In the summer of 2012, much of the reporting on the politics of The Supreme Court focused on the electoral ramifications of the high court’s decision on the Affordable Care Act. In the rush to prognosticate on the politics of health care, many missed a Court decision that could have an equal impact on the political process—lasting well beyond President Obama’s tenure in the White House.
On the same day SCOTUS declared health care reform constitutional, its decision in U.S. v. Alvarez struck down the Stolen Valor Act on First Amendment grounds.
As a doctoral candidate at the Rutgers School of Communication and Information, I’m writing my dissertation on lying in politics. The Alvarez decision is an important part of my project. It’s a decision that, building on precedent, could theoretically grant protection to political candidates spouting blatant untruths on the campaign trail.
The Stolen Valor Act was a federal statute that outlawed taking credit for unearned military service and honors—specifically making it a crime to falsely claim having been awarded the Congressional Medal of Honor. Such lies, SCOTUS’ plurality held, were protected under the First Amendment.
While the Alvarez decision is in line with First Amendment doctrine, it could be viewed as problematic in its finding that protection goes beyond vague or subjective political falsehoods to include purposefully and unambiguously false statements.
A candidate either won the Congressional Medal of Honor or he did not. It’s not a matter of interpretation, but if he lies about it that lie is now protected speech.
With this decision, SCOTUS set a precedent that could affect a wide range of statutes dealing with deception in political campaigns. Take Michigan’s statute making it illegal to falsely present a candidate as an incumbent. In Florida, it’s illegal to make false or malicious charges against an opponent. And Alabama made it illegal to misrepresent oneself as a campaign affiliate. These are just three instances of many statutes that could be on constitutionally shaky ground in the wake of the Alvarez decision.
Historically, SCOTUS has ruled that general falsity is no reason for withholding First Amendment protection. In Brown v. Hartlage, a circuit court found a candidate for county commissioner in Kentucky violated a corrupt practices statute when he pledged to lower his salary if elected.
This raised questions of deception because it was unclear if he knew such a pledge was against the law at the time and if he purposely misled the public in order to win votes. Overturning that decision, SCOTUS ultimately held that, outside of libel, the chances of restricting deceptive political speech were slim. Alvarez could also play a part in two pending cases: 281 C.A.R.E. Committee v. Arneson and Susan B. Anthony List v. Driehaus. The 281 C.A.R.E. case revolves around a Minnesota statute banning campaign material containing false information about a candidate or ballot initiative.
The committee was accused of making false claims about an initiative. But 281 C.A.R.E. Committee says its statements were true, and the statute has a “chilling effect” on political free speech. The 8th U.S. Circuit Court of Appeals agreed. But the case’s final results are still pending because SCOTUS denied a petition for writ of certiorari, one day after the Alvarez decision.
The Driehaus lawsuit involves former Rep. Steve Driehaus (D-Ohio), who sued Susan B. Anthony List for defamation after they accused him, during his 2010 campaign, of supporting taxpayer-funded abortions because he voted for the Affordable Care Act. Though Driehaus halted the construction of accusatory SBAL billboards, he’s pursued the suit long after his reelection bid failed. Driehaus’ case raises questions about the subjectivity of judging truth in political advertising while pointing out another problem with attempts to regulate ad falsity: seeking out candidate information is usually considered better than regulating political speech.
The First Amendment is always present when lies are brought into a courtroom but, as UVA law professor Frederick Schauer wrote in a UCLA Law Review article, the First Amendment tradition has little to say about factual falsity—calling into question the value of correcting the record when false statements are made.
“Much of the First Amendment tradition, whether rightly or wrongly, at least takes the position that the way to deal with [false speech] is other speech that will point out the errors,” Schauer notes. “That’s perhaps empirically dubious, but that’s at least the tradition.”
That tradition is not supported by a 2010 study in the journal, Political Behavior, which found, not only does correcting false statements often fail to improve the public’s knowledge; it can actually backfire and reinforce misperceptions. Whatever the empirical evidence says, SCOTUS said in Brown there’s “a legitimate [state] interest in upholding the integrity of the electoral process.”
But when that interest potentially limits speech, it will bump up against the First Amendment.
Robert N. Spicer is a doctoral candidate in the School of Communication & Information at Rutgers University. His dissertation is entitled "Misinformation Wants to be Free: A discourse analysis of lying in politics."