Lying and Liars

 I have just finished a short, provocative book by a very good friend of mine, the law professor Catherine Ross.  Entitled A Right to Lie? Presidents, Other Liars, and the First Amendment, it surveys the law of lying in the United States with particular attention to several interesting court cases, and then asks what might have been done to deal effectively with our once and possibly future liar-in-chief, Donald J. Trump.  It is a very readable work of detailed legal scholarship and lay person will learn a lot from it.  While I would not have been able to accept a formal reviewing assignment because of our friendship, I see no reason not to explore the issues that it raises here.

The first part of the book explains carefully, first, that lying is generally protected by the First Amendment, and second, that as a result, recent states' attempts to ban lying during campaigns have generally been thrown out by federal courts.  Lying is of course illegal in certain contexts:  in legal proceedings, in filling out government forms, and if it is undertaken to secure monetary gain via fraud.  We also still have state laws against defamation--that is, slander or libel--but under New York Times vs. Sullivan (1964), which Ross discusses relatively briefly, it has become almost impossible for public figures to win defamation cases, since they must show willful, reckless disregard of the truth, motivated by "actual malice," on the part of the offender.  In 2005, the federal government tried to ban one form of lying in the Stolen Valor Act, which criminalized false claims of having been awarded certain military decorations.  When the case of Xavier Alvarez, a local elected official and compulsive liar, reached the Supreme Court, however, the court decided, in a split opinion, that the law was unconstitutional because it banned falsehood for its own sake, whether the speaker uttered it for a separate nefarious motive or not.  While banning falsehoods to serve a compelling interest might be legal were it done narrowly enough, any blanket prohibition against lies would violate the speech clause of the First Amendment. The Supreme Court held, in short, that the government cannot restrict speech under the First Amendment without some clearly compelling interest to do so that would not, in turn, lead to further indefensible prohibitions  Ross clearly agrees with that holding, and so do I.  The courts have also protected satirical falsehoods, creating a potentially dangerous doctrine that one is not liable for falsehoods that listeners could not be expected to believe--a sound doctrine, perhaps, in quieter times, but a slippery one in the climate of the 2020s. 

Political campaigns in the United States have featured outrageous lies both by candidates and their supporters since the first truly contested presidential election of 1796, and our greatest presidents, Lincoln and Franklin Roosevelt, probably faced more of them than anyone.  Ross cites the infamous Willie Horton ad of 1988, in which the George H. W. Bush campaign falsely claimed that Michael Dukakis was personally responsible for the furlough policy that had enabled a convicted murderer to commit a rape, as a particularly influential case.  However, in a long, controversial case involving a Wisconsin campaign for a seat on the state supreme court, Judge Michael Gableman eventually got away with a very similar and even more misleading claim against his opponent, even though he was bound by a judicial code of ethics that specifically banned campaign misstatements of fact. The case eventually reached the state supreme court--he recused himself--and Republican justices found ways to claim that the ad was not a lie, because its individual statements, while arranged in an utterly misleading sequence, were each true.  The court split 3-3 and dismissed the complaint against Gableman.  More generally, Ross tells us, federal courts have thrown out every state statute that has come before them since 2012 that tried to regulate campaign speech, except some relating to judicial elections where different rules often apply.  Various federal Courts of Appeals have agreed that such laws have to pass a strict scrutiny test, meaning that they would have to serve a "compelling interest," that they would truly solve the problem, and that they would not unnecessarily restrict other speech.  Opposing speech, in short, remains the only legal remedy against false campaign speech--but any serious historians knows that that has been the effective rule for the whole of our history, and we have so far survived.  Ross also makes clear that she believes this is how things should be.

In its last section, the book turns to the falsehoods of Donald Trump, who appears to have been a compulsive liar for the whole of his adult life.  She focuses on two sets of lies.  First, starting in early 2020, Trump's false statements about COVID, masking, and potential treatments obviously hampered a proper response to the pandemic and cost the nation an untold number of lives--in  my personal opinion, tens of thousands at least.  Second, of course, his refusal to accept the results of the 2020 election before, during and after it took place undermined faith in democracy and led to the January 6 insurrection.  In order to propose a remedy for these and similar lies, Ross begins with another provision of federal law.  The President is undeniably a government employee, and the political speech of government employees is in fact severely restricted.  Ross mentions that under the law, government employees' speech is only protected if they are speaking as private citizens on a matter of public interest.  I might add that federal employees in recent decades have been severely disciplined for circulating articles endorsing or criticizing candidates via email at work.  Such laws open the door, she argues, to legislation or other Congressional action--including warnings, censure, or impeachment--in response to presidential lies.   While she recognizes how unlikely such legislation is in the current climate, she wants us all to start thinking about it.

It is here that I personally have a different view.  I share the concern about the impact of presidential lies, but I think the remedy is already in the Constitution in the impeachment clause, which provides for the removal of the president upon conviction of "treason, bribery, or other high crimes and misdemeanors."  While lying in itself does not fall under those words, Trump's lies about COVID--and many other things as well--formed part of a pattern, for me, that would have fully justified his impeachment and conviction.  Here I am relying on my reading of another work of legal scholarship, Impeachment, the Constitutional Problems, by Raoul Berger, which appeared (fortuitously) in 1973.  The phrase "high crimes and misdemeanors," he showed, came from British precedents having to do with the impeachment and conviction of high officials (the monarch, unlike the president, being legally invulnerable in Britain.) It clearly did not refer to ordinary violations of laws, and an eminent 18th-century commentator, Richard Wooddeson, listed among precedents various kinds of malfeasance in office: "a lord admiral to have neglected the safeguard of the sea," "a privy councilor to have propounded or supported pernicious or dishonorable measures," and "an ambassador to have betrayed his trust," among other measures.  It is true, as Ross mentions, that in the debates in the constitutional convention, James Madison rejected "maladministration" as one specific grounds for impeachment because the word was too broad.  Yet in my opinion, those precedents show that truly disastrous performance of one's duties in office is indeed grounds for impeachment.  If a failure to "safeguard the sea" is sufficient grounds, then surely a failure to safeguard the whole people of the United States against an epidemic and instead repeatedly make statements that put that people risk must surely be grounds as well, in my opinion.

Although President Nixon resigned before he could even be impeached, he would not only have been impeached but convicted--as no other president has been--had he tried to remain in office. Lying, as Ross points out, was one of the reason--but his lies were a critical part of an attempt to cover up a serious crime, the Watergate burglary.   We agree that subverting our laws is proper grounds for impeachment.  I think that the nation now fails to recognize that disastrous performance in office should--indeed, in my opinion, must--be grounds as well because we take our government's functions for granted and tend to regard the presidency as something we bestow upon people we like.  Thus the Republican Party was willing to impeach Bill Clinton for lying about an extramarital sexual encounter, but turned a blind eye to Trump's four years of disastrous government.  Indeed, most of that party has now chosen to embrace his lies about COVID implicitly (by opposing various kinds of mandates) or explicitly (by endorsing the idea that the election was stolen.)

And on this point Ross and I agree: the current state of the Republican Party makes any remedy for these very serious ills impossible.  On the one hand, the Republic has ever been entirely healthy in this respect--we have heard many campaign lies and some presidential lies for the whole or our history.  It is only in the 21st century, however, that a major party nominated and the country elected a hopelessly compulsive liar to office, whose party subsequently became entirely loyal to him and reluctant to disagree with anything that he said. Meanwhile, I would add, distrust in government has grown so far that another large segment of the population no longer has any real expectations of it. The founders understood that our republican experiment depended upon an informed electorate and a responsible leadership class, and both of those, now, are lacking.   There may be no legal remedy for such ills.