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Should the First Amendment protect lying?

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I do not know anyone whose parents or church taught them that lying is permissible and bears no taint of sin: Thou shall not bear false witness is ingrained from childhood in everyone I know. Do not ever lie, we are taught.

So why, then, is an anti-abortion advocacy group asking the highest court in the land to allow it to lie with impunity? At stake in the case is whether the federal government has the legal right to police political advertising for lies. The case involves claims by the anti-abortion group, Susan B. Anthony List, against then-Rep. Steven Driehaus (D-Ohio). From Politico’s Bryon Tau:

During the 2010 election cycle, Susan B. Anthony List accused Driehaus of voting in favor of taxpayer-funded abortions by supporting President Barack Obama’s Affordable Care Act.

Driehaus then complained to the Ohio state election commission, alleging that the proposed billboard campaign ad was false and violated the state law. The Affordable Care Act requires abortion to be paid for through non-ACA accounts and federal law bars taxpayer money from funding abortions.

The proposed billboard would have read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”

Susan B. Anthony List denies that the ads were false — but is challenging the overall constitutionality of the restrictions on false political speech. The group also successfully beat back defamation lawsuit filed by Driehaus in 2013. …

The Driehaus campaign argued that the SBA ad ran afoul of the Ohio False Statement Law that makes it illegal to “post, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.”

The anti-abortion group and another ally filed a federal lawsuit, arguing that the Ohio law is unconstitutional, on First Amendment grounds. Really? Running to SCOTUS to protect free speech on the basis of a lie? [Here’s the case file from SCOTUSblog.]

Well, plenty of legal scholars and others have weighed in on that question: Does the First Amendment protect the right to lie? See here, here, and here.

Recall United States v. Alvarez. Xavier Alvarez falsely claimed he had been awarded the Medal of Honor. The government prosecuted him under the Stolen Valor Act, which criminalizes false claims to having received military honors or decorations. The Supreme Court struck down the act.

In the plurality opinion, Justice Anthony Kennedy wrote:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.

The government had claimed “that false speech adds little of value to society and thus is generally without First Amendment protection. In its brief, the government argued that false statements ‘have no First Amendment value in themselves,’ and thus ‘are protected only to the extent needed to avoid chilling fully protected speech.'”

Ah, that wonderful phrase: “chilling fully protected speech.” Does a lie broadcast in some means by an anti-abortion group (or a pro-life group) constitute fully protected speech? I don’t know.

I like the definition of free speech by my favorite fictional president, Andrew Shepherd, from my favorite bad movie, The American President:

America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”

We should cherish, or at least listen to, someone whose words make our blood boil because good public policy often emerges from the clash of ideas and points of views. But if the guy doing the shouting, and making my blood boil, is spewing provable lies, of what socially or politically redeeming value are those words? To me, political lies are intolerable.

Sadly, such lies abound. If you have an active mind and have been paying attention, you know the following:

Governments lie.

Government officials, whether elected or appointed, lie.

People wanting to be government officials, either elected or appointed, lie.

Groups of people, be they liberal or conservative, wealthy or not, bright or merely dumb, wanting to influence public policy, lie.

Lies have driven the politics we have today. Why do we, the electorate, put up with the social, moral, and economic consequences of so many lies by so many political agents who claim to be acting “in the best interests of the American people”?

Far too many people engaged in politics, either as public servants or advocates for particular policy outcomes, have long forgotten the message of Proverbs 6:16–19:

There are six things that the Lord strongly dislikes, seven that are an abomination to him: haughty eyes, a lying tongue, and hands that shed innocent blood, a heart that devises wicked plans, feet that make haste to run to evil, a false witness who breathes out lies, and one who sows discord among brothers.

Let’s hope the Supreme Court reminds its supplicants that a lying tongue serves no one well. But is that likely? Hardly. Not with this Supreme Court, and probably not with any Supreme Court.

Tolerating lies, the Court will likely rule, is a cost of free speech. But political mendacity has social and economic consequences we should fully recognize. We should demand truth from those govern us, and those wish to. Remind them of what they were taught as children: Tell the truth.

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Written by Dr. Denny Wilkins

January 24, 2014 at 8:40 pm

Posted in Uncategorized

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