Skip to main content

Should it be legal for politicians to lie?

By Ilya Shapiro
April 28, 2014 -- Updated 1756 GMT (0156 HKT)
<strong>Richard Nixon</strong>, who resigned as president after the Watergate scandal, famously said during a 1973 press conference: "In all of my years in public life, I have never obstructed justice. ... People have got to know whether or not their president is a crook. <a href='http://www.youtube.com/watch?v=sh163n1lJ4M' target='_blank'>Well, I'm not a crook</a>." Richard Nixon, who resigned as president after the Watergate scandal, famously said during a 1973 press conference: "In all of my years in public life, I have never obstructed justice. ... People have got to know whether or not their president is a crook. Well, I'm not a crook."
HIDE CAPTION
Richard Nixon: 'I'm not a crook'
Bill Clinton: 'I did not have sexual relations ... '
John Edwards: 'The story is false'
Anthony Weiner: 'I had no idea what happened ... '
Eric Massa: 'It is not true. Period'
Rod Blagojevich: 'I have done nothing wrong'
William Jefferson: 'The $90,000 was the FBI's money'
Edwin Edwards: 'I did not do anything wrong ... '
Kwame Kilpatrick: 'Hell yeah! ... I want some more'
<<
<
1
2
3
4
5
6
7
8
9
>
>>
STORY HIGHLIGHTS
  • Ilya Shapiro says that political speech should not be regulated by states
  • The U.S. Supreme Court will rule on an Ohio case that outlaws political lies
  • Shapiro: Idea that a censor would vet speeches, ads against Truth-o-meter is a joke
  • Ohio's ban of lies and damn lies, he argues, is inconsistent with the First Amendment

Editor's note: Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. He filed a brief supporting the plaintiffs in Susan B. Anthony List v. Driehaus, currently before the U.S. Supreme Court. You can follow him on Twitter @ishapiro. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Imagine that a state creates a "ministry of truth" whose job it is to referee elections to make sure that candidates and activists didn't insinuate, exaggerate or otherwise spin their messaging. Any political speech the truth-o-crats determined to be insufficiently candid would carry criminal penalties.

Sounds like a parable about the dangers of taking "clean elections" too far, right? Or a short story by George Orwell or Kurt Vonnegut?

In the American tradition of political free-for-all, the idea that an omnipotent censor would vet stump speeches and ads against some government-designed Truth-o-meter is a joke.

Unfortunately, this is no dystopia. By one count, about 20 states outlaw campaign distortions. Most notoriously, Ohio has a statute that prohibits making "false statements" about a candidate or ballot initiative.

Ilya Shapiro
Ilya Shapiro

In one instance, former Rep. Steven Driehaus, D-Ohio, used it against an anti-abortion group that had attacked him in the 2010 election. That's the basis of a case now in front of the U.S. Supreme Court.

A hearing last week in the case began with the claim that "Driehaus voted for taxpayer-funded abortion." That's good fodder for dinner-party conversation or TV talking heads, but it was surreal in that it ended up before the highest court in the land.

There's no question that Driehaus voted for the bill at issue -- the Affordable Care Act -- so the only dispute is whether statutory text actually provides federal funding for abortions (a question of legal, economic and even theological interpretation).

Alas, the Ohio law extends even past matters of interpretation. Its broad language also criminalizes rhetorical hyperbole. Legally speaking, Ohio's ban of lies and damn lies is inconsistent with the First Amendment.

Michigan affirmative action ban upheld
Aereo case at the Supreme Court
High court rules on money in campaigns

Indeed, disparaging political statements -- whether true, mostly true, mostly untrue or wholly fantastic -- are cornerstones of American democracy. Mocking and satire are as old as the republic.

Just ask Thomas Jefferson, "the son of a half-breed squaw, sired by a Virginia mulatto father." Jefferson's 1800 campaign against John Adams would make a modern spin doctor blush -- and that's before James Callender, noted pamphleteer and "scandalmonger," alleged that Jefferson had fathered children with his slave Sally Hemings (a charge largely confirmed nearly 200 years later).

In the fierce election of 1828, supporters of John Quincy Adams called Andrew Jackson a "slave-trading, gambling, brawling murderer." Jacksonian partisans responded by accusing Adams of securing a prostitute for Czar Alexander I.

Later that century, Grover Cleveland was asked at every campaign stop, "Ma, ma, where's my pa?" (Answer: Gone to the White House, ha ha ha!)

More recently, we've debated draft dodging, Swift Boats and birth certificates, not to mention the assorted infidelities that are a political staple. Any of these allegations could generate a complaint to the Ohio Elections Commission and thus turn commonplace jibber-jabber into a protracted legal dispute.

Yet "truthiness" -- a "truth" asserted "from the gut" or because it "feels right" -- is a key part of political discourse.

After all, where would we be without the knowledge that Democrats are pinko-communist flag burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the United Nations to take over America?

Would we be better off electing Republicans, those assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg re-enactment and that the only thing wrong with the death penalty is that it isn't administered quickly enough to secular-humanist professors of Chicano studies?

Laws that criminalize "false" speech don't replace smears and snark with "just the facts." Instead, they chill speech such that spin becomes silence.

Supporters of Ohio's law believe that it somehow stops lies and insults, raising the level of discourse to that of an Oxford Union debate (which itself isn't that high, but that's another story). Not only does this hope stand in the face of political history, it disregards the fact that, in politics, truths are felt as much as they're known.

When a red-meat Republican hears "Obama is a socialist," or a bleeding-heart Democrat hears, "Romney wants to throw granny off a cliff," he feels a truth more than thinking one. No state agency can change this fact, and any attempt to do so stifles vital political speech.

Laws such as Ohio's are so absurd as to be laughable -- except that criminalizing political speech isn't funny. The Supreme Court should close the truth ministries once and for all.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
July 29, 2014 -- Updated 1417 GMT (2217 HKT)
LZ Granderson says the cyber-standing ovation given to Robyn Lawley, an Australian plus-size model who posted unretouched photos, shows how crazy Americans' notions of beauty have become
July 28, 2014 -- Updated 1156 GMT (1956 HKT)
A crisis like the Gaza conflict or the surge of immigrants can be an opportunity for a lame duck president, writes Julian Zelizer
July 26, 2014 -- Updated 1822 GMT (0222 HKT)
Carol Costello says the league's light punishment sent the message that it didn't consider domestic violence a serious offense
July 28, 2014 -- Updated 1251 GMT (2051 HKT)
Danny Cevallos says saggy pants aren't the kind of fashion statement protected by the First Amendment.
July 28, 2014 -- Updated 1852 GMT (0252 HKT)
Margaret Hoover says some GOP legislators support a state's right to allow same-sex marriage and the right of churches, synagogues and mosques not to perform the sacrament
July 28, 2014 -- Updated 1831 GMT (0231 HKT)
Megan McCracken and Jennifer Moreno say it's unacceptable for states to experiment with new execution procedures without full disclosure
July 28, 2014 -- Updated 1850 GMT (0250 HKT)
Priya Satia says today's drones for bombardment and surveillance have their roots in the deadly history of Western aerial control of the Middle East that began in World War One
July 28, 2014 -- Updated 1635 GMT (0035 HKT)
Jeff Yang says it's great to see the comics make an effort at diversifying the halls of justice
July 26, 2014 -- Updated 1555 GMT (2355 HKT)
Rick Francona says the reported artillery firing from Russian territory is a sign Vladimir Putin has escalated the Ukraine battle
July 27, 2014 -- Updated 1822 GMT (0222 HKT)
Paul Callan says the fact that appeals delay the death penalty doesn't make it an unconstitutional punishment, as one judge ruled
July 24, 2014 -- Updated 2225 GMT (0625 HKT)
Pilot Robert Mark says it's been tough for the airline industry after the plane crashes in Ukraine and Taiwan.
July 25, 2014 -- Updated 1510 GMT (2310 HKT)
Jennifer DeVoe laments efforts to end subsidies that allow working Americans to finally afford health insurance.
July 26, 2014 -- Updated 1533 GMT (2333 HKT)
Ruti Teitel says assigning a costly and humiliating "collective guilt" to Germany after WWI would end up teaching the global community hard lessons about who to blame for war crimes
July 25, 2014 -- Updated 1245 GMT (2045 HKT)
John Sutter responds to criticism of his column on the ethics of eating dog.
July 25, 2014 -- Updated 1302 GMT (2102 HKT)
Frida Ghitis says it's tempting to ignore North Korea's antics as bluster but the cruel regime is dangerous.
July 25, 2014 -- Updated 1850 GMT (0250 HKT)
To the question "Is Putin evil?" Alexander Motyl says he is evil enough for condemnation by people of good will.
July 24, 2014 -- Updated 1803 GMT (0203 HKT)
Laurie Garrett: Poor governance, ignorance, hysteria worsen the Ebola epidemic in Sierra Leone, Guinea, Liberia.
July 24, 2014 -- Updated 1349 GMT (2149 HKT)
Patrick Cronin and Kelley Sayler say the world is seeing nonstate groups such as Ukraine's rebels wielding more power to do harm than ever before
July 23, 2014 -- Updated 2205 GMT (0605 HKT)
Ukraine ambassador Olexander Motsyk places blame for the MH17 tragedy squarely at the door of Russia
July 24, 2014 -- Updated 1142 GMT (1942 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1853 GMT (0253 HKT)
Les Abend says, with rockets flying over Tel Aviv and missiles shooting down MH17 over Ukraine, a commercial pilot's pre-flight checklist just got much more complicated
July 24, 2014 -- Updated 1317 GMT (2117 HKT)
Mark Kramer says Russia and its proxies have a history of shooting down civilian aircraft, often with few repercussions
July 24, 2014 -- Updated 1637 GMT (0037 HKT)
Gerard Jacobs says grieving families and nations need the comfort of traditional rituals to honor the remains of loved ones, particularly in a mass disaster
July 24, 2014 -- Updated 1413 GMT (2213 HKT)
The idea is difficult to stomach, but John Sutter writes that eating dog is morally equivalent to eating pig, another intelligent animal. If Americans oppose it, they should question their own eating habits as well.
July 23, 2014 -- Updated 1630 GMT (0030 HKT)
Bill van Esveld says under the laws of war, civilians who do not join in the fight are always to be protected. An International Criminal Court could rule on whether Israeli airstrikes and Hamas rocketing are war crimes.
July 23, 2014 -- Updated 1408 GMT (2208 HKT)
Gordon Brown says the kidnapped Nigerian girls have been in captivity for 100 days, but the world has not forgotten them.
ADVERTISEMENT