Intentionally spreading lies can get most people in trouble with the law. Think perjury, slander and libel. If you’re a politician, however, the Supreme Court says certain lies and inaccuracies are protected under the First Amendment.
That counterintuitive legal logic has some free speech and legal experts worried because they think it’s kept one major political fabrication alive: More than a year after the 2020 election, one in three Americans still believe Donald Trump won, according to several polls.
That verifiably false notion–better known as The Big Lie–has led to everything from angry debates at family dinner tables to last year’s Jan. 6 insurrection at the U.S. Capitol.
Georgia played a decisive role in the outcome of the 2020 presidential election after state election officials rebuffed Trump’s efforts to get the results overturned, effectively putting Joe Biden in the White House. Soon after, Trump falsely accused some Georgia election workers of committing ballot fraud, further stoking public ire from those who believed his claims.
New York University School of Law’s Brennan Center for Justice assembled several experts in the legalities of free speech for a virtual seminar on May 4 to answer the question: “Is The Big Lie Protected Speech?” Politico’s White House correspondent and Playbook co-author, Eugene Daniels, served as moderator.
“We are in a five-alarm fire for democracy and it’s really scary,” said Katy Glenn Bass, research director at Columbia University’s Knight First Amendment Institute, adding that it’s taken years to reach this point. “This isn’t something that started in 2016. It is the result of decades of campaigns to undermine public institutions, campaigns to undermine faith in the media, and all sorts of declining trust in public institutions.”
Another speaker said top government officials should be held to a different legal standard than the general public–and that Congress should make it happen.
“Lies spread by presidents and other high-ranking government officials are so damaging to democracy that America must find constitutional ways to hold them accountable, more than we hold other liars to account,” said Catherine J. Ross, a constitutional law professor at George Washington University who specializes in the First Amendment.
Ross just published a book on the topic in November, A Right to Lie?: Presidents, Other Liars and the First Amendment. She makes the argument that the president and other top officials could be removed from office for lies without violating the First Amendment–even though it protects people from government retaliation for their speech–by instead viewing the government more narrowly as their employer.
“Because the president works for us, he should be treated like other government employees–and government employees do not have the First Amendment rights that the rest of us have vis-a-vis their employer,” Ross argued. “If they talk about something that can be connected in any way to their public duties, they can be fired and they don’t have a First Amendment defense.
“In the case of the president or other high federal government officials, the oversight the Constitution has in mind [for their personal free speech rights] should be provided by Congress,” she added.
Americans can do a lot themselves to nip egregious lies from our national leaders and former leaders in the bud, said panelist Ciara Torres-Spelliscy, a constitutional law professor at Stetson University Law School and a Brennan Fellow.
“They need to be their own fact-checkers,” she said. “Don’t fall for something just because you’ve heard it a hundred times. Diversify your media diet. Read broadly. Think for yourself.”
Just so you know…
Free speech doesn’t always mean you’re free to say or do what you want. Here are six exceptions:
Obscenity: Remember that old saying about obscenity? U.S. Supreme Court Justice Potter Stewart said in 1964: “I know it when I see it.” That’s still pretty much the case. Obscenity is not protected speech under the First Amendment, but it’s still hard to define. Even so, the Supreme Court came up with a three-part definition of obscenity in 1973 to help determine if a work is legal for the government to censor:
1) The average person, based on current community standards, would find it sexually arousing to an extreme or salacious degree.
2) It shows or describes, in an offensive way, sexual conduct or excretory functions, as defined by applicable state law.
3 )It lacks any literary, artistic, political or scientific value.
Lies: This is a tricky one. You can go to jail for lying under oath. That’s perjury. You also can be charged with misleading authorities in an investigation. And it’s illegal to run dishonest ads. If you deliberately lie about someone, expect to get sued for libel (if it’s in print) or slander (if you said it). But politicians have broad protections against being prosecuted for lying. And regular citizens have a lot of free rein to criticize the government–even if what you’re saying is untrue.
Violence: You can’t make offensive remarks or personal insults that could lead to a fight, and you can’t threaten violence against a specific person unless you’re obviously exaggerating. Saying, “I’m going to kill you in this round of chess,” is OK, for instance. You also can’t intentionally say things that cause emotional distress or incite people to “immediate lawless action.” And if you’re planning to overthrow the government and use a First Amendment defense to escape prosecution? Think again. A 1951 Supreme Court decision ruled that the First Amendment doesn’t protect the speech of people plotting a government coup.
Student speech: Students have limited free speech rights at school. That surprise obscene speech you were planning to make at the morning assembly? Forget it. It’s legal to suspend you. Your school also has the right to censor your student newspaper.
Offending your friends and coworkers: Our constitutional right to free speech only applies when the government–not a private individual, group or company–is trying to stop it. So you
don’t have the right to say whatever you want in someone else’s home or other private space.
What’s more, your right to free speech is extremely limited in your workplace. It’s legal for your employer to fire you for displaying a political bumper sticker that sticks in their craw–if that employer is a private company. But if you work for the government, you have the right to support any political candidate you want without fear of being demoted or fired. And wherever you work, sexually harassing or discriminatory speech is legally prohibited. That said, you have the right to discuss salaries with other coworkers or organize a union without fear of retaliation from your employer.
Expressing your political views: Just to be clear, the law has never permitted Americans to protest any way they want. The government can’t control what you say but how you say it is subject to what the courts consider appropriate.
Law enforcement is responsible for protecting people–including protestors–at political gatherings. But the authorities can restrict protestors to “free speech zones,” a tactic that has become increasingly common since the 1980s. The Secret Service can arrest anyone protesting near the president or vice president, and if you’re convicted of, say, trespassing or disorderly conduct, you’re looking at up to 10 years in federal prison–another place where freedom of speech is limited.
Source: The Saturday Evening Post