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Free Speech or Legalized Libel?

April 27, 2014

With the Supreme Court’s decision in the Citizens United case and the more recent McCutcheon decision, campaign finance regulation has, for the most part, been blown to smithereens. Not only are corporations people, but money is speech. To regulate either in the course of political campaigns is a direct violation of the First Amendment to the Constitution of the United States of America, so help me, God. If that’s not bad enough, now the Supreme Court is preparing to render a decision, in the case of SBA List v. Dreihaus, which may actually lead to the establishment of outright political lies as protected speech as well.

Politics in this country weren’t screwed up enough before. Now we need to deal with seemingly endless amounts of money being spent by anyone (often anonymously, thanks to the wonder of unregulated dark money) to their heart’s content on advertising aimed at getting us to vote for a particular candidate or issue. We needn’t concern ourselves with the veracity of any claims made in these ads, we only are to judge for ourselves based on the sound bites presented.

The mainstream mass media ( to include cable news) cannot be counted on to provide us with adequate fact-checking of claims put forth in these political ads. They are salivating at the prospective rewards they may reap for providing venues for the dissemination of this “free speech” (which is certainly not provided free of charge). Usually, the source of funding is cryptic at best within each commercial. Some nebulous name of a committee or organization is often given, but that usually tells us next to nothing about the funding source or its overall agenda. None of this matters to the corporate media heads, content with achieving a profit at the end of the campaign season.

When I go to the polls here, I find myself looking at a slate of candidates about whom I have varying degrees of information regarding their political party affiliation and political goals. Most campaigning here for local offices is done in the form of lawn signs with the name of the person and the position for which they are running. That’s it. No policy positions. No personal information or experience that would lead one to make an informed choice. Heck, usually the party affiliation is even totally absent. This is true for most judge positions, as well as county officials, City Council members, school board, etc. Only the mayor’s office gets a little more press. State legislators, statewide officeholders and Congressional candidates get most of the airtime, since they are able to raise and spend the money for mass media more easily. These have mostly become popularity, name recognition contests. We can’t even place a face with most of the names.

Name recognition is the name of the game. Door-to-door campaigning seems to have become a thing of the past. In 15 years living here, I can honestly say my doorbell has only rung once for a visit from some campaign volunteers to discuss a candidate and seek support – that was in 2012 for President Obama. The rest of campaigning that reaches the vast majority of voters consists of radio and television ads, with perhaps a few weakly publicized public appearances and debates broadcast on stations and at times when few end up viewing them – except for the Presidential debates, of course.

The quality of information broadcast in TV and radio commercials on behalf of political candidates is often matched only by the disinformation disseminated by the politicians in policy debates once they are elected. How these people can say some of the stuff they say in these commercials and stump speeches with a straight face amazes me. How are voters expected to make informed decisions on who to elect as persons most likely to meet their needs when they are bombarded over the airways with conflicting, often misleading or downright fabricated information pro and con every candidate and most issues being voted upon? If we can’t trust a candidate or group to be forthright and honest in how they portray themselves and their positions on the important issues that shape our everyday lives, how can we trust them to do the right thing once they hold office?

In a court of law or Congressional hearing, people are asked to take an oath swearing that they will tell the truth, the whole truth and nothing but the truth. Shouldn’t that be the default without having someone have to recite it? Or are we to assume that if they don’t so swear, they are free to lie with impunity and just make stuff up as they go along? The best we seem to ever get out of politicians in their ads is a brief statement by the candidate that they approve of the message. That doesn’t tell me the message is factual. People (especially, it seems, politicians) approve of many things that will advance their interests, whether they are morally defensible or factually true. Not fact checking these ads and holding people responsible for accuracy in advance of airing them is journalistic malpractice on the part of the media – the moral equivalent of running a story on page one with a banner headline, finding out it is totally wrong, and then printing a retraction in fine print on page 46 the next day.

Just as bankers or any other private citizen can be prosecuted for perpetrating fraud on the public, so should political campaigns, candidates and special interest groups which resort to spending huge sums of money to inundate the public with fabricated lies just to get their preferred candidate elected. Saying oops and setting the record straight after the damage has been done and a person is elected who does not represent what the voters truly wanted or needed in a leader won’t cut it in a free and open society.  Pretending that we have a democracy while allowing money to rule the airwaves and decide way too many election outcomes rather than the merits of the contestants and true informed consent of the public is the height of hypocrisy and shows our electoral process to be as flawed as those of many of our adversaries in other nations.

Freedom of speech must have its limits, as does any other freedom given us in the Constitution. Money must not be allowed to further contaminate a political process which has become corrupted in recent years by a Supreme Court that serves the moneyed interest in our society ahead of the Constitution which they have sworn to uphold and the rest of us who fall under its purview. Allowing the political process to become even further corrupted by allowing unfettered dissemination of lies in the interest of “Free Speech” only serves to widen the gulf between our system and a fair electoral system.  What began with Citizens United and continued with McCutcheon must not be allowed to snowball any further by sanctioning political lies as free speech protected by the First Amendment.

We all deserve an equal voice at the ballot box, and correct information on the issues and candidates. Legalizing slander and libel in the name of freedom of political expression is a step beyond the sophistry involved in bestowing personal rights on corporations and justifying allocating the expression of political opinion by force of wealth alone. It makes formulating a sound and rational decision on who to select to represent us in our legislatures and Congress, as well as who will lead us as governors and President much more difficult than it should be. We need to trust our government and our leaders to be honest and truthful with us. We have long mocked dictators and authoritarian regimes for their outrageous false propaganda machines, Nurturing an even worse one within our own borders should not be among our goals in either the near or distant future.

Suggested Further Readings:

SCOTUS To Hear Case About Political Ads Spouting Lies

Obama’s First-Amendment Defense of Political Liars

Money-As-Speech, Speech-As-Lies, Truth-As-Victim

Supreme Court Calls Lying by Politicians an Expression of Their Religion

Six Studies That Show Everything Republicans Say About the Economy is Wrong

Argument preview: Attack ads and the First Amendment


From → Uncategorized

  1. Our situation is bad and getting worse. All we can do is keep fighting and hope for the best.


  2. Citizen’s United is/was a disaster. Don’t know how they will come down on latest case but do not support any kind of “regulation” or law that says you cannot spin or outright lie in your ads. Who is to decide what is true or not? Not surely, the courts. That’s up to voters and supporters of causes and candidates to get the truth out. Lies and fraudulent statements usually show themselves and with the internet – as long as we have reasonable access – getting the truth out is not the problem is used to be. TV and phone chain lies can be overcome through the normal process – I hope. You may turn out to be right and I wrong. Hope that is not the case.


  3. I believe that Florida’s “false light” decision greatly affected news reporting, leading editors to abuse three words … in good faith.

    Publication of statements made by public servants that were knowingly false seemed to go off the charts afterwards.


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