Is It Okay to Lie in Political Ads?

There’s a really interesting case going on in Massachusetts involving a statute that makes it illegal to lie in a political ad. The group was criminally charged under an old law and they are challenging the constitutionality of that law under the First Amendment.

In the first test of its constitutionality, a state law that makes it illegal to lie in campaign ads is being challenged by a Republican political action committee whose treasurer is facing criminal charges over a negative mailing in the last election cycle.

The Jobs First Independent Expenditure Political Action Committee aims to strike down a 1946 state statute that bars anyone from knowingly making false statements about a candidate.

Jobs First argues the state law is unconstitutional, providing a “chilling effect” on free speech by protecting elected officials from criticism.

But a state legislator says he was defamed by the PAC’s campaign fliers.

“They’re arguing for the right to lie. I’m arguing that the First Amendment does not provide them with that right,” said Representative Brian Mannal, a Barnstable Democrat…

Jobs First circulated a mailer that accused Mannal of trying to capitalize on his own legislation, “putting criminals and his own interest above our families,” and “helping himself,” since he had also done work as a public defender.

“Lawyer Brian Mannal has earned nearly $140,000 of our tax dollars to represent criminals,” the flier said. “Now he wants to use our tax dollars to pay defense lawyers like himself to help convicted sex offenders.”

Mannal, however, had never represented sex offenders before the board, and is not certified to do so, he said.

Still, angry constituents called his legislative office expressing their “disgust and contempt for him for filing legislation that he stood to benefit from,” Mannal wrote in a court filing.

On the surface, this seems like an easy call: Of course lying in a political ad should not be considered protected free speech. But there is some danger in trying to enforce such a law. Who decides which ads are lies and which are not? Nearly every political ad you see is, at the very least, slanted. Most of them omit facts and context that might mitigate the conclusion they’re trying to make the viewer reach. But who decides when it’s enough to be called a lie and therefore there should be criminal charges filed?

If you had a government agency do that, cooption would be an obvious problem. Given human nature, a Republican appointee would be more likely to determine that ads from Democrats are dishonest, and vice versa. If you allow criminal charges, as the Massachusetts law does, you’re leaving it up to juries and the chances that you’ll get objective rulings from a jury are slim and none (they all bring their own political biases). You could leave it up to a judge, but at the state level that’s even more dangerous. Most state judges are elected officials with de facto party affiliations. This just isn’t as easy a situation as it might seem to be initially.

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What Are Your Thoughts?leave a comment
  • eric

    I don’t think a neutral and fair law against lying in political ads is really possible, for all the reasons you mention. But it seems to me that our UK, European, and other western friends have hatched onto a reasonable solution: prevent all political advertising in the immediate run-up (2 weeks, 4 weeks, whatever) to an election. This prevents the bad speech from outrunning the good speech: no matter what you say about someone, the independent press will have time to ferret out the truth and report on it. Indidivuals will have time to do their own research. It also reduces the amount of emotional decision-making that may play into an election: while it may be very easy to carry a righteous anger you got from seeing yesterday’s campaign ad into the polling booth, it is much harder to keep that blood boiling for 2-4 weeks straight.

  • kantalope

    So all tv political ads would have to be a blank screen and no talking?

  • psweet

    Unfortunately, preventing political advertising would run into another problem. How do we define the independent press? Are Fox News and MSNBC independent? I don’t think anyone would claim that they’re unbiased, so would reports from them qualify as reporting, or as advertising? And if the former, what’s to stop someone forming their own “news” organization for just this purpose?

  • Chiroptera

    I’ve always pondered whether it would be a good idea to make deliberate lying illegal.

    Unfortunately, no matter how diligent one is in doing ones research, and no matter how careful one is, mistakes get made. Can the law really distinguish between deliberate lying and an honest mistake? I can see a chilling effect here: some people may become relunctant to take part in the public debate for fear that they may inadvertantly say something wrong.

    I can also see people of bad faith filing “nuiscance” charges against those with whom they disagree.

    I can see an environment where many people cannot afford to take advantage of their right to free expression; on the other hand, while Big Money can afford to continue to lie all they want.

  • beergoggles

    We already have laws targeting defamation. By your reasoning, Ed, nobody would be able to decide them either. Also, I’m sure there is a way to distinguish fact from opinion.

  • a_ray_in_dilbert_space

    Ironically, I think we are in a situation where the first amendment protects a liar from criminal penalties, and the politician’s stature as a public figure prevents him from recovering damages for libel.

  • http://motherwell.livejournal.com/ Raging Bee

    I agree that such a law would be very difficult to enforce evenly or fairly. But proposed laws like this point to a deeper problem: our media have lost all of the normal, non-coercive constraints on bad behavior that could have kept such defamatory rhetoric in check. The “mainstream media” could never have policed the content of campaign fliers, of course; but they used to be better at keeping such nonsense out of TV, radio and newspaper ads (for fear of offending too many of the mainstream audience); and that might have served to isolate the defamation in a campaign flier, maybe causing some people to think “I didn’t see this allegation on TV news, so maybe it’s not really true.”

  • moarscienceplz

    The real answer is for the voters to stop being such credulous goobers. Every political mailer I get goes in the recycle bin unread, and every political TV spot is either switched away from or just ignored.

  • eric

    Unfortunately, preventing political advertising would run into another problem. How do we define the independent press?

    Well, first I’ll punt by saying the right ‘meta-answer’ is that you study the countries that do it, figure out what sorts of things they do that work best, and plagiarize. I’ll also say that we don’t want to make perfect the enemy of good; if we find measures that reduce the incidents or effectiveness of last-second mudslinging, but don’t stop it entirely, that’s fine too.

    With those two things up front, here’s two ideas. The first is that you don’t try and define the press, you just prevent advertising. So if some Fox anchor wants to start mudsling-gate the day before the election, on a show, he/she can…but no commercial time can be bought to talk about it. Similarly with the print media: if the NYT editors want to sling mud in an op-ed you allow it, but you make it illegal for third parties to buy ad space discussing candidates or election issues in the NYT during the blackout. This would be a reduction in amount, but obviously not an elimination.

    The second is that you use revenue stream or corporate structure to identify real vs. fake news companies. The first typically operates year in and year out. They earn revenue from sources other than direct donations (with small personal donors making up essentially zero of their revenue). They spend a lot of their time covering issues other than the election, and they can, in some cases, be publicly traded. PACs? They want to set up for a few months and then go away. Their revenue is almost entirely donations – and often from obviously political groups such as the national GOP or national Dem party. Any time spent covering non-election issues is money wasted for them, and there is no way in hell the people setting it up are going to give up any control over content. Sure, there will be some gray cases. But again, if it cuts down on a mere 60-70% of PAC-like entities, isn’t that a win?

  • scienceavenger

    @5 and @7 Amen. I’d go even further and make it illegal to lie about anyone in a public forum. When the avenues for speech were severly limited as they were to newspapers and four TV channels, this was not such a big problem. But if you think Jefferson was right that ” a well-informed electorate is a prerequisite to democracy”, our democracy is at stake here, because it is simply not possible for every voter to take the time to research everything that is said. The results are already manifesting themselves in the epistemic closure bubbles so many live in, fed entirely on lies. When you’ve got a candidate for president falling prey to this as Romney did in the great “please proceed Governor” moment, its gone too far. Whatever difficulties exist have to be overcome, else our electorate will be voting based on fantasies, and that can’t end well.

  • Kevin Kehres

    Seems to me that the laws regarding libel and defamation are enough and there’s no need to gild this particular lily.

  • http://www.facebook.com/kitwalker1990 chriswalker

    We already have laws targeting defamation. By your reasoning, Ed, nobody would be able to decide them either. Also, I’m sure there is a way to distinguish fact from opinion.

    Go have a look-see at the middle range of Politifact’s truth-o-meter, from mostly false to mostly true. Every last one of those statements they evaluate have some kernel or nugget of truth to them, but either place facts next to one another in a misleading way or leave out some important bit of context. So it’s not a lie – for instance – to say that Rep. Joe Barton discussed wind being a finite resource and postulated that “slowing” the wind could increase temperatures, but it leaves out that the former was a quote from a scientific paper and the latter was a hypothetical scenario being posed to the person testifying (or that the remarks came from a congressional hearing in the first place).

    It’s not entirely honest, but it’s not a fabrication either. Is it false enough to warrant criminal charges?

  • lldayo

    Just get rid of politicians. Many problems solved.

  • http://www.shannonhubbell.com brundlefly

    Beyond the lying, what’s disgusting to me is how they’re demonizing public defenders for doing their jobs.

  • beergoggles

    #12 what would such a non-insulting statement have to do with claiming a political opponent is X or doing Y in a publicly broadcast advertisement?

  • EnlightenmentLiberal

    Might this already be covered under standard defamation law? What is the effect of this new specific law which “outlaws lying in a political ad”? Does it criminalize actions above and beyond standard defamation law? PS: I know that defamation law depends on which US state.

  • EnlightenmentLiberal

    PS: I could see a law creating statutory damages for defamation in the context of a political ad or some such. Seems reasonable at first glance.

  • David C Brayton

    I don’t think this is a close call. Not at all.

    Lying should be protected by the First Amendment, especially in politics. Why? Because of the tremendous chilling effect it would have on political speech.

    Imagine spending ten years in prison for telling a lie during the rough and tumble of a political campaign.

    The Koch brothers wouldn’t fund PACs any more. Instead, they would donate $850 million to district attorneys’ political campaigns and encourage these type of prosecutions.

    What person would say anything remotely not supported by the facts if the result could be arrest, bail, expensive defense lawyers and prison time? Hell, every speech a politician makes would need to be vetted by lawyers. And no answering questions from reporters…all questions would have to be submitted in writing and responded to in writing.

    Criminalizing political speech, even speech that is knowingly false and broadcast with a malicious intent, is a bad, bad idea.

  • U Frood

    Technically it’s not saying he’s representing sex offenders. It says defense lawyers “like him” represent sex offenders.

    But I still find it disgusting that they’re trying to demonize defense attorneys for representing unpopular defendants.

  • grumpyoldfart

    Who decides which ads are lies and which are not?

    It’s a “where do you draw the line problem”. No matter where the line is drawn there will always be people prepared to argue that it should be moved a little bit further this way or that.

    But the line must be drawn somewhere. We can’t just say it will be hard to prove each case so let’s not have any cases. (Or maybe we can)

  • StevoR

    Is It Okay to Lie in Political Ads?

    NO.

    It may be legal – although in my view it should fall under the false advertising and breach of contract laws – but it’s certainly unethical.

    Lying political ads may win in the short term but when pollies tell enough lies, break enough political promises and generally treat voters with such contempt they tend to end up in the mess our current much loathed PM is in – facing a leadership spill and not even getting through his first term of office.

    http://www.abc.net.au/news/2015-02-06/mp-seeks-leadership-spill/6075470

    Hopefully this will soon mark the final chapter in Tony Abbott’s terrible political career.

    Hopefully the same will happen to the other pollies who lie, break promises and shamefully exploit fear and hatred in their advertising (& general) political campaigns.

  • http://essaressellwye.tumblr.com Hershele Ostropoler

    The only real way I can see a ban on lying working is if the jury is to be instructed that if there is any way the words actually used could be said to be either factual or an opinion (or anything to which the words “true” and “false” cannot sensibly be applied), they have to acquit, even if the words are clearly intended to imply something false.

  • dingojack

    So Ed – how do juries work on cases of false advertising, fraud, libel and slander*, then? Since juries hearing such cases are clearly totally incapable of overcoming their bias, perhaps these should be taken off the statue books too. @@

    Dingo

    ———

    * Since all these involve an element of ‘knowingly or negligently passing on information that is false…’

  • caseloweraz

    Moarscienceplease: The real answer is for the voters to stop being such credulous goobers.

    Spot on — and not only with regard to elections.

    But short of that, which requires a truly effective system of education, I think laws against lying in campaign ads can work. We already have fact-checkers, after all. Tie them to the law (or maybe set up an independent fact-finding commission whose members serve for just one campaign). If any candidate’s ads are found to misstate facts, like saying a lawyer represents sex offenders when he hasn’t and isn’t certified for it, that candidate’s campaign could be required to pay his opponent a specified amount.

    Couple this with the two-week stand-down that Eric mentioned, to allow for processing. It could work, IMO.

    I’d like to see misleading statements dealt with too. But that’s a tougher problem.