Is It Okay to Lie in Political Ads?

Is It Okay to Lie in Political Ads? February 5, 2015

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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