Skip to main content

Should it be legal for politicians to lie?

By Ilya Shapiro
updated 1:56 PM EDT, Mon April 28, 2014
<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
updated 8:27 PM EST, Fri December 26, 2014
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
updated 11:17 AM EST, Fri December 26, 2014
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
updated 8:19 AM EST, Fri December 26, 2014
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
updated 10:05 AM EST, Fri December 26, 2014
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
updated 8:03 AM EST, Fri December 26, 2014
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
updated 6:27 PM EST, Sat December 27, 2014
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
updated 1:33 AM EST, Thu December 25, 2014
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
updated 6:12 PM EST, Tue December 23, 2014
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
updated 8:36 AM EST, Wed December 24, 2014
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
updated 2:14 PM EST, Wed December 24, 2014
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
updated 3:27 PM EST, Tue December 23, 2014
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
updated 10:35 PM EST, Tue December 23, 2014
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
updated 7:57 AM EST, Tue December 23, 2014
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
updated 11:29 PM EST, Mon December 22, 2014
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
updated 4:15 PM EST, Tue December 23, 2014
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
updated 1:11 PM EST, Tue December 23, 2014
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
updated 1:08 PM EST, Mon December 22, 2014
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
updated 1:53 PM EST, Sat December 20, 2014
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
updated 3:19 PM EST, Sat December 20, 2014
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
updated 5:39 PM EST, Mon December 22, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT