Freedom of speech and lies

“Are Jews hidden in your attic?” You answer with a lie.

Kant had a categorical take on morality, with lying considered always wrong. John Stuart Mill’s view was consequentialist — lying is wrong only when someone is harmed unjustly. You don’t owe the Nazi officer the truth. But a public official owes citizens the truth.

Does freedom of speech include lying? Republican have been turning freedom of speech into a political bludgeon. The puritanical “woke” left enables this by persecuting the slightest verbal boo-boo, letting the right posture as though they’re defenders of free speech under dire threat.

Recently a Republican congressman said anyone criticizing racist comments violates freedom of speech. And Trump’s defenders in his second impeachment argued that he was merely exercising his free speech rights when he lied about the election being “stolen” and encouraged insurrection.

Our constitution protects free expression more strongly than in any other country. Yet no right is ever so absolute that it overrides all other societal considerations. The Second Amendment doesn’t allow nuclear weapons. And Supreme Court Justice Oliver Wendell Holmes said the First Amendment doesn’t cover falsely yelling “Fire!” in a crowded theater. Yet in 2012 the Court ruled quite differently in U.S. v. Alvarez. Striking down the “Stolen Valor Act,” which criminalized lying about military awards, saying that if Congress could outlaw one sort of statement, it could outlaw any.

A strange anti-Holmesian rationale. Nobody imagines the First Amendment protects lying in all contexts — we punish perjury. Because we consider that inimical to important societal values. Why couldn’t Congress, for similar reasons, punish lies about military medals? 

Such is not what the First Amendment mainly aims to protect. Rather, it’s expressions of opinion, especially political opinion. It’s really about free public debate. And it only bars government restraints. Not public criticism of your racist talk, Congressman. (To the contrary, it’s that criticism that’s protected.)

Inciting violence has always been considered another appropriate exception to free expression rights. Like perjury, another example where those rights bow to valid broader societal concerns. Thus Trump’s pre-January 6 incitements were not protected free speech.

That includes the “stolen election” claim, the biggest and most harmful lie in U.S. history. It’s at the center of a larger phenomenon, the corruption of American civic discourse by severing it from truth and reality. This Republican onslaught undermines the very thing — public debate — the First Amendment aims to protect. Thus their invoking freedom of speech is itself dishonest.

So what is to be done?

One obvious response is to vigorously counter lies. Well, many have been trying. It’s not working. As Mark Twain said, a lie can run around the world while the truth is getting its shoes on. Especially when it seems weak tea as against a lie’s bracing brew. And when the latter is what some people relish swallowing.

In past times, responsible gatekeepers kept the infosphere reality-based. Of course those news media had their own interests — making money — but that actually required maintaining public trust by reporting accurately. It worked pretty well. The public knew to trust the likes of Walter Cronkhite. Debates were about interpretations and consequences of facts, not facts themselves.

Today too many get “informed” by sources having very different incentives, flourishing by catering to discrete niche audiences wanting their opinions and prejudices flattered. The more a factoid does that, the better. Truth being irrelevant.

Twitter and Facebook have justifiably banned Trump. Violating his free speech? No. They are not the government. He can still say what he likes, on his own dime — with no constitutional right to use a platform provided by someone else. Last year, Facebook’s Zuckerberg said his site wouldn’t vet for truthfulness; but it has gotten intense criticism for all the garbage it disseminates. Now Facebook has started blocking anti-vaccine lies and some QAnon lunacy. But purveyors of such bilge just go elsewhere. And as a society we cannot look to private actors like Facebook to solve the bigger problem for us.

So should government step in and outlaw political lying after all? Ohio actually tried, with a law against campaign untruths. That was struck down — it surely did tread the slippery slope the Supreme Court feared in Alvarez. So lies in political advocacy do get some First Amendment protection. And what public officials should be entrusted with deciding truthfulness in political discourse? Laws like that have been introduced by several authoritarian regimes, as handy tools for stomping on pesky critics. Social media sites can block you but not jail you. 

There was actually a time, believe it or not, when being caught in a lie was fatal to a politician’s career. Trump glided through 30,000. This tells us America has changed in a very important way. Political tribalism now pre-empts everything — at least on the right. Among Democrats a major lie would still likely be devastating. But Trump famously said he could shoot someone on Fifth Avenue and lose no votes. Thus a little peccadillo like lying doesn’t matter. Because his voters have other fish to fry. For some evangelicals, it’s the abortion obsession; but for most Trump voters it’s defending their tribal turf of white nationalism. And for them, literally, nothing else matters

Their amoral scorched earth politics jar against the Christianity they also purport to defend in this culture war. But for many, that Christianity is just an identifier, no longer truly a belief system. Such conventional religious belief is crumbling, and to feed their thirst for religious fervor, a lot of people now instead look to politics. It’s mirrored too in the left’s sanctimonious intolerance. When politics takes the place of religion, no wonder resolving issues through compromise becomes impossible.

6 Responses to “Freedom of speech and lies”

  1. Don Bronkema Says:

    Well said [tho Graf-3, Line-2 needs syntax-rejigger]…en passant, we’ll take sanctimony if it blocks gulag. Drive on: the stars await!

  2. Mark V Says:

    It’s refreshing to see these current confusions addressed by someone with a strong legal background. Likewise, freedom of religion could not extend to cannibalism.

  3. Don Bronkema Says:

    Homophagy has always been, & should remain, a matter of taste.

  4. Colin B Says:

    Lies by politicians were not started by Trump, although he did take it to extremes. The end (we hope!) of a very long slippery slope.
    The Jews in the attic example is a 20th c version of the hidden spies in the Bible. Given that, arguably, we take our morals based on the Bible, then the examples of lying given there always are committed to saving life.

  5. Don Bronkema Says:

    Colin: A moment’s reflection should persuade that a tribal history [Scripture] is bound to be partisan, thus can’t be a dyspositive cicerone to conscience, let alone conduct. Instead, rely upon the behavior if primates, demonstrably co-operative per Darwin & successors. Of course, colleague Doudna’s CRISPR will, in time, upgineer left-frontal-lobe insight & ethics–vital for confined societies [e.g., Colonia Martialis, voyages ad galaxis etc]. Downside: as Libet & Koch showed, mind & volition are 20 khz sweeper-wave phantoma. Worse: the Kosmos is endogenous, thus w/o origin in space or time. In what sense is it real if not observed? We nonagenarians recommend the surcease of Messor Gravis.

  6. Don Bronkema Says:

    1959 lunambulo: cute!

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