?  

Lying is wrong because if such a practice were universalized – if we lived in a world where we did not expect truth telling – it would be nearly impossible for most social interaction to occur. So much of what makes commerce, business and most human interaction possible is trust; it is the idea that we can expect people to keep their word or that they will follow up on their promises that keeps the world in check. 

Yes, there are some exceptions to truth-telling in our private lives. Lying to save a life is acceptable. One might also assert that lies to encourage people (telling children they did a good job when they did not as a way to motivate them to work hard) might also be acceptable; however, they are still considered lies, but are permitted exceptions. Here truth-telling must be balanced against other competing objectives, and in some cases the latter weigh more heavily. But in general, lying is wrong in our private lives and such a prohibition is often enforced. Perjury is wrong and punishable by law. False advertising is regulated as deceptive. In both cases, the justification is that the 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 and that lawyers should facilitate that. Instead, the adversarial system relies on all parties playing fairly and not lying. Clear lies make it difficult for juries to do their job in sorting out the facts to determine the truth. Similarly, false advertising corrupts the marketplace of ideas, making it difficult for consumers to make reasonable judgements when making purchasing decisions.

Now the problem is how to apply the prohibition against lying to politics. Richard Nixon justified deception to promote national security, prevent hysteria, or to protect people. But as some have  asserted, such a utilitarian justification for lying is often self-serving, paternalistic, and, more important, undermines democracy in the sense that it prevents the people themselves from being able to make informed choices. Telling the truth promotes democracy; lying hinders it.

Personal integrity is not always enough

If government officials should not lie, what about individuals, candidates and groups involved in campaigns and elections? Should they be allowed to lie about the record of others, to distort the facts on ballot propositions, or simply to lie in the context of political debate? Ethically there should be no debate, and 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 personal lies and deceptions.

The Supreme Court has already ruled that deception lies outside of First Amendment protection. In McIntyre v. Ohio Elections Commission (1995), it ruled that the government 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, as noted above, one cannot always rely upon personal integrity to guarantee political participants will tell the truth. 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. 

Third, 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.

Who should decide what is true?

Finally, there are two remaining arguments used to argue that political lies should be protected by the First Amendment. One is the claim that the people should decide what is truth and that the government should not be making decisions about political orthodoxy or veracity. Determining whether someone has lied politically can also be judged by the people through the courts. The other claim is that there is no standard determining when someone has lied. In N.Y. Times Co. v. Sullivan, 376 U.S. 254, (1964) the court articulated the actual malice standard in the political defamation context, defining the boundary between what is and is not protected by the First Amendment.

So are the lies of politicians or candidates protected under the First Amendment? For now in most cases yes, but does it make it right? No. 

How do we as the voters deal with “Fraud apon the electorate”? When a candidate or candidates say that they will provide Tax Relief when it is not in their ability to do so what can the voting community do. How do we as voters know that what a candidate says is not posible if we do not know how the system works. Most would agree that the opposing party needs to walk the streets, and inform their neighbors. But if there already exists a distrust in the political process there is a good chance our neighbors will not believe what is said anyway.

One of the biggest obsticals to the return of trust to our political process is that political lieing works. It often scares voters into making bad choices that get the wrong people into office. Lying simply works, and is very hard to fight. The comment about tax relief is used because it works, sure it’s a lie but how many people realize it’s something that the particular party cannot do. 

One way we can find some comfort in these turbulent political waters is to look at each candidate ourselves, and not take what we see or read for face value. Look for already established patterns of honestly in our candidates, and likewise already established patterns of dishonesty. Have the candidates been truthful or dishonest in the past? Have the candidates kept their previous promises? Do they stand behind their word? 

How ever you vote on April 7th I only ask that you do so after having looked at each candidate with your own eyes. Examine what they have done, and what they say they will do. What have they said in the past and did they actually do it. Do they seem like people that will help build a team or have they been hurting that teams chances for success? Look at the details with facts that back them up, not the empty promises. 

Make your voice heard on April 7th, don’t listen to the lies of others. Don’t listen to false claims, and political promises that can never been realized. 


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