Free Speech for Political Campaign Lies?

On Tuesday, November 5, citizens of the United States will vote for who they want to serve as their President for the next four years. They will also vote for federal congressional representatives as well as a host of other state and local government officials.

U.S. political campaigns—especially presidential campaigns—are exhausting. This is in part because they are much longer and more expensive than the political campaigns in many other nations.

Another reason why many have found the last three presidential campaigns exhausting is the sheer volume and brazenness of the lies told by Donald Trump and many other Republicans who have come to mimic his campaign style. Trump’s lies have reinforced partisan epistemology while simultaneously creating epistemic chaos that he seeks to use to his advantage.

He has successfully used lies to undermine public trust in U.S. elections. This is starkly exhibited by the fact that nearly 30% of Americans—including roughly two thirds of Republicans—say they believe that the 2020 U.S. Presidential election was stolen.

The reason that so many Americans believe this patent falsehood is because Trump and his allies have repeatedly told this lie. However, it seems that Trump and his allies don’t really believe it, given that they have been unwilling to make these same claims in court or in other contexts in which they could face legal sanctions for lying.

This is an example of the truth-revealing power of courts. The best explanation for why Trump and his co-conspirators refuse to make these false claims about the 2020 election in contexts where they realize that lying comes with significant legal consequences is that they know they are lying.

If significant legal consequences for lying are enough to stop Trump and his co-conspirators from lying in court, one might naturally conclude that the best course of action might be to create similarly significant legal consequences for lying as part of political campaigning. This is a reasonable thought, but it’s not that simple—at least not in the United States. This is because such a course of action conflicts with contemporary social and legal understandings of the First Amendment of the U.S. Constitution’s protection of free speech.

For many, protection of political speech is at “the core” of the First Amendment. This means that many consider political speech to be the type of speech that it is most important to avoid regulating as part of freedom of speech. The current dominant understanding is that this includes barring regulations of political speech based on whether the speech is true or false. It also includes barring regulations of political speech based on whether the speech is honest or dishonest.

Given the harm caused by political campaign lies, I think it’s worth interrogating such assumptions. What reasons, if any, do we have to provide legal protection for lies told by those campaigning for political office? And are those reasons good enough to justify retaining current U.S. free speech law’s protection of political lies?

There are lots of different theories of why free speech is valuable, but many of the most influential theories tend to fall into one of three categories: (1) arguments that freedom of speech helps us discover truth, (2) arguments that freedom of speech is necessary for democratic self-governance, and (3) arguments that freedom of speech promote human autonomy.

These theories actually help explain why certain kinds of lies and falsehoods are not protected by free speech laws such as the First Amendment. Common examples of such legally unprotected lies and falsehoods include perjury (lying under oath), defamation (saying something false that harms someone’s reputation when you should have known the statement was false), and false advertising (making misleading claims about goods or services for sale in advertisements).

Notice how providing free speech protection for such false statements doesn’t further any of the major goals theorists have identified for why speech should receive special legal protection. Take perjury, for example. Allowing someone to lie under oath certainly doesn’t help judges and juries figure out the truth in legal disputes. In fact, protecting such lies would greatly undermine judicial searches for truth.
Similarly, protecting perjury as free speech would not do anything to help us achieve democratic self-governance. If anything, it would undermine that goal by leading to a legal system in which court outcomes were less likely to be accurate and fair.

It might be argued that protecting perjury promotes the autonomy of the perjurer. Perhaps it does in some relatively trivial sense. However, any gains in the autonomy for the perjurer are offset by the loss in autonomy that perjury causes to third parties. For example, if you’re on trial for a serious crime, your autonomy is undermined if the witnesses can tell lies about you in an attempt to get a jury to convict you of a crime you didn’t commit.

Arguably, in such circumstances the jurors’ autonomy is undermined too. Their goal of trying to reach a fair legal outcome might be thwarted if they are being lied to by the witnesses. Such lies corrupt the information on which they must base their decisions.

It seems to me that the same logic applies to political campaign lies. Such lies often make it harder to figure out the truth, not easier. Political campaign lies also undermine our ability to govern ourselves democratically, because voters are more likely to cast votes based on inaccurate information that don’t meet their political goals as a result. Political campaign lies also undermine voter autonomy. If I seek to exercise my autonomy through making sound political decisions, my ability to do so is undermined if liars cause me to be misinformed about the relevant facts.

This has led some theorists, such as philosopher and legal scholar Seana Shiffrin, to argue that there isn’t a good theoretical reason to protect many lies and other forms of deception under the First Amendment. However, as Shiffrin points out, there may still be good practical reasons to protect certain kinds of lies.

I think Shiffrin is right about this. There is no sound theoretical reason for providing free speech protection to political lies. That said, in a society like the United States that currently has a high degree of affective polarization, media echo chambers, and a glut of misinformation, there are significant practical challenges to trying to regulate political lies.

This is because allowing the government to punish political lies requires that the government be able to determine what counts as a political lie. And there are good reasons to think that members of government might lack the objectivity to do this well in polarized environments full of misinformation.

In addition, even if the government were able to do this well, many citizens might perceive the government as doing this poorly. This could create greater distrust or animosity toward government.

This puts good faith actors in the U.S. in a political dilemma. The costs of regulating political lies could be very high. But the cost of permitting serial political liars like Donald Trump to continue to tell brazen and damaging lies is also very high. I don’t know of a good way out of this dilemma.

Practically speaking, perhaps the best way to do this is for voters to send a clear message that they don’t want a liar like Trump back in the White House. This is the option I hope that the voters take on November 5.

Image Credit to SHVETS Production