Something Is
Rotten

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CATHERINE J. ROSS
The George Washington University School of Law

IS THERE ANY WAY TO STOP A PRESIDENT WHO LIES constantly about matters large and small, who regularly displays his disconnection from facts or verifiable reality, and whose lies endanger the nation and threaten the very foundations of democracy? This book approaches that question and more by examining how the First Amendment treats deception in public life.

President Donald J. Trump’s mendacity during his term in office and its consequences for the nation highlighted the urgent need to grapple with lies by public officials and in public debate.

But this book is not just about Trump, and it is not just about presidents. As I delve into the First Amendment’s treatment of deception, I will introduce a range of characters from every walk of public life in situations that implicate factual falsehoods and freedom of expression. They include a minor public official masquerading as a Medal of Honor recipient, purveyors of birtherism, and candidates for office who falsely malign their opponents or even usurp the names of famous people. Their stories, and the outcomes of the resulting court cases, reveal the almost insurmountable constitutional and practical hurdles facing efforts to rein in public deception.

The issues raised by Trump’s falsehoods remain salient even after his term has ended. The approximately 80 million voters who chose Joe Biden may have breathed a sigh of relief as their candidate was sworn in, but nearly 74 million others wanted to give Trump a second term. On the eve of Biden’s inauguration over two-thirds of Republicans still clung to Trump’s biggest lie—that Biden’s victory was not legitimate. They either did not perceive that Trump had lied or they did not care.

Social scientists who scrutinized Trump’s “use of fabrications, lies, and bullshit” as a “signature feature of his presidency” underscored that Republican elected officials also appeared not to care. During Trump’s first impeachment trial Republican senators first refused to hear any evidence and then, with one exception, brushed off Congressman Adam Schiff’s solemn plea that “truth matters.” But Schiff was right. Truth does matter.

It is one thing to say, “truth matters,” and quite another to agree about what is true and what is a lie. To begin with, society would need to define what statements are not true in the sense that they are verifiably false and agree about facts (like who won the 2020 election or whether COVID-19 is a “hoax”), and, finally, choose an arbiter of truth to resolve factual disputes.

The very concept of an arbiter of truth raises the specter of George Orwell’s dystopian 1984, as more than one federal judge has observed. A short distance separates a government empowered to determine what is true and what is false from one that—like Oceania in 1984—limits the very subjects and language of discourse until the populace is stripped of the ability to entertain any unorthodox thought. The freedom of speech guaranteed by the First Amendment expressly aims to protect unorthodox thought—unpopular views and the ideas of dissidents, which majorities are prone to label “false.” A serious tension exists between protecting free speech under the First Amendment and combating the spread of falsehoods that can endanger a free society.

 

The Stakes for Democracy

Trump’s presidential lies [about the results of the 2020 election and COVID-19] endangered the United States. Democracies do not long survive without faith in trustworthy elections followed by the peaceful transfer of power that had long been a hallmark of our constitutional system. Trump attacked the legitimacy of elections and refused to acknowledge his loss while blocking preparations to transfer power. He contaminated the leaders of his party, most of whom declined to rebut his falsehoods and, in many cases, promoted them.

The systemic impact was quick and deep. According to political scientists, Trump’s attacks on democratic norms led his followers to “los[e] confidence in elections.” Weeks after the election, a sizable number of Republican voters reported they still expected Trump to be sworn in for a second term—even if some may have been posturing for public consumption.

Many Republican members of Congress played into and helped spread Trump’s delusional falsehoods. They refused to recognize Biden’s victory even after the federal official charged with election security had been fired for asserting that the 2020 election had been the most secure in history, and after Attorney General William Barr had declared that his department had not found any significant evidence of electoral irregularities. In December, when the Washington Post asked the 249 Republicans in Congress, “Who won the election?,” only twenty-seven acknowledged Biden as the president-elect. Nearly 90 percent declined to answer.

Intransigence by Republican members of Congress endured up to and even after the armed insurrection at the Capitol on January 6 threatened their lives. On the evening of January 6, with order restored to the Capitol, 12 percent of all Republican senators and 57 percent of all Republicans in the House of Representatives voted against certifying the results before Vice President Pence declared Biden the winner. Defying logic, the objectors claimed that their end run around normal procedures would restore integrity and faith in democracy.

The disproportionate impact of Trump’s lies was underscored after major social media sites banned him in the wake of the January 6 uprising. The digital analytics firm Zignal Labs reported a 73 percent decline in references to election fraud in the week following the ban. Research supported the view that a handful of accounts—including the president’s—were “superspreaders” of disinformation.

Although many political leaders and pundits from across the political spectrum declared that democracy had prevailed after Biden assumed office, grave concern remains justified. More than a handful of Republican elected officials still refused to acknowledge that Biden won a fair election after he took the oath of office; they were only willing to admit that he “is the president.” Persistent popular belief in unsubstantiated charges about electoral illegitimacy, from assertions of dead people voting, to “fixed” voting machines and more, raises questions about whether and how the United States can return to traditional democratic norms.

Trump mirrored the methods of demagogues the world over. His cornucopia of lies came at such a pace with nearly every news cycle that many people could not fully process or remember them. He embodies the approach widely attributed to Joseph Goebbels, Adolf Hitler’s minister of propaganda: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.”

A would-be strongman does not necessarily have to ensnare a vast majority of people into his fantasy world. It may be enough to divide the population into warring constituencies.

The ominous splintering of the public into epistemic tribes, each contained in a separate information silo, makes it easy for each side to delegitimize its opponents. A fractured, un-curated stream of information, disinformation, and conspiracy theories online and offline exacerbates the dilemma. People who cannot agree about facts are unlikely to agree about what constitutes a lie or about how to respond to mendacity. The United States faces the risk that each group will continue to demonize the other, deepening the fractures that threaten democracy itself.

Lying to the Public

Given the damage that rampant factual falsehoods can cause, one might reasonably ask why we permit them to flourish. As this book will show, the short answer is that the First Amendment poses nearly insuperable obstacles to regulating deception.

If free and fair voting is the heart of our Republic, the free exchange of ideas is its life blood. The founders committed to robust debate because they viewed freedom of thought and expression as essential to liberty. To protect the circulation of even the least popular ideas, the Speech Clause of the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”

“No law,” however, is a bit of an overstatement, even among the most ardent advocates for a robust reading of free speech, among whom I count myself. A number of exceptions exist, some of which reach deception.

A range of statutes and legal traditions prohibits carefully defined false statements without offending the Constitution. The deception subject to regulation falls roughly into two sets. The first includes deception that interferes with the administration of justice or the government’s functions. For example, it is a crime to commit perjury, lie to government officials under certain circumstances even when not under oath, or make false claims about potential terrorist attacks. The second set generally aims at lies that are likely to materially harm others, particularly people with less access to accurate information than is available to the liar. Examples include fraud, false advertising, and misappropriation of trademarks that confuses consumers.

The precise constitutional limits to regulation of falsehoods remain unclear, as the articles of impeachment drafted against President Richard M. Nixon illustrate. When Nixon resigned abruptly in 1974 under the threat of imminent impeachment, the charges against him included “making false or misleading public statements for the purpose of deceiving the people.” Because Nixon resigned, the impeachment proceedings did not go beyond the preliminary stage. From that point until Trump’s second impeachment trial in February 2021, Congress never had another occasion to consider whether a president might have a First Amendment right to lie. Even then, it avoided confronting the issue.

Later in this book I will explore when and why presidential lies, without more, might amount to an impeachable high crime or misdemeanor. (I leave aside for the moment the question of whether impeachment, conviction, and removal from office remain a practical means of constraining a president.) I will argue that despite the nearly insuperable obstacles that the First Amendment generally poses to regulation of falsehood, the Speech Clause itself offers a doctrinal rationale for constraining significant presidential lies. In the last chapter of this book I will propose a novel approach drawn from an obscure corner of First Amendment jurisprudence: the public employee speech doctrine. Under that analysis, I argue, presidents should have less right to lie than the rest of us because all public employees surrender some of their speech rights as a condition of employment and also because the unique amplification of a president’s falsehoods has unparalleled power to harm.

My solution may seem more than a bit quixotic. But it clarifies that the lack of political will presents a more intransigent problem than the First Amendment when it comes to lying presidents.

 

Catherine J. Ross will appear at "The Right to Lie? Presidents, Other Liars, and the First Amendment," April 15, 5:00-6:30 pm.

This is an excerpt from Chapter 1 of Catherine J. Ross's upcoming book, The Right to Lie? Presidents, Other Liars, and The First Amendment.

An excerpt from Prof. Ross's upcoming book.