Free Speech and False Speech PDF

FREE SPEECH
AND FALSE
SPEECH
Political Deception and
Its Legal Limits (Or Lack
Thereof)
Robert N. Spicer
Free Speech and False Speech
Robert N. Spicer
Free Speech and False

Speech
Political Deception and Its Legal Limits
(Or Lack Thereof)
Robert N. Spicer
Millersville University
Millersville, PA, USA
ISBN 978-3-319-69819-9 ISBN 978-3-319-69820-5 (eBook)

https://doi.org/10.1007/978-3-319-69820-5
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Acknowledgements
Thank you, Shaun Vigil and Glenn Ramirez at Palgrave, for your support
and patience with my busy schedule and slow work.
Thank you, Kim Zarkin, David Deeley, Dom Caristi, Paul MacArthur,
Heather Polinsky, and Kevin Johnson, for welcoming me into the law and
policy division at BEA.
Thank you, Jack Bratich, Dave Karpf, and Greg Seigworth, for reading
older versions of parts of this book in my dissertation.
Thank you, Susan Keith, for being an amazing advisor during my doc-
toral years, reading multiple drafts of a very long dissertation, and remain-
ing a supportive friend and colleague in the years since I finished my Ph.D.
Thank you, Abigail, Daniel, and Luke, for providing happy interrup-
tions to my work on this book, and for being great kids.
Most of all, thank you, Joanna. I’ve said it a million times and I’ll say it
for the rest of my life. Everything good that I have, I have because of you.
You made the work of completing this project possible and I dedicate it
and everything I do, to you.
v
Contents
1 Lies, Damn Lies, Alternative Facts, Fake News,

Propaganda, Pinocchios, Pants on Fire, Disinformation,
Misinformation, Post-Truth, Data, and Statistics 1
2 Conduct, Affiliation, and Messages: A Typology of Statutes

Addressing Political Deception 33
3 The Judicial Discourse in the Handling of Political

Misinformation (and Disinformation) 53
4 Three Recent Cases: Alvarez, 281 CARE, and SBAL 81
5 Conclusion: Two Paths in the Legal Woods 111
Appendix 127
References 137
Index 155
vii
CHAPTER 1
Lies, Damn Lies, Alternative Facts, Fake

News, Propaganda, Pinocchios, Pants
on Fire, Disinformation, Misinformation,
Post-Truth, Data, and Statistics
I wouldn’t believe Donald Trump if his tongue were notarized. Alair

Townsend, Former New York City Deputy Mayor
Singer (2016, p. 89)
Abstract The first chapter of this book sets the stage for the legal analysis
that makes up the bulk of the project. It will pay special attention to the
political discourse about dishonesty surrounding the 2016 presidential cam-
paign. The chapter will begin with a discussion of the way discourses about
political deception and dishonesty permeated the 2016 campaign and the
early stages of the Trump presidency. This will be a brief discussion looking
at a few categories of discursive objects that were the highest-profile parts of
the election. It will look at the concept of “fake news” and how that term
evolved in its use through Trump, his opponents, and his surrogates. This
will lead into a discussion about the debate within the news media about
how to handle (i.e. describe) false statements President Trump made during
the campaign, through the transition, and into the beginning of his presi-
dency. The chapter concludes with an explanation of the notion of “post-
truth” politics as it was defined through the lens of the Trump era.
Keywords Trump • Post-truth • Fake news • Political communication

• Deception • Campaigns • Freedom of speech
© The Author(s) 2018 1

R. N. Spicer, Free Speech and False Speech,
https://doi.org/10.1007/978-3-319-69820-5_1
2 R. N. SPICER
Introduction
In the months after the 2016 presidential campaign, and into the opening
months of the Trump presidency, as this book was being written, decep-
tion was a key element, if not the key element in the broader discourse
about American politics and about the Trump presidency specifically. Lies,
misleading statements, baseless accusations for which there was no evi-
dence; these terms permeated the discourse about Donald Trump. In the
months of his administration’s transition, and beyond the inauguration, it
is not an exaggeration to say that, especially for his opponents, deception
was the central concept for characterizing President Donald Trump.
It is quite interesting how the various terminologies became inserted
into discussions of everything Trump said. From late-2016 into early- and
mid-2017, it was common to find a discussion about a statement from the
new president that involved either accusing him of purposefully mislead-
ing the public or at the very least of making a statement of either question-
able veracity or that was demonstrably false, even if he genuinely believed
it to be true. Some discussions included debating whether the new presi-
dent believed what he was saying himself.
The discussion about Trump’s honesty even reached the point of
questioning his sanity. In the summer of 2016, the co-author/ghostwriter
of his book The Art of the Deal, Tony Schwartz, actually said that if he
could retitle the book he would call it The Sociopath (Mayer 2016, para.
9). Questioning Trump’s sanity continued into his presidency and was
linked to his perceived proclivity for falsehoods and outright lies. In
February 2017, in an appearance on CNN’s Sunday program State of the
Union, Senator Al Franken (D-Minn) claimed that behind closed doors
even Republicans were unsure of Trump’s sanity because the president
“lies a lot,” as Franken put it (Pengelly 2017, para. 3). He added that he
had “heard great concern about the president’s temperament” in part
because of his lies (para. 9). Around the same time, independent Vermont
senator, and former presidential candidate, Bernie Sanders said of Trump,
“We have a president who is delusional in many respects, a pathological
liar” (O’Keefe 2017, para. 4). Certainly, these are all statements from
people who politically opposed President Trump, and all presidents have
political opponents who accuse them of dishonesty at one time or another
during their tenure. However, the quantity and quality of the accusations
were something different from what past presidents have seen. As Senator
LIES, DAMN LIES, ALTERNATIVE FACTS, FAKE NEWS, PROPAGANDA… 3
Franken put it, Trump’s behavior was, “not the norm for a president of
the United States or actually for a human being” (Pengelly 2017, para. 6).
While political deception has existed for as long as politics itself, the
frantic, fraught, and fearful discourse about deception was so present early
in the Trump presidency that it is an essential component of understand-
ing it. It might even be the essential component to understanding not just
his presidency in specific but American politics in 2017 more broadly. This
makes it more important than ever to address political deception as a con-
cept and to look at it through the lens of a legal analysis, which is the
project of this book. If the Trump presidency put lying, and other forms
of deception, front and center as a problem in our politics, we should be
addressing what the law has to say about what is allowed and what is not
allowed in terms of political acts of deception. If nothing else, we ought to
be questioning what our political leaders are legally able to do should they
deem it expedient, or even necessary, to mislead the public.
The other reason for addressing this issue, especially in the Trump era,
is because a president’s words matter in a way that other people’s, and
even another political leader’s, words do not. A president’s words have a
different kind of weight. When he speaks, the public has to be able to
believe what he is saying. Whether it is dealing with implementing changes
in domestic policy, managing foreign relations, or (probably most impor-
tant) dealing with national security, the public has to be able to believe
what their president tells them. On the national security front, this is espe-
cially true in the post-Iraq War era with so much of the public feeling as
though the Bush Administration’s claims about weapons of mass destruc-
tion, used to justify the war, were purposefully misleading (Stein and
Dickinson 2006). Some, such as Kenneth Pollack (2004), argued that
there was poor intelligence gathering but that it was not as bad as believed,
with the real problem being the administration’s exaggeration of that
intelligence (para. 3). Others, such as Bob Drogin (2007), argue that
members of the administration were not the perpetrators of deception but
rather victims of it themselves, having been misled by a source named
Curveball.
Concerns about misinformation (or perhaps disinformation) about
very serious matters of war and peace are the reasons why it is so discon-
certing that the Trump Administration’s relationship with the public
started with what appears to be a lie (or, if not purposeful deception, at
least a false statement they insisted upon holding onto despite evidence to
the contrary). Following the inauguration, someone from the U.S. National
4 R. N. SPICER
Parks Service tweeted out side-by-side images of the January 2013 inau-
guration of President Barack Obama and the January 2017 inauguration
of President Trump, showing a significantly larger audience for the former
(Shear and Haberman 2017). The day after the inauguration, National
Public Radio (NPR) reported that the Trump Administration “spent its
first full day in office taking shots at the media and arguing about crowd
sizes at Friday’s inauguration” (Taylor 2017, para. 1).
The moment in this controversy that will likely be most remembered
was when press secretary Sean Spicer (no relation to the author of this
book) declared to the gathered reporters, “This was the largest audience
to ever witness an inauguration—period—both in person and around the
globe,” a claim that NPR politely referred to as “unverifiable” (para. 9).
Other sources were less measured in their responses. The Washington Post’s
Fact Checker gave Spicer Four Pinocchios for the statement (Kessler
2017) and the fact-checking organization Politifact rated the statement
“Pants on Fire” (Qiu 2017). Writing for Vox, Andrew Prokop (2017)
lamented that, while the point of the argument may not have been impor-
tant, it raised questions about whether the new administration could “be
trusted to provide basic factual information” (para. 5).
So the Trump Administration started its relationship with the news
media (and the public) embroiled in an unnecessary brouhaha over a
demonstrably false statement about something that wasn’t even that impor-
tant. By May of his first year in office, a big part of the discourse surround-
ing President Trump’s honesty or, for some, lack thereof, turned toward
questioning whether he, and his administration, had already lost their cred-
ibility. Critiques of his credibility came from across the political spectrum,
from various media outlets of differing ideological background.
A LexisNexis search for “Trump + credibility” yields hundreds of
results, the earliest of which is a New York Times article from 1987 about
Trump’s business dealings (Crudele 1987). In the context of the cam-
paign and the early months of his presidency, Trump’s credibility was
examined in relation to multiple issues. In March 2016, the Guardian
newspaper in England questioned whether Trump was even a credible
candidate for the presidency, given his statements about women (Bixby
2016). This argument almost seems quaint in hindsight, knowing the
number and intensity of controversies Donald Trump managed to survive.
Dan Balz (2017a) of The Washington Post reported that the “firing of
James Comey as director of the FBI has left the credibility of President
Trump’s White House in tatters” (para. 1). A few days later, Balz (2017b)
made the point that Trump’s “credibility gap” was growing because of his
inability to avoid controversy.
Trump’s credibility was not only subject to criticism from reporters and
liberal opponents but also conservative circles that should, in theory, have
been much friendlier to the president. In an article on Politico, Republican
strategist Steve Schmidt said the Trump White House’s credibility was
“completely shattered. They’ve engaged in serial lying to the American
people … It’s unprecedented for an administration, from the top on
down, to embrace a strategy of deception and lying” (para. 5). In March
of 2017, the conservative editors of the Wall Street Journal (2017) argued
that Trump needed to “show more respect for the truth” or risk losing the
trust of the American people (para. 11).
The importance of this discussion of credibility goes beyond Trump,
but he is the subject of discussion here because he is the current president.
Credibility matters not so much when it comes to how big a crowd was,
but rather, during times of serious danger. USA Today (2017) made this
point in arguing, “Trump has often turned to Twitter or voiced outra-
geous claims, each time shedding more of his credibility—credibility he’ll
need in moments of external crisis” (para. 7).
This introductory chapter will establish the importance of this topic by
starting with the way discourses about political deception and dishonesty
permeated the 2016 campaign and the early stages of the Trump presi-
dency. This will be a brief discussion looking at a few categories of discur-
sive objects that were the highest-profile parts of the election. It will start
with the concept of “fake news” and how that term evolved in its use
through Trump, his opponents, and his surrogates. This will lead into a
discussion about the debate within the news media about how to handle
(i.e. describe) false statements President Trump made during the cam-
paign, through the transition, and into the beginning of his presidency.
The chapter concludes with an explanation of the notion of “post-truth”
politics as it was defined through the lens of the Trump era.
Fake News Is Not New: Donald Trump Volleys

the Accusations
The term “fake news” became a bit of a buzzword in the aftermath of the
2016 presidential campaign. Two key articles after the campaign stood out
as sources of consternation for those who were concerned about the
6 R. N. SPICER
henomenon. First, there was the BuzzFeed analysis of fake news stories
p
and which ones in particular received the most attention. Craig Silverman
(2016) found that the circulation for fabricated stories on Facebook out-
numbered that of factual reporting from mainstream news sources (para.
2–3). He also found that seventeen of the twenty top performing false
stories to appear on the social network were either pro-Trump or anti-
Clinton (para. 9). So, while Silverman does not make an argument about
whether such fake news swayed the electorate in general, or any section of
it, toward voting for Trump, he does demonstrate how such stories circu-
lated broadly, how their content favored then-candidate Trump, and how
those Facebook pages responsible for them saw increases in their user
engagement.
Silverman also found that many of the fake news stories were coming
from openly hyper-partisan sources on Facebook. However, the second
significant piece of reporting on fake news shows that there were people
circulating such stories with motives other than partisanship. In reporting
for Wired, Samantha Subramanian (2017) found a town in Macedonia that
was “the registered home of at least 100 pro-Trump websites, many of
them filled with sensationalist, utterly fake news” (p. 70). The poster boy
for this was a young man who goes by the pseudonym “Boris” for
Subramanian’s article. Boris made money posting fake pro-Trump news
stories, not because he cared about whether Trump won the election, but
rather because he wanted the money from Google ads that clicks on his
website would generate for him. A New York Times analysis similarly quoted
one proprietor of a fake news, pro-Trump website as saying of his work,
“this is all about income, nothing more” (Higgins et al. 2016, para. 29).
If there is one important thing to know about the fake news phenomenon
that was front and center for many critiques of the 2016 campaign, it is
that, oddly enough, it was not new. Journalist John Dickerson (2016)
recounts the tale of James Callender, a well-known fabricator and scandal-
monger from the earliest years of American politics. Callender spread false
rumors about John Adams and Alexander Hamilton in the service of
Thomas Jefferson’s political goals. However, he later turned on Jefferson
and is probably best known for spreading a rumor that we now know to
be true: that Jefferson had fathered children with one of his slaves, Sally
Hemmings.
The use of fake news programming evolved after Callender’s time, over
centuries of American politics, with new forms of media. During World
War II, the Allies used fake news radio broadcasts that contained informa-
tion intended to lower the morale of Nazi troops (Shaer 2017).
Domestically in American politics the creation of fake news continued
with practitioners such as Walter Quigley, who was responsible for what he
called “dynamiting” newspapers. In the early- to mid-1900s, Quigley
would circulate this campaign literature, which was disguised as mock
newspapers with the masthead United States Senate News, containing fake
information about his candidate’s political opponents (Jonas 1957).
In more recent years, the term “fake news” has undergone quite an
evolution. Researchers in communication and media studies have used the
term to refer to satirical news programs such as The Daily Show, which rose
to prominence during the Bush and Obama years and continued into the
Trump Administration. Jon Stewart, the host of The Daily Show from 1999
to 2015, was introduced in his infamous appearance on the now defunct
CNN political debate program Crossfire as “the most trusted name in fake
news” (Love 2007, p. 33). In his discussion of fake news for The Columbia
Journalism Review (CJR), Robert Love (2007) presents a succinct tale of
the history and evolution of the phenomenon. As Love demonstrates, the
term has been applied to a wide variety of content including, but not lim-
ited to, false information leading to the Spanish American War, a fake his-
tory of the bathtub, doctored war photos from the Los Angeles Times and
Reuters, and, of course, the satire of The Daily Show. The difference
between that last example and the others on that list is that the consumer
knows that what they are watching is satire, while the others are presented
as authentic despite their misinformation.
Research on fake news as satire has explored the topic from a variety of
angles. Reilly (2012) examines the ways in which “satirical fake news
responds to the everyday discursive realities of newsgathering practices”
(p. 273). This analysis uses examples from how The Daily Show and the
Onion “reported” on serious matters such as the Iraq War and Middle
East conflict. Balmas (2014) used survey data and a content analysis of real
news and satirical content during the 2006 Israeli election to look for con-
nections between exposure to satirical news and feelings of efficacy, alien-
ation, and cynicism. This study found that the negative portrayal of
politicians in satirical news affected viewers who did not also view real
news, which tempered the potentially negative effects of increased cyni-
cism resulting from the satire. Brewer et al. (2013) similarly found a link
between cynicism and the viewing of satirical news. However, their
research also found that combined exposure to hard news and satirical
8 R. N. SPICER
news, such as The Colbert Report, resulted in an increase in the viewer’s

sense of political efficacy. Finally, Day and Thompson (2012) looked at
the SNL fake news segment “Weekend Update,” arguing that it, unlike
The Daily Show and The Colbert Report, has never had any pretense of
informing its viewers, and rather than “provid[ing] satire or political com-
ment, [has acted] as a familiar segment and episode linchpin” (p. 177).
In his CJR article, Love also points out the odd coinciding between the
phenomena of satirical news and fake video news reports (VNR) that the
government and corporations distributed to news stations. The Center for
Media and Democracy define VNRs as “pre-packaged ‘news’ segments
and additional footage created by broadcast PR firms, or by publicists
within corporations or government agencies … designed to be seamlessly
integrated into newscasts, and are freely provided to TV stations” (Farsetta
2006, para. 7). Their research found that sixty-nine news stations around
the U.S. broadcast such VNRs without labeling them as produced by gov-
ernment or private interests, giving the viewers the false impression that
what they were saying was unbiased reporting produced by those stations.
This book will address many of the First Amendment issues surrounding
political deception. The issue of VNRs going unlabeled is one area that
calls out for regulation in order to protect the public from being misled
but, problematically, even such a commonsense law might find itself com-
ing up against a First Amendment challenge.
In the context of the 2016 election and the months that followed, the
term “fake news” came to mean something slightly different from a refer-
ence to satire and something closer to phony government PR. At first it
was used to refer to those aforementioned fabricated stories from the
Silver and Subramanian articles. A good way to define “fake news” in ref-
erence to this kind of content would be as any story that is fabricated, in
its entirety or in part, and is then circulated via social media, in order to
influence public perception, and/or gain and then profit from users’
attention.
While the profit component of that definition has been pretty well
established as happening, the influence part is somewhat more controver-
sial. Politifact declared “fake news” the winner of its annual Lie of the Year
award (Holan 2016). Writing for the Guardian, Hannah Jane Parkinson
(2016) notes Facebook founder Mark Zuckerberg’s skepticism that this
fake news had any influence on the outcome of the 2016 election.
Parkinson is presumably skeptical of Zuckerberg’s skepticism, headlining
her article, “how fake news helped Donald Trump win a real election.”
The Australian Broadcasting Corporation featured an article shortly after

the election that was also headlined with the position that the outcome of
the vote was influenced by fake news on social media (Perrott 2016).
Citing the same comments from Zuckerberg as the Guardian, the ABC
article counters with quotes from Australian scholars such as Mark Pearson,
who argues that there was “an enormous amount of misinformation”
(para. 5) and that he is “sure many of these posts would have influenced
voters” (para. 9).
While these and many other sources were lamenting the impact of fake
news on the election, there is good reason to share Zuckerberg’s skepti-
cism. Researchers from Stanford and NYU did their own analysis of the
issue and argue that the fake news stories in their data, “would have
changed vote shares by an amount on the order of hundredths of a per-
centage point” (Alcott and Gentzkow 2017, p. 232). This is not to say
that fake news does not matter. Alcott and Gentzkow do note the over-
whelming ratio in favor of Trump, and against Clinton, in terms of the
number of fake stories and the number of shares for each (p. 223).
However, the quantity of fake news does not necessarily translate into
influence. As Alcott and Gentzkow point out, the partisan leanings of the
reader are likely to influence whether they believe something to be true,
which means these fake news stories are more likely reinforcing partisan
positions than changing minds.
Which brings us to the very definition of the term “fake news.” Though
some may accept the definition proposed above in this section of the chap-
ter, the term took a bit of a “right turn,” so to speak, during a Donald
Trump press conference shortly after the election. Then President-elect
Trump was taking questions from the assembled reporters when he got
into a verbal skirmish with CNN reporter Jim Acosta. Acosta shouted,
“Since you are attacking our news organization … can you give us a chance
to ask a question, sir?” Trump replied, “Your organization is terrible,” as
he attempted to move on to a question from a Breitbart writer. Acosta
persisted in his attempts to ask his question, to which Trump finally
replied, “You are fake news” and moved on. This incident from January
2017 was widely reported (Jamieson 2017; Savransky 2017; Slack 2017;
Sutton 2017). This was the point at which the term “fake news” shifted
from referring to fabricated content used for partisan purposes to refer to,
as one NPR article noted, a tool Trump used against “all unfavorable news
coverage” (Kurtzleben 2017, para. 4).
10 R. N. SPICER
In April 2017, The Reporters’ Lab at Duke University’s Sanford School

of Public Policy examined Trump’s use of the term “fake news,” looking
through his tweets, speeches, interviews, and press conferences. Student
researchers there found that 41 percent of the times he used the phrase he
was referring to coverage of his campaign and administration’s alleged con-
nections to Russia (Griffin 2017, para. 3). The other uses of the terms were
to “scold the press in general or to complain about its coverage of specific
topics” (para. 4). This analysis reinforces the argument that Trump’s use of
the term fake news was intended to shift its meaning away from those
phony click-bait stories described in Subramanian’s article to be used as a
tool to delegitimize criticism of his campaign and administration.
This attempt at delegitimizing the press had a coinciding, and
particularly ugly and unsettling, variation from both Trump himself and
some of his supporters. First, on February 17, 2017, President Trump
tweeted from his personal account, “The FAKE NEWS media (failing @
nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the
enemy of the American People!” (Trump 2017). The phrase “enemy of
the American People” stood out for a lot of critics as being particularly
problematic coming from an American president. The New York Times
quoted Watergate reporter Carl Bernstein as saying this language “may be
more insidious and dangerous than Richard Nixon’s attacks on the press”
(Grynbaum 2017, para. 9).
An equally frightening, although slightly less noticed trend, was when
some Trump supporters, particularly those in white supremacist circles,
started using the term “Luggenpresse” to describe the American news
media. Margaret Talbot (2016), writing for the New Yorker during the
2016 campaign, argued that “‘Dishonest’ and ‘lying’ are Trump’s go-to
insults when talking about the press” (para. 12). However, Trump’s phrase
is not quite as problematic as his supporters saying “Luggenpresse,” a
word that was popularized by the Nazis during Hitler’s rise to power and
reign (Nesbit 2016). This word was used, combined with a video featur-
ing alt-right activists, with activist Richard Spencer in the lead, chanting,
“Hail Trump! Hail our people! Hail victory!” as they collectively per-
formed Nazi salutes (Lombroso and Applebaum 2016).
The problem here, in addition to the obviously troubling allusions to
the Nazis, is that, as Tom Rosenstiel (2016) argues for the Brookings
Institution, there are currently some in American politics “who want to
position a free press as the political opposition rather than a separate and
independent fourth estate” (para. 5). On one hand, there are some who
argue that there might be a legal remedy to the problem of fake news
(Feldman 2016). The legal arguments are going to be addressed exten-
sively in this book. On the other hand, there is a common argument that
the solution to such speech is not a law banning it but rather more speech
to correct and counteract it. This solution becomes a little more difficult
when a small but significant and vocal minority in American political life,
one of whom is sitting in the Oval Office, is not simply debating their
opponents and attempting to present fact-based arguments to support
criticism of their media coverage, but rather calling journalists liars and
traitors.
Coming up with a solution for how to respond to such hyperbolic
criticism is one of the biggest challenges journalism faces at this political
moment. The other is how to handle the false statements that Donald
Trump makes in his capacity as a president (and as a Twitter personality).
This is the main question of the next section of this chapter: is it okay to
call the president of the United States a liar?
What Label to Use?

In a fascinating blog post, Columbia University political science professor
Tom Pepinsky (2017) outlines some subtle differences between the com-
munication styles of true dictators as opposed to people who are simply
narcissistic bullies, arguing that Donald Trump is the latter. In that post,
Pepinsky lays out four characteristics of authoritarian communication, one
of them being that this brand of leaders rarely lie about verifiable facts,
instead focusing deceptive practices on broad narratives about the state of
the world.
Pepinsky was writing this in response to the Trump Administration’s
insistence that his inaugural crowd was “the largest audience to witness
an inauguration, period” (Qiu 2017, para. 2). Pepinsky (2017) argues
that what makes Trump a narcissistic bully, rather than an authoritarian,1
in his communication strategy is that, “No successful dictator would
send a minion to berate the press about an easily checked fact” (para. 9).
Writing for The Washington Post, Xavier Marquez (2017) similarly argues,
“propaganda often focuses on unfalsifiable narratives about the goodness
of the leader or the greatness of the nation” (para. 10). This stands in
contrast to lying about something that can be verified by simply looking
at the side-by-side photographic comparisons of the Obama and Trump
inaugurations.
12 R. N. SPICER
Donald Trump, with his unorthodox and unprecedented style, created

a major labeling problem for the American news media. Emanating from
this question of whether Trump or his supporters could be classified as
authoritarian, and how to respond to the propagandistic techniques
accompanying their politics, was a debate about whether to label Trump
himself a “liar” and any false statements he made as “lies.” This was an
important debate about the nature of journalism as a practice that went
beyond simply whether a certain word should be used. The debate itself,
which sparked a variety of perspectives within the field, constituted what
could almost be described as an identity crisis for American journalism that
was rooted in a long history of the concept of objectivity, its place in
reporting, and even its definition.
The label of “liar” is contentious both in terms of its social significance
and the philosophical debate around how it is used. The sensitivity toward
its use is exemplified in an exchange during a press gaggle with then dep-
uty White House press secretary Sarah Huckabee Sanders. After former
FBI director James Comey’s testimony before the U.S. Senate Intelligence
Committee, in which he stated that he took thorough notes of his meet-
ings with President Trump because he was afraid that Trump would lie
about what was said in those meetings, a reporter asked, “Is the President
a liar, as former Director Comey says?” (White House 2017, para. 17).
Sanders responded, “No, I can definitively say the President is not a liar. I
think it’s, frankly, insulting that that question would be asked” (para. 18).
This debate about whether Trump was a liar did not start with James
Comey. It hit a few highpoints at moments both during and after the cam-
paign, setting off debates at each step about the use of the word. First,
there was the article on CNN’s website on September 24, 2016 with the
headline, “The weekend America’s newspapers called Donald Trump a
liar.” Reporter Brian Stelter (2016) outlined a sequence of events starting
with The New York Times publishing their article titled, “A week of whop-
pers from Donald Trump,” which described a series of statements from
Trump as “a blizzard of falsehoods, exaggerations and outright lies”
(Haberman and Burns 2016, para. 1). Politico (Cheney 2016), The
Washington Post (Kranish et al. 2016), and the Los Angeles Times (Finnegan
2016) “followed within hours” after The New York Times, Stelter reported
(para. 2).
Stelter’s article on the CNN website simply reported on what was
reported, an act of meta-journalism, synthesizing the basic arguments and
characterizations of the four articles. That Sunday on the Fox News
program Media Buzz there was more of a debate about the content of
those articles, with host Howard Kurtz and his guests discussing the issue
from a few angles. Erin McPike complained that The New York Times
would not take a similar approach to Hillary Clinton’s apparent false-
hoods. Julie Roginsky countered, pointing out the problem of false equiv-
alence in journalism, and arguing that Hillary Clinton does lie but that the
comparison between Clinton and Trump was that “she lies like a politician
and he lies like an alcoholic.” Lisa Booth on the other hand argued that
these articles were just more evidence of liberal media bias (Kurtz 2016).
A similar debate was set off a few months later when Wall Street Journal
editor Gerard Baker appeared on the NBC Sunday show Meet the Press.
During that interview, host Chuck Todd asked Baker about a leaked meme
Baker had written in which he urged WSJ reporters to be fair in their cov-
erage of Donald Trump. Baker explained:
[I]t’s certainly true that Donald Trump … has been a different kind of
candidate, presumably he will be a different kind of president. He operates
outside the mainstream. He says things that are challengeable, to put it
mildly, that are questionable. And I think a lot of reporters feel that—some-
how feel very much that they are part of the—they’re in the contest really
and that it is their job to take him on. (Todd 2017)
However, Baker said, while it is a reporter’s job to challenge politicians he

was concerned that reporters “would go beyond the reporting of a story.”
This was especially problematic, Baker argued, with the advent of social
media where it becomes easier for reporters to lose their sense of dispas-
sionate observation and veer into the realm of expression of opinion.
Chuck Todd goes on to later bring up the question of whether to label
Trump a liar. To this issue Baker replies, “I would be careful about using
the word lie. Lie implies much more than just saying something that’s
false, it implies a deliberate intent to mislead.” Baker explained that it is
acceptable to point out when a statement is incorrect. Using the example
of Trump’s false statement that Muslims in New Jersey were celebrating
when the twin towers fell on September 11, Baker argued that it was
acceptable for reporters to say that “nobody found any evidence of that
whatsoever” (Todd 2017).
Baker followed his appearance on MTP with an editorial in the WSJ
defending his position against the use of the label “liar.” There he echoed
his sentiments from his television appearance and clarified his position that
14 R. N. SPICER
he was merely arguing that reporters should be “careful” with the word
liar, not ban it altogether (para. 7). Baker also made an important distinc-
tion between his belief “that many of the things Mr. Trump has said in the
past year are whoppers of the first order” and the actual reporting on what
Trump has said. Just because a reporter believes something to be true does
not mean they are justified in reporting it as a fact.
Baker’s arguments set off a bit of a debate about the merits of labeling
Trump a liar. Peter St. Onge (2017), writing for the Charlotte Observer,
posed the question, “Does Donald Trump lie?” He answered his own
query, “Of course he does. He says things that aren’t true, knowing that
they’re not true” (para. 1–2). However, St. Onge said, there is already a
paucity of public trust for the news media and if “reporters decide to take
moral stands that include calling falsehoods ‘lies,’ we risk greater deterio-
ration of that trust” (para. 13). Baker made a similar argument in his WSJ
editorial published after his appearance on MTP.
The debate that followed Baker’s appearance and subsequent editorial
was another act of meta-journalism. Columnist Leonard Pitts argued that
calling Trump a liar was part of a larger “moral stand,” and that to do
otherwise was to give in to a false sense of balance where none was needed.
“Five minutes for Hitler, five minutes for the Jews,” Pitts (2017) lamented
(para. 1). David Leonhardt (2017) echoed this in The New York Times,
arguing that there was a tension between the news media stating facts and
appearing biased to some readers and that the media should just state the
facts in that conflict.
The Washington Post’s Greg Sargent (2017) argued that Trump’s false
statements constituted lies because he repeated them even after they were
demonstrated to be false. Even if Trump still believed them despite proof
to the contrary, the bigger problem in not labeling Trump a liar was that
it risked “enabling Trump’s apparent efforts to obliterate the possibility of
agreement on shared reality” (para. 13). His Post colleague Callum
Borchers (2017) pointed out that this argument in favor of the liar label
was a change in journalistic standards with which the news media should
be uncomfortable. Another Post writer, Ruth Marcus (2017), argued that
media “shouldn’t hesitate to label an assertion false, but it should be cau-
tious about imputing motive” (para. 9).
In response to all of this, Jesse Singal (2017) wrote in New York
Magazine that Baker was correct in asserting, “journalists shouldn’t reach
too quickly for the L-word to describe Trump’s endless false statements”
(para. 3). Singal argued that the entire debate over the label was a bit of
a distraction from a more important journalistic question. “Aggressive

fact checking can exist,” Singal argued, “regardless of whether or not the
fact-checker chooses to then ascribe intent to the utterer of false claims”
(para. 10).
The third significant point at which the debate over whether to label
Trump a liar occurred in the week after his inauguration in January 2017.
Earlier in the month, when the debate around Gerard Baker was brewing,
David Leonhardt, of The New York Times, argued in his column that, while
Baker was correct in saying that the media should be careful with the label
liar, they should also not avoid it altogether. Later in the month, the Times
set off another debate over the label when they decided it was appropriate
to assign the term to Donald Trump’s claim that millions of people had
voted illegally in the 2016 election.
On January 23, they headlined one article: “Trump repeats lie about
popular vote in meeting with lawmakers” (Shear and Huetteman 2017).
Two days later, a second Times article featured the headline: “Trump
won’t back down from his voting fraud lie. Here are the facts” (Fandos
2017). On January 25, NPR entered the debate and cited the Times as a
contrast to their own editorial choice. In an article explaining NPR policy,
Richard Gonzales (2017) cited a few examples where Trump had made
claims and NPR had pointed out in their reporting that his claims were
false or unsubstantiated. This brought criticism from listeners who said the
station should call Trump’s statements lies.
Gonzales cites NPR reporter Mary Louise Kelly’s response to the
criticism. She said despite the calls from listeners to label Trump a “liar,”
she felt that it was wrong, because to do so would ascribe intent on
Trump’s part and she was unable to verify such intent. “I can tell you what
he said and how that squares, or doesn’t, with facts,” Kelly said (Gonzales,
para. 9). Gonzales also cites NPR vice president for news, Michael Oreskes,
who argued that using the word “lie” was not the best policy because it
would “push people away” (para. 11). In other words, the audience wants
the facts, and to use such a strong word might turn some of them off.
Over the course of these three key moments in this debate a number of
arguments were most commonly seen to pop up again and again. Some
made the argument that the Times labeling Trump a liar was an “abdica-
tion of responsibility to journalism” (Mayhew 2017, para. 1). Others,
such as Barton Swaim (2017) made the point that if reporters are going to
call Trump a liar, why not label every other liar? He also makes the point
that parliamentary bodies have rules against members using the words
16 R. N. SPICER
“lie” or “liar” against one another, because “You can’t have a reasoned
discussion with someone who questions your good faith” (para. 7). On
the other side, The New Republic argued that if “the president is lying, he
needs to be called out” (para. 4). In contrast to the argument that labeling
something a lie was an abdication of journalistic responsibility, Matthew
Ingram (2017), writing for Fortune, argued, “If a news outlet wants to be
seen as a vehicle for the truth, then how can it not call a lie a lie? If any-
thing could cause a further erosion of trust in the media, surely it’s that.
Right?” (para. 11).
In the waning days of the campaign, The New York Times published an
opinion piece lamenting the inability of the media to sufficiently describe
and critique what was happening with Donald Trump’s false statements.
“On a certain level, the media lacked the vocabulary to describe what was
happening,” Jason Stanley (2016) writes. “Trump was denounced repeat-
edly for ‘lying’ and at times the apparently more egregious ‘bald face
lying’” (para. 2). In another Times article, Dan Barry (2017) echoed this
sentiment, arguing that the challenge of covering Trump and whether to
label his false statements as “lies” would “be a recurring challenge” (para.
5). This debate would seem to indicate that American journalism just
wasn’t prepared to handle a politician like Donald Trump and that a con-
tinued discourse on this issue is likely necessary—not just for handling the
Trump presidency but for all politicians, present and future.
Post-Truth Politics
The journalistic debate about whether to label Donald Trump a liar is
pertinent to a legal discussion in one important way. Before codifying and
enforcing legal sanctions for telling a lie it is, obviously, essential to define
what a lie is. As the debate above demonstrates, this is not an easy task. It
is a question that philosophers way outside of the context of journalism
have addressed.
Probably the most widely cited book on this question is Sissela Bok’s
Lying. For Bok (1999), a lie is defined as an “an intentionally deceptive
message in the form of a statement” (p. 15). Philosophy professor Jonathan
Adler (1997) presents the slightly simpler definition of “asserting what
one believes false” (p. 435). Philosopher Arnold Isenberg’s (1964) defini-
tion incorporates the receiver of the message, defining it as “a statement
made by one who does not believe it with the intention that someone else
shall be led to believe it” (p. 466). In the U.S. Supreme Court case U.S. v.
Alvarez (2012) Justice Stephen Breyer defined lies as “false factual state-
ments made with knowledge of their falsity and with the intent that they
be taken as true” (p. 2553).
Common across each of these definitions, as discussed in the previous
section on the journalistic debate, is the concept of intent. It is essential to
have these very specific definitions of what constitutes a lie, especially if
making an argument for legal sanctions against those who perpetrate
them. The difficulty, as discussed above, is establishing intent on the part
of the sender of the message. What further complicates this is the fact that
so much of political deception is not made up of lying per se but other
forms of deception.
One of the more amazing, and perversely interesting, things about
deception in politics in 2016, aside from the difficulty of defining it, was
the way in which it was done so openly, and so brazenly, with little regard
for the consequences, and an almost unabashed willingness to simply pre-
tend like there was nothing wrong with it. Making it particularly problem-
atic was the fact that a lot of the deception was not lying per se but still an
openly deceptive politics practiced with a wink and a smile. In this con-
temporary political world the phrase “post-truth politics” was thrown
around quite a bit. In fact, Oxford Dictionaries named “post-truth” their
international word of the year for 2016 (Wang 2016).
In their announcement, Oxford (2016) defined post-truth as “relating
to or denoting circumstances in which objective facts are less influential in
shaping public opinion than appeals to emotion and personal belief” (para.
1). One of the beauties of the announcement is that Oxford cited data on
the increased use of the word, with a chart and everything, a very anti-
post-truth approach to making your point. While use of the word appar-
ently increased over 2000 percent from 2015 to 2016 (Wang, para. 13), it
is important to note that the term is a few decades old and post-truth
practices are much older than that.
Oxford (2016) cited an article by Steve Tesich (1992) in the Nation as
the first use of the word (para. 6). In that article Tesich laments, in response
to the Iran-Contra affair and the Gulf War, that Americans had collectively
decided to forgo any pretense of a desire for truth, instead, “we, as a free
people, have freely decided that we want to live in some post-truth world”
(p. 13). More than two decades later, this article is still relevant and still
speaks to the present political predicament.
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Moving even further back into history, writing for Newsweek, Andrew
Calcutt argues that the essence of post-truth politics started with the post-
modernist thinkers such as Jean-Francois Lyotard. Calcutt (2016) writes:
More than 30 years ago, academics started to discredit “truth” as one of the
“grand narratives” which clever people could no longer bring themselves to
believe in. Instead of “the truth,” which was to be rejected as naïve and/or
repressive, a new intellectual orthodoxy permitted only “truths”—always
plural, frequently personalized, inevitably relativized. (para. 8)
What is interesting about this style of thought is how it gravitated from

typically left-leaning, postmodernist academics to influence the thinking
and political strategies of the right. For Calcutt, post-truth politics is char-
acterized by a binary. On one side there is the “government by PR” that
was used to sell the Iraq War to the public in the 2003 (para. 17). On the
other side is the dumbing down of governance to “managerialism” (para.
18). Another way of describing this version of post-truth politics is as a
split between (a) politics as a cultural experience; in other words, building
a political philosophy based upon feeling and emotion, which encom-
passes deceptive practices that complicate the legal handling of political
lies, and (b) politics as the management of the government (para. 19).
A man who is one of the best examples of post-truth on the feeling side
is the Republican political consultant Lee Atwater. An infamous figure in
modern American political history, Atwater is the subject of a documen-
tary titled Boogie Man, which just underlines the image he cultivated as
both frightening and powerful. Atwater practiced one of the best-known,
and probably most morally problematic, examples of the post-truth use of
feeling in a way that is dishonest without strictly meeting the definition of
lying: the southern strategy.
For decades the Republican Party employed this approach to winning
political campaigns. Joseph Aistrup (1996) defines it as evolving over the
course of decades from Barry Goldwater, to Richard Nixon, to Ronald
Reagan. Goldwater focused on “strongly ideological, racially motivated,
white conservatives” who advocated “states rights” (p. 5). Through Nixon
and Reagan, this approach to political coalition building in the Republican
Party ramped up and, as Aistrup notes, Reagan was the first candidate to
bring together this coalition in multiple elections and set up the strength
of the 1988 Bush campaign in southern states (pp. 5–6).
Atwater was a key part of all of this throughout many of those years and
up until his death after helping George H.W. Bush win the White House
in 1988. What was most problematic about the southern strategy was its
racial elements and what has come to be known as “dog whistle” politics.
Atwater outlined this approach, more explicitly than his critics could have
ever dreamed, in an interview with political scientist Alexander Lamis. In
that 1981 interview, a recording of which later surfaced confirming
Atwater was actually responsible for the statements, Atwater outlined how
in the 1950s politicians could use explicit racial epithets in campaigning.
However, this had to evolve in the 1960s to more coded language about
states’ rights. This became even more abstract with talk about tax cuts, but
Atwater said that this pushed racial concerns deep into the subtext of the
message and although, “all these things you’re talking about are totally
economic things and a byproduct of them is, blacks get hurt worse than
whites” (Perlstein 2012, para. 2).
This “feelings” aspect of post-truth politics seemed to ramp up even
more with the Trump campaign. An editorial from The Economist (2016)
characterized then-candidate Trump as a man who “appears not to care
whether his words bear any relation to reality, so long as they fire up vot-
ers” (para. 5). Echoing the arguments Tesich made in the Nation in the
early 1990s, the writers at The Economist worried that there was “a strong
case that, in America and elsewhere, there is a shift towards a politics in
which feelings trump facts more freely and with less resistance than used
to be the case” (para. 9). Tesich said decades earlier that American voters
were becoming “prototypes of a people that totalitarian monsters could
only drool about in their dreams” (p. 13). If only he could see the world
in the age of Trump.
On the management side of post-truth the political world could best be
described as some strange offspring of Neil Postman’s Technopoly. In this
form of culture, Postman (1993) argued, there was a “submission of all
forms of cultural life to the sovereignty of technique and technology”
(p. 52). This “is a state of culture. It is also a state of mind” that involves
the “deification of technology” (p. 71). It connects more deeply to the
post-truth culture in that, Postman argued, through the management of
human labor and other aspects of life through an obsession with efficiency
and the idea that “technical calculation is in all respects superior to human
judgment” (p. 51).
Today this management aspect of post-truth culture is present in the
datafication of most every aspect of life, which will only increase through
20 R. N. SPICER
constant technological surveillance and the Internet of Things. In his New

York Times analysis of post-truth politics, William Davies (2016) argues:
We are in the middle of a transition from a society of facts to a society of

data. During this interim, confusion abounds surrounding the exact status
of knowledge and numbers in public life, exacerbating the sense that truth
itself is being abandoned. (para. 15)
There is an important, subtle distinction here, which Davies makes in

another piece for the Guardian, between data and statistics. Data, Davies
(2017) argues, “represents an entirely different type of knowledge, accom-
panied by a new mode of expertise” (para. 39). Where statistics was about
the expert collection and analysis of information about people, data repre-
sents constant collection as a default social setting. With statistics the
researcher started with questions and collected data to analyze it. Today,
Davies argues, “data is captured first and research questions come later”
(para. 38).
Politics in 2016 represents an intersection between the cultural/feeling
experience and the managerial aspect of post-truth culture. The manage-
rial is present in how politicians, and their various constituent groups,
treat truth and honesty in campaigning. Two examples of this really stand
out from the rest. One was Donald Trump’s claim that he would make
Mexico pay for a wall on the U.S./Mexico border. The other, comes from
across the Atlantic Ocean, when the post-truth feelings of the Brexit cam-
paign came to light.
In the United Kingdom, much to the surprise of many political
observers, the public voted for “leave” in the Brexit campaign, meaning
that the UK would no longer be a part of the European Union, ending its
forty-year membership. During the campaign, many of the “leave”
advocates argued that Britain was sending £350 million per week to the
EU and that money should instead be spent on Britain’s universal health
care, the National Health Service (NHS). Just a little more than an hour
after the vote for “leave” had clearly won, one its supporters, Nigel Farage,
admitted on live television that this claim was false. Writing for the
Guardian, Katherine Viner (2016) noted:
It was hardly the first time that politicians had failed to deliver what they
promised, but it might have been the first time they admitted on the morn-
ing after victory that the promises had been false all along. This was the first
major vote in the era of post-truth politics: the listless remain campaign
attempted to fight fantasy with facts, but quickly found that the currency of
fact had been badly debased.
While not being perfectly parallel, British writer Jonathan Coe (2017)
notes in The New York Times that there were some similarities in the feel-
ings that drove the Brexit campaign and Donald Trump to victories in the
UK and U.S. respectively. One similarity was this quick admission that a
key claim was essentially, as Harry Frankfurt would say, bullshit.
Just as Nigel Farage took to television to admit that the claims of the
“leave” campaign were basically just politicking with no real connection to
reality, Newt Gingrich, one of Trump’s key allies during the general elec-
tion, had a moment of truth about one of the most infamous Trump cam-
paign promises. The idea that the United States would build a wall on the
border with Mexico was a central part of his campaign rhetoric, but Trump
compounded that absurdity by saying repeatedly that he would make
Mexico pay for it. Just two days after Trump’s victory Gingrich said in an
interview about Trump’s border security policy, “He’ll spend a lot of time
controlling the border. He may not spend much time trying to get Mexico
to pay for it. But it was a great campaign device” (Stanek 2016, para. 1).
Essentially, what it boils down to is that Newt Gingrich openly stated that
something Trump had made a major part of his campaign was just some-
thing he was saying that felt good, a true post-truth political move.
On the managerial side of post-truth political campaigning there is the
rise of what Davies (2017) refers to as “the new digital elite” (para. 48).
One organization that appears to have had an impact on the 2016 cam-
paign, but with little notice from the general public, was Cambridge
Analytica. According to the Guardian, Trump supporter Robert Mercer
has given financial backing to the company (Murphy 2017). Corporations
such as Cambridge Analytica contribute to the post-truth evolution of cul-
ture and politics through their role in the constant collection of data. This
is especially problematic because, as Davies (2017) argues, “The majority
of us are entirely oblivious to what all this data says about us, either indi-
vidually or collectively” (para. 41). This goes along with another point
Davies makes, the idea that data, as opposed to statistics, has “no fixed scale
of analysis (such as the nation)” (para. 40). In other words, this creates “a
more fluid political age” where it seems national identities, or the notion of
“the nation state as guardian of the public interest” is lost (para. 40). There
are no citizens, just masses of people with multitudes of identities.
22 R. N. SPICER
The post-truth politics debate opens up some important discussions

about how to handle political deception. New technologies speed up the
circulation of so-called “alternative facts,” as Kellyanne Conway called
them (Jaffe 2017). Social media contribute to our bifurcated world lack-
ing a consensus on actual facts. Much of the phenomena around political
deception are natural parts of human communication, but as the post-
truth cultural shift takes hold and technology increases the speed of
change, grappling with the law’s handling of political deception is more
important than ever.
Why Look at Deception Through a Legal Lens?

In the May 26, 2017 edition of Slate’s Political Gabfest, John Dickerson,
the host of the CBS Sunday morning talk show Face the Nation, made an
important point about lying in politics (Bazelon et al. 2017). Two days
before the edition of the podcast was posted, then congressional candidate
Greg Gianforte assaulted a reporter who was asking him a question about
a Congressional Budget Office report (Barbash 2017). Dickerson cri-
tiqued the statement that was issued about the incident and explicitly
characterized that initial statement as a “lie.” He argued that this was
“carefully thought through, total fiction,” which was later disproved by
the audio recording of the incident and the testimony of the witnesses.
Dickerson’s criticism of the incident is important because he makes the
point that there “are many different kinds of deception. This was a straight
up lie. And that seems to me in a number of places … people feel like
that’s easier to do.” He connects the Gianforte incident to another where
a member of Congress was caught on tape making some controversial
statements about Donald Trump’s connections to Russia. Continuing this
distinction between a clear-cut lie and other forms of deception, such as
spin or dissembling, Dickerson goes on to argue: “You should pay a bigger
penalty for a straight up lie.” To this his podcast cohost David Plotz added
that there was no price paid for that congressional member’s lie. It could
be added that, because of the fact that Gianforte went on to win the elec-
tion after assaulting a reporter, aside from being sentenced to public ser-
vice, he paid no political price for the assault, nor did he pay a price for the
lies about it that followed.
From fake news, to the journalistic debate over the label of lie, to the
philosophical disagreement over how stable truth is in politics, looking at
the issues discussed in this first chapter it is easy to see how complex and
important political deception is. The minor, or total lack of, political con-
sequences that Dickerson points out, raises some questions about the pos-
sibility for legal consequences. That possibility then raises questions about
its counterarguments, including fears about infringements on freedom of
speech, the marketplace of ideas as an alternative solution, and the chilling
effect that any legal consequences could have on political speech.
This opening chapter was a brief explanation of a few key points that
establish the nature of the problem of political deception in the most con-
temporary context possible, that of the most recent presidential campaign
and the beginning of the Trump presidency. The first key point is that
deception is a constant presence in politics. Politicians perhaps do not lie
as often as the public perceives them as doing; in fact some research even
shows that many politicians keep their promises once elected (Sulkin
2010). However, even if the actual quantity of deception is lower than
perceived, feelings about it are always present in the public zeitgeist. One
important way this has manifested recently is in concern over fake news.
The second key point is that political deception is not new but it is con-
stantly evolving and this leads to ongoing debates about how to handle it
in contexts such as media coverage of a political campaign. Third, there
are many different forms of deception. Not every false statement is a lie
and deception needs to be understood with some nuance. Finally, and
most important for this book, is the ongoing conundrum of how the law
handles, and how it should handle, acts of political deception.
This book answers that last question in three chapters. Chapter 2 is an
examination of various statutes around the U.S. It creates a typology of
laws, explaining the variety of types of deception that are regulated and
how they are addressed. Chapter 3 looks at how the American court sys-
tem has handled cases involving political deception. This takes cases mostly
from the mid-twentieth century and into the early twenty-first century.
Chapter 4 is set aside to discuss three specific, recent cases that stand out
from the rest, especially U.S. v. Alvarez (2012). This chapter argues that
these three cases, along with some of the cases from Chap. 3, create prec-
edents that will make it difficult for much of the legislation in Chap. 2 to
withstand constitutional challenge. Chapter 5 concludes with arguments
about the importance of thinking about legal issues surrounding political
deception and the future of the problem.
24 R. N. SPICER
Note
1. There was an ongoing debate about whether Donald Trump’s behavior
constituted what could be labeled as “authoritarian.” Before the 2016
Republican Party presidential primary was even completed, University of
Massachusetts political scientist Matthew McWilliams (2016) made the
argument that the classic “authoritarian personality” was the best predictor
of whether a voter would be a Trump supporter. Wendy Rahn and Eric
Oliver (2016) writing for The Washington Post countered that Trump’s vot-
ers were actually more populist than authoritarian. This debate about the
threat of Trump’s authoritarian tendencies carried over from the campaign
into his presidency with some, such as The New Republic’s Brian Beutler
(2017), arguing that Trump’s hinting at the possibility of firing special
counsel Robert Mueller who was, as of this writing, investigating Russia’s
interference in the 2016 election and the possibility of collusion with the
Trump campaign, was an indication of such tendencies.
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sarah-sanders
CHAPTER 2
Conduct, Affiliation, and Messages:

A Typology of Statutes Addressing Political
Deception
…incumbents, challengers, voters, and the political process will benefit

from vigorous political debate that is not made with actual malice and
is not defamatory.
Washington RCW § 42.17A.335 (2009)
Abstract The second chapter of this project is an exploration of the stat-

utes around the nation that address political deception. It is broken into
three sections, which will explain the definition of the categories for the
statutes and how some of the examples, found in the Appendix, fit into
each one. This will be followed by a discussion of the constitutionality of
these statutes. There will also be a brief discussion of punishments for
political deception. The chapter concludes with an argument that while
strong First Amendment protection of political speech is important, the
legal arguments against these statutes creates a different set of problems.
Keywords Lying • U.S. Supreme Court • Freedom of speech • First

Amendment • Campaign law • Political communication research •
Legal research • Campaign codes • Political communication law •
Media law

https://doi.org/10.1007/978-3-319-69820-5_2
34 R. N. SPICER
Introduction1
Deception, whether through purposeful lies or subtle acts of disinforma-
tion, is a commonly used political tool and a problem in public life. Its
presence in politics, and in life in general, opens it up to a variety of angles
of analysis. Lying has received attention in the realms of philosophy
(Mahon 2007), communication (Newman et al. 2003; Blum 2005;
Stockdale 2005), international relations (Mearsheimer 2011), political
media (de Vreese 2005; Brants et al. 2010), politics in general (Beahrs
1996; Carmola 2003; Kellner 2005; Huang 2010), and the law (Simon
1998; Castleman 2004).
It is important to pursue such analyses first and foremost because, as
Sissela Bok (1999) argues, “no moral choices are more common or more
troubling than those which have to do with deception in its many guises”
(p. xxxi). The importance of this discussion is compounded by the legal
discourse of the marketplace of ideas, the argument that political culture is
best left unfettered and that, even if there is some ugliness and deception
in public life, these unfortunate byproducts will be weeded out by debate.
In other words, the best cure for bad speech is not regulation but rather
more and better speech to counter the bad. This hands-off approach is
best described by U.S. Supreme Court Justice Hugo Black’s argument in
New York Times v. Sullivan (1964) that, “An unconditional right to say
what one pleases about public affairs is … the minimum guarantee of the
First Amendment” (p. 297). While the Court has said false and erroneous
speech on its own has no value and enjoys no First Amendment protection
from government proscription (Garrison v Louisiana 1964, p. 75), Black
conversely argues that such speech not only is protected but that govern-
ment intervention to stop it is a far greater danger than the speech that
deceives the public and/or does reputational harm to its target.
This chapter examines statutes whose authors would at least appear to
disagree with Justice Black. The election codes of all fifty states were ana-
lyzed to look for statutes that address acts of campaign deception in some
form. This analysis was used to create a typology of statutes leading to
three categories based on how they regulate political deception: (1) elec-
tion conduct statutes, (2) affiliation statutes, and (3) campaign message
statutes. The statutes discussed in this chapter are all contained in the
Appendix. They are listed in alphabetical order by state with the statute
numbers, their legislative titles, the actions they each address, the
punishment for violation of each statute, and the category they each fall
under in the typology.
CONDUCT, AFFILIATION, AND MESSAGES: A TYPOLOGY OF STATUTES… 35
This analysis found that there are forty-four statutes in thirty-four states
that fall into one of the three categories of this typology. When the statutes
are broken into subsections they amount to fifty-five distinct statutory
restrictions on political deception around the nation. Seven of these regula-
tions fall under the affiliation category, thirteen are election conduct stat-
utes, and the campaign message category is the largest with thirty-five
entries. The third category is broken into four sub-categories. There are five
false incumbency statutes. Fifteen of the statutes address the dissemination
of false information about a candidate. Six deal with the dissemination of
false information about issues on things like ballot initiatives or petitions.
The fourth category, which contains nine examples, is made up of those that
combine false information about candidates and issues into a single statute.
Two kinds of common statutes were excluded from this analysis. The
first are those that ban voter fraud by false identity. For example, some stat-
utes make it illegal to pretend to be another person in order to vote more
than once. The second commonly banned practice is any fraud committed
by the campaign against the state. This would be something like filing a
campaign finance report containing false information. This typology is
about statutes that address how political actors might attempt to deceive
the public. These two excluded types of statutes involve deceptive practices
but they are the practices of voters and campaigns deceiving the state.
The next three sections of the chapter address each of the categories.
These sections will explain the definition of the categories and how some
of the examples, found in the Appendix, fit into each one. This will be fol-
lowed by a discussion of the constitutionality of these statutes. The ques-
tion of constitutionality is especially important in light of the U.S. Supreme
Court’s decision in U.S. v. Alvarez (2012), which will be briefly discussed
in this chapter and given greater depth of analysis later in the book. There
will also be a brief discussion of punishments for political deception. The
chapter concludes with an argument that while strong First Amendment
protection of political speech is important, the legal arguments against
these statutes creates a different set of problems.
Election Conduct Statutes

The first group of statutes restricts citizens from engaging in some form of
deception that would interfere with the clear and compelling government
interest in the fair and efficient conduct of elections. Legal scholar Richard
Hasen (2013) argues that a law restricting speech that interferes with such
36 R. N. SPICER
conduct has the “strongest case for constitutionality” if it is narrowly

drawn (p. 71). Examples of such speech would be that which either (a)
interferes with the fair and efficient execution of the governmental func-
tion of holding an election and/or (b) disenfranchises an individual or
group of the right to vote. Some of these statutes describe such deceptions
as potentially occurring through the creation and dissemination of facsimi-
les of ballots that include false information intended to mislead voters. A
violation might include when political actors impersonate government
agents through speech or misappropriation of, or creating facsimiles of,
government documents.
For example, the state of Arizona makes it illegal to mail false informa-
tion about an election on documents forged to give the appearance the
state government created them (Deceptive mailings 1998). Louisiana has
a similar but more specific statute that makes it illegal to mail a facsimile of
a ballot in which the candidates are designated with incorrect ballot num-
bers. So if a Democratic campaign wanted to deceive Republican voters
into accidentally voting for a Democrat, it might mail to registered
Republicans ballot facsimiles on which the ballot number printed next to
the Republican candidate is actually the ballot number for the Democratic
candidate, thus potentially inducing those voters to erroneously vote for
the Democrat.2
While Arizona’s statute is about only forged government documents
and Louisiana’s statute makes it illegal to lead a voter to cast a legal ballot
for the wrong candidate, Missouri addresses deception that would lead
voters to cast ballots that would be eliminated for not meeting legal stan-
dards. The text of § 115.631(7) bans the practice of “furnishing any voter
with a false or fraudulent or bogus ballot” (Election authorities and con-
duct of elections 2012). Wyoming similarly addresses the “bogus ballot”
problem but also makes it illegal to falsify voting instructions (Falsifying
election documents n.d.).
Tactics that might be prohibited by such statutes have been put into
practice as shown in reports from Common Cause, a non-partisan, non-
profit political advocacy organization focused on empowering public
political participation. For example, in one Pennsylvania township in
2008, some voters received a letter bearing the township seal and inform-
ing them that, due to expected high turnout on Election Day, Republicans
should vote on Tuesday and Democrats should vote on Wednesday
(Common Cause n.d.-a, p. 3). Since elections are always held on Tuesdays,
this letter was likely intended to depress Democratic voter turnout by
sending registered Democrats to the polls the day after the election. In
another report examining ten swing states, Common Cause (n.d.-b)
found similar practices happening in the form of “flyers, mailers and
increasingly robo-calls” (p. 4). In that report the organization found at
the time only one of the ten swing states, Missouri, had a deceptive prac-
tices law in place to address such problems (p. 4).
California’s statute is a twist on this category: The speech that is regu-
lated is speech made to the public via the state. Under California Election
Code § 13307, candidates may provide a statement of no more than 200
words describing their qualifications for holding the position for which
they are running. Under § 13307(4)(b), each voter is sent a copy of a
sample ballot along with a voter’s pamphlet containing these candidate
statements. California Election Code § 18351 (n.d.) makes it illegal to
make “a false statement of a material fact in a candidate’s statement.” In
past cases courts have knocked down statutes that criminalize false state-
ments made by politicians to the public (Minnesota v. Jude 1996; Rickert
2007; Garrison 1964). This California statute might be a little more dif-
ficult to challenge because it does not simply address a statement made
directly from a candidate to the voters. It is a statement a candidate makes
on a government document, which is filed with election officials, and is
used by the state to help inform voters and improve the conduct of the
election. Lying in such a statement should be seen as fraud equivalent to
falsifying campaign finance documents. This statute does not regulate false
statements on their own; it regulates false statements made in tandem with
falsifying government documents that will be disseminated to the public.
Thus, this statute would probably withstand constitutional scrutiny.
Affiliation Statutes
Seven of the fifty-five statutes in the typology are categorized as affiliation
statutes. They address how political actors might engage in deceptive prac-
tices in order to become involved with a campaign. This category breaks
into two sub-categories based upon how each law defines and thus
regulates the problem of affiliation. Four of the statutes—from Alabama,
Kansas, Louisiana, and New Hampshire—regulate affiliation as an external
problem. That is, it is illegal to misrepresent yourself as speaking on behalf
of a campaign with which you have no affiliation. New Hampshire’s stat-
ute is actually somewhat amusing. It makes it illegal to make a phone call
in which one pretends to be one of the candidate’s running in the election.
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In other words, if some smart aleck in New Hampshire does good voice
impersonations of political candidates, that person better stay off the
phone. They could be risking a hefty fine and/or prison time.
The other three statutes, two of which are from Ohio with the third
coming from Texas, regulate affiliation as an internal campaign problem.
These statutes make it illegal to gain employment or volunteer with a cam-
paign with the intention of impeding its progress. The two Ohio statutes,
§ 3517.21 and § 3517.22, deal respectively with infiltrating a campaign
for a candidate running for office and an advocacy campaign. The Texas
statute makes it illegal to present fake documents of affiliation in order to
participate in a political party event.
The external and internal affiliation statutes address two kinds of
affiliation-related deception. In external-affiliation deception, one need
not have any contact with the campaign in question. For example, a politi-
cal actor could go door-to-door, talking to voters while pretending to be
affiliated with an opponent’s campaign and spreading lies about that
opponent. This deceit would not require the political actor to have any
contact with that campaign; the deception would be perpetrated against
the public. On the other hand, internal affiliation deception is perpetrated
against the public and the campaign. A political actor volunteering for a
campaign and then sabotaging it is an example. The subterfuge could be
internal, harming the campaign without contact with the public; or it
could use the campaign’s resources to send false information to the public,
thus deceiving both the campaign and the voters.3 In these scenarios,
there are two potential and simultaneous groups of victims.
Campaign Message Statutes

Thirty-five of the fifty-five statutes address the truth or falsity of messages
disseminated from campaigns to the public. This third category of statutes
can be broken into four sub-categories based upon the actions addressed:
(a) false information about a candidate, (b) false information about an
issue, (c) false information about a candidate or an issue, and (d) false
statements of incumbency. Sub-categories (a) and (b) reflect the fact that
some statutes recognize a difference between false information about a
person and false information about the potential effects of a ballot initia-
tive. Category (c) is necessary because some of these statutes combine
both offenses of (a) and (b) into a single statute. These statutes regulate
deception in a variety of ways, and while there is some overlap, there is
variation in how each one functions, the actions they address, and how
they address them. While there is a variety of regulated behaviors with dif-
ferent punishments, they are all directed at the same problem; they all, in
one way or another, make it illegal to deceive voters in order to induce
them to vote in a certain way, whether that vote is cast for a candidate or
a ballot initiative.
Four statutes that stand out are Connecticut Sec. 9-368c, Idaho
§ 34-1714(d), Oregon § 260.555, and Wyoming § 22-24-125(c). What
makes them unusual is that, where the other statutes on the list address the
problem of deceiving the voters in persuading them to vote a certain way,
Connecticut, Idaho, Oregon, and Wyoming make it illegal to lie about a
ballot initiative or recall petition to induce a voter to sign it. So the distinc-
tion is the timing of the falsehood. Violators of these statutes have timed
their disinformation or misinformation to be employed in order to get
their issue before the public.
These three sub-categories also make it important to distinguish
between false statements about an issue and those made about a person.
In his concurrence in the Washington Supreme Court’s decision in
Washington v. 119 Vote No! Committee (1998), Justice Phil Talmadge
makes just such a distinction. Candidates who are the target of false speech
have a variety of avenues for attempting to remedy the problem. They can
use the court system through a defamation lawsuit when warranted, they
can wait until the next election to run again and clear their name in the
debate of that campaign, and those who live in Washington State can—
under the state constitution, Article II, Section 8—even ask the legislature
to not seat their opponent on the grounds that the dishonesty of the cam-
paign disqualifies them from holding office. Conversely, Talmadge argues,
a ballot measure “enacted on the basis of a campaign of lies” has little
chance of being overturned by the necessary two-thirds majority of the
legislature (p. 708).
In a way, the speech surrounding a ballot measure needs even greater
protection from the abuses of falsehoods than speech for or against the
election of a candidate. An elected official holds office for a limited period
of time. They will have to stand before constituents and ask for re-election.
A ballot measure that passes on the basis of intentional falsehoods, or even
just sincerely believed misperceptions, might have more lasting and dam-
aging effects on a community. It is generally more difficult to overturn a
ballot initiative passed through disinformation and misinformation than it
is to remove a lying politician from office, which is also a pretty tall order.
40 R. N. SPICER
Washington State’s statute is broken into three sections, all of which

address campaign messages about a candidate. They make it a misde-
meanor to defame a candidate, make a false statement of incumbency, or
to falsely claim that a candidate received an endorsement. These are all
speech-related statutes. Ohio takes a different approach to the issue by not
only addressing false incumbency but also a whole list of other things
about which a candidate or surrogate might deceive the public. Ohio
§ 3517.21 addresses, among other things, false statements about the can-
didate’s qualifications, military service, and mental health (Infiltration of
campaign 1995).
Ohio also presents an interesting problem for the distinction between
candidate-related and issue-related deception. Both Ohio statutes,
§ 3517.21 and § 3517.22, use the phrase “reckless disregard” to describe
the offenses being addressed. They describe false speech in an election or
issue campaign, respectively, in almost identical language, to be any false
statement a person might “post, publish, circulate, distribute, or other-
wise disseminate” during a campaign for a candidate or issue “knowingly
and with intent to affect the outcome of such campaign.” Both statutes
have subsections making it illegal to make such a false statement, “either
knowing the same to be false or acting with reckless disregard of whether
it was false or not.”
The fourth category, false incumbency, includes five statutes. They
make it illegal for a candidate to falsely hold himself or herself out to the
public as the incumbent running for re-election. On its face, this would
seem a reasonable thing to regulate, something easily proven dealing with
a narrowly drawn restriction. If John Smith is the congressman from the
16th District of California who is running for re-election, he can call him-
self the incumbent. If Mary Wilson is his challenger, she cannot. It would
be quite difficult to reasonably argue in a courtroom that Wilson mistak-
enly thought of herself as the incumbent, that somehow in error she
thought she was already a member of Congress when she was not. The
rationale behind such a statute is to prevent candidates from giving the
public a false impression of their level of experience.
The case of Lostracco v. Fox (1986) gives a perfect example of one such
statute as it was applied and how a court responded when the statute was
challenged. In Lostracco a candidate was found to have violated Michigan
§ 168.944 (False designation of incumbency 1997) in a 1984 election for
circuit judge in Shiawassee County. Lostracco accused Fox’s campaign of
circulating materials giving the false impression Fox was the incumbent
judge, which was in direct violation of § 168.944. The court found Fox’s
materials “as a matter of law” were “misleading to the electorate in that
the language used therein [did] give the impression that Defendant Fox
[was] an incumbent Circuit Court Judge when in fact he [was] not”
(p. 620). An important point here is the court’s holding that this was a
false statement of fact, reiterating the point above, that it can be proved
that someone either is or is not an incumbent. The Lostracco case also
demonstrates that there is legitimate value in preventing someone who is
not an incumbent from using the term to deceive the voters. The court
said the harm to Lostracco in lost votes would be “irreparable and perma-
nent” and infringed upon his “right to seek office in a fair election”
(p. 621).
Interestingly, the court also ordered Lostracco, “shall not make use of
this Order in any paid political advertisement during this campaign”
(p. 620). In other words, while the court was applying a statute that lim-
ited Fox’s speech, it also handed down a decision ordering Lostracco not
to attempt to use the court’s decision as part of potential campaign attacks
against Fox. In making this decision, the court held, “the right of freedom
of speech or expression is not unlimited” (p. 622). It also made the point,
citing Garrison v. Louisiana (1964), an important case involving freedom
of speech and judicial campaign discourse that will be covered in the next
section, that “knowingly false statements and the false statements made
with the reckless disregard of the truth, do not enjoy constitutional pro-
tection” (p. 623).
The Constitutionality of Statutes

Social theorist and philosopher Brian Massumi (2002) says, “Sensation is
the registering of the multiplicity of potential connections in the singular-
ity of a connection actually under way” (pp. 92–93). In other words,
within every actuality are potential alternatives felt as background noise.
You might be living one experience but there is a multiplicity of potential
alternatives in the back of your mind, they are felt alongside your lived
reality. As it is true in the human body it is also true in the body politic.
Legal debates are filled with “potentials.” In the verbal sparring of justices
and lawyers are felt many of the potential outcomes of a decision. A legal
argument is the working out of those potentials, the mapping of out-
comes, in which speculation is a legal tool for deciding how best to man-
age a political system. The procedure asks the participants to travel down
42 R. N. SPICER
the streets and narrow alleyways of political debate, to attempt to see a

potential wrong turn or an assailant in waiting. Legal discourse is a process
of asking, what could go wrong?
The central potential “going wrong” in United States v. Alvarez is the
idea of giving the government the power to decide what is true and what
is false and to then punish falsity. The U.S. Supreme Court evokes
“Oceania’s Ministry of Truth,” eliciting the inevitable emotional response
that comes from the mere mention of George Orwell. The Court argues,
“Permitting the government to declare [lying about military service] to be
a criminal offense … would endorse government authority to compile a
list of subjects about which false statements are punishable” (p. 2547). A
potential Orwellian dystopia is hinted at in the background of this legal
argument.
The Alvarez case involves a small-time politician in California named
Xavier Alvarez who claimed to have military experience and honors he did
not actually earn. He made demonstrably false statements. The courts in
this case, the Ninth Circuit and the U.S. Supreme Court, recognized
Alvarez’s statements as “fabrications” (U.S. v. Alvarez 2010, p. 1201) and
“intended, undoubted lie[s]” (U.S. v. Alvarez 2012, p. 2542). Alvarez was
found to have violated Section (b) of the Stolen Valor Act, a federal law
that made it illegal for individuals to take credit for military awards they
did not earn, with Section (b) specifically addressing the Medal of Honor.
Alvarez made a motion to dismiss on the grounds that the law was uncon-
stitutional “both on its face and as it applied to him” (U.S. v. Alvarez
2010, p. 1201). The Ninth U.S. Circuit Court of Appeals agreed, over-
turning his conviction and finding Section (b) of the Stolen Valor Act to
be unconstitutional. The federal government appealed to the U.S. Supreme
Court and the Court upheld the Ninth Circuit’s decision. Consequently,
Richard Hasen (2013) argues in the Montana Law Review, the case has
created “a regime in which broad laws targeting false speech stand little
chance of being upheld regardless of the topic” (p. 69). Thus the consti-
tutionality of the statutes discussed in this chapter must be addressed in
the context of the Alvarez decision.
This first category of statutes, election conduct statutes, is likely to be
the most resistant to constitutional challenge for a few reasons. First, the
U.S. Supreme Court has recognized the government’s ability to efficiently
conduct an election as a compelling interest for upholding a law that
passes strict scrutiny (Burson 1992). Speech that interferes with this func-
tion would be Hasen’s example of a message telling voters, “Republicans
vote on Tuesday, Democrats vote on Wednesday” (p. 71). Despite his

argument that Alvarez creates a significant roadblock for false speech leg-
islation, he argues that the states “should have the power to criminalize
such speech” (p. 71).
The first category should also be upheld on the grounds that such laws
protect the legitimacy of the government and public communiqués from
that government. Allowing the fraudulent use of government insignia
under the First Amendment could potentially cast a shadow of illegitimacy
over all government communication. The plurality in Alvarez (2012)
note, “there are statutes that prohibit falsely representing that one is
speaking on behalf of the government, or prohibit impersonating a gov-
ernment officer” (p. 2546). They held that their decision in Alvarez did
not apply to such laws.
The third reason the statutes in the first category should withstand
constitutional scrutiny even in light of Alvarez is that they do not restrict
falsehood alone, but falsehood in combination with some other social ills:
fraud and impersonation of a government official and disenfranchisement
of voters. The Court’s holding in Alvarez “rejects the notion that false
speech should be in a general category that is presumptively unprotected”
(pp. 2546–2547). Such false speech must be combined with some other
social ill in order to be restricted. The statutes in the election conduct
category meet this standard.
The second category of affiliation statutes could go either way on the
question of constitutionality. Some such statutes are not aimed at false
speech alone but false speech combined with fraud used for personal gain.
For example, Hasen (2013) uses the hypothetical scenario of a person
pretending to represent a political party or campaign and soliciting dona-
tions for said party or campaign (p. 71). Such a law, Hasen argues, “seems
well within the type of anti-financial fraud law that it appears all on the
[Supreme] Court accept as constitutionally permissible” (p. 71). This is
exemplified in the case of Michigan v. Dewald (2005), in which the defen-
dant Jerome Dewald pretended to be affiliated with both the Bush and
Gore presidential campaigns during the 2000 presidential race in order to
solicit money from donors. Dewald was found guilty of violating the
Michigan false pretenses statute, MCL § 750.218(4)(a), by holding him-
self out as affiliated with the Gore and Bush campaigns in order to solicit
donations. Similar actions in New Hampshire could easily fall under a false
affiliation statute.
44 R. N. SPICER
Affiliation can also be a matter of infiltration, as addressed in the Ohio

statutes § 3517.21 and § 3517.22. Here the deceptive speech is combined
with an act of fraud perpetrated against a potential employer (e.g. some-
one lies in order to get a job with a campaign so they may sabotage that
campaign). Such an infiltration could follow the precedent set by Food
Lion v. Capital Cities/ABC (1999), where two reporters concealed their
identities in order to infiltrate and report on unsanitary practices at a Food
Lion grocery store. The court in that case upheld the reporters’ First
Amendment rights to report on Food Lion’s conduct but also held that
the reporters, by applying for a job and then sharing information in this
manner, had “breached their duty of loyalty” and “committed a trespass”
(p. 524).
However, one could also imagine a situation where an affiliation statute
would be on constitutionally shaky ground. What if this false affiliation
speech were not combined with financial fraud but was just deceptive
speech alone? Consider the hypothetical scenario of a Democratic activist
going door-to-door posing as a Republican, saying repulsive and false
things about the Republican Party platform, in order to deceive voters
into supporting the Democratic Party. They could knock on the door and
say, “Hi. I’m with the local Republican Party and we’re urging voters to
support our puppy-kicking agenda. We need to start kicking more puppies
in this town.” This would be illegal in Alabama, Kansas, Louisiana, and
New Hampshire, assuming the local Republican Party was in fact opposed
to kicking puppies. Yet, given the Alvarez decision it is easy to imagine a
court striking down a law that is aimed at a clear act of deception. If the
legitimacy of military awards does not require First Amendment protec-
tion, as Justice Samuel Alito laments in his Alvarez dissent, and can be
saved by counterspeech, then surely the legitimacy of someone’s affiliation
with one political party or another does not require the protection of the
law. Voters will discuss the accusations made by this hypothetical activist,
compare notes, do a little digging and figure out that these are the lies of
an activist intended to tarnish his opponent’s party. From there it is only a
short step to the Republican Party issuing statements calling out the fraud
and setting the record straight. At least that is how the idealists, and the
U.S. Supreme Court’s plurality in Alvarez, imagine it happening.
Campaign message statutes will probably be the most difficult to defend
under the Alvarez legal regime. Each of the four sub-categories here would
be treated differently. Handling the “false information about a candidate”
category would depend upon the wording of the legislation. It would have
to meet the actual malice standard set by New York Times v. Sullivan
(1964). Even then it would likely be difficult to win a case against a critic
making false and defamatory statements about a candidate. One also might
argue that, given the existence of defamation laws in general, such a statute
is not only constitutionally problematic but also redundant.
In 2014, the U.S. District Court for the Southern District of Ohio
found Ohio statute § 3517.21(9) and (10) to be unconstitutional. In the
case of Susan B. Anthony List v. Driehaus (2014), Steven Driehaus was an
Ohio congressman who claimed he was defamed by SBAL. SBAL dissemi-
nated campaign materials stating that Driehaus had voted for taxpayer-
funded abortions because he voted for the Patient Protection and
Affordable Care Act (PPACA). Driehaus argued that this was false, stating
the PPACA contained no such provision. SBAL challenged the constitu-
tionality of § 3517.21(9) and (10) and the court agreed with them.
However, as of this writing the statutes are still currently on the books.
There is possibly a greater constitutional problem with the issue-based
statutes than with the candidate statutes. While candidate statutes might
withstand constitutional scrutiny through the actual malice standard, fal-
sity in issue campaigns do no reputational harm to any individual; there is
no defamation in those statements and this fact has proved problematic for
such laws. The third category of statutes, which combine false statements
about candidates and issues, would likely be seen as problematic for the
same reason.
The basic argument of Washington v. 119 Vote No! Committee (1998)
case, which overturned a Washington statute banning false statements of
material fact made with actual malice, was that while the state relied on the
actual malice standard they attempted to apply it to the protection of ideas
rather than to that of a person’s reputation. The court found this to be a
misplaced application of defamation law (pp. 697–698). In her concur-
rence, Justice Barbara Madsen held there was a governmental interest in
protecting reputations but that political debate, even if it contains false-
hoods, should be protected from state restrictions and, calling on the
marketplace-of-ideas argument, said voters “are able to make an informed
choice based upon freely advanced competing ideas … and can compare
what they hear and read with the text of a proposed measure”
(pp. 700–701).
Finally, the false incumbency statutes are likely to be taken down by the
Alvarez precedent. The Alvarez court held that the truth about military
honors could easily be protected by a database where any citizen could go
46 R. N. SPICER
to look up who has won the Medal of Honor (p. 2551). There is no need
for a law banning such speech; the solution is for citizens to look up any
suspicious individual claiming to have been awarded such an honor. If the
Court feels that such a high military honor can be protected in this way,
despite the decision in the Lostracco case, they will likely see incumbency
as being equally protected by citizen research.
One last point to discuss is how these statutes punish political decep-
tion. Five of these statutes stand out from the rest on this point. Most of
the statutes either punish falsehoods with fines and/or incarceration, or
treat the situation as a civil dispute where one party sues another or asks a
court for an injunction to prevent the further use of a certain phrase in
campaign materials. Five of the states are different in that, if a candidate is
found in violation of their statute, they can be removed from office or
prevented from holding office.
For example, Washington § 42.17A.750 states if there is any violation
of Chapter 42 of the state’s election code, an election “may be held void
and a special election held” in order to “protect the right of the electorate
to an informed and knowledgeable vote” (Civil remedies and sanctions
2013). Alaska, Florida, North Dakota, and Oregon have similar stipula-
tions denying a violator of election law the office to which they were
elected or even impeaching the governor or lieutenant governor on these
grounds. Removal from office for violation of these statutes demonstrates
the importance of electoral integrity and the legitimacy of the power to
govern being based upon the legitimacy of the election.
The form of punishment is just one way to classify political deception
laws. This, along with the language of the law, will alter what it does and
the range of activities to which it can be applied. The law can address one
candidate or campaign lying about another candidate or campaign. It can
be about the campaign lying about an issue. This is different from a can-
didate lying about the character of his opponent, making a personal attack,
which is clearly not the same as making a false statement about the oppo-
nent’s position on an issue or the facts surrounding the issue itself. Here it
is important to acknowledge the difference between arguing that a person
is a “bad” person as opposed to arguing that an idea is a “bad” idea.
Conclusion
The problem the laws discussed in this chapter face is that, while they all
serve a noble purpose, protecting the public from fraudulent acts in the
conduct of campaigns, these laws are also at odds with a First Amendment
legal regime that prevents nearly any prohibition on speech, even speech
that has clear, socially detrimental effects. Hate speech, obscenities, pur-
poseful deception, and accidental misleading statements have all at one
time or another had their day in court and, to a certain extent, won the
protection of the First Amendment. It is difficult to defend the constitu-
tionality of truth-in-politics laws in the face of First Amendment
absolutism.
Even though strong First Amendment protection for political speech is
socially and politically valuable, there is also something depressing about
attaching such a virtuous protection to speech acts so lacking in virtue. At
the heart of this lack of virtue is a question of electoral integrity. Of the
fifty-five statutes contained in the Appendix, three contain some textual
reference to this concept. Alaska makes it illegal to make a political state-
ment if “the result of the statement places the integrity of the election
process in substantial doubt” (False Statements in Telephone Polling n.d.,
para. 2). The Louisiana statute attempts to “assure that elections are held
in a fair and ethical manner” (Political Material; ethics; prohibitions 2011).
The statute begins with a paragraph about the state interest in protecting
the ethics and fairness of having an informed electorate and cites the value
of a voter’s ability to evaluate the person or group responsible for a politi-
cal message. Finally, in a footnote, the Washington State truth-in-political-
advertising statute states, “the political process will benefit from vigorous
debate that is not made with actual malice and is not defamatory” (Political
advertising or electioneering communication 2009). Another footnote
states that defamatory statements made about candidates “damage the
integrity of elections” (Political advertising or electioneering communica-
tion 2009). It goes on to argue that the quality of political discourse and
the faith of the electorate in the political system are undermined by such
forms of speech.
There is something valuable in a statute in which the concept of elec-
toral integrity is alluded to in the actual text of the law. The majority of the
statutes in the Appendix simply state the action that is being regulated.
These three statutes, from Alaska, Louisiana, and Washington, make it a
point to say that the state takes seriously the integrity of its political system.
48 R. N. SPICER
The problem with the First Amendment protection of political deception

is that in the interest of protecting the integrity of free speech we lose
something of the integrity of the system under which that speech is exer-
cised. Something is lost, perhaps a sense of decency, or faith in the political
process and system of governance, when the Constitution is used to pro-
tect a cloud of deception that rests over the process that elects those who
swear an oath to protect that very Constitution.
In some cases, as it applies to political deception, this line of legal phi-
losophy can be not only problematic in practice but also intellectually dis-
honest. There is an inherent and obvious contradiction in extending First
Amendment protection to political deception in the name of freedom. It
is a contradiction so glaring that it is almost offensive that it is not acknowl-
edged in the legal arguments in cases from the last three decades in par-
ticular. The courts and plaintiffs, such as SBAL in Ohio, have argued that
the government should not be given the power to declare a statement to
be true or false, that such power only gives us Oceania’s Ministry of Truth.
The problem is that these arguments, while expanding the speech rights of
individuals to include deceptive practices, extend those same rights to the
government. In the end, the regime of protection over deceptive practices
created by Minnesota v. Jude (1996), Washington v. 119 Vote No! Committee
(1998), Rickert v. State of Washington Public Disclosure Committee (2007),
and solidified by Alvarez, only gives us Oceania’s Ministry of Lies.
There is either an intellectual dishonesty or a naiveté in the inability to
acknowledge the power of deception that is extended to the government
here. The power to take the nation to war under false pretenses, to deceive
about the effects health care reform will have on citizens’ current plans, to
repeatedly deceive about any number of things, across a range of political
concerns both major and minor, with impunity, with no legal repercus-
sions and in many cases no political repercussions; these are the conse-
quences of the arguments against the laws discussed in this chapter. In the
legal scramble to protect individual liberty these arguments have failed to
see an assailant in waiting, they have failed to sense the potentiality of a
problem. They have helped to solidify another grave threat to individual
liberty: the threat of the government’s ability to lie to us.
This is not to argue that truth-in-politics laws are absolutely necessary,
or that they are the best possible solution to the problem of political
deception, or that they do not have their own sets of problems. It is merely
to argue that the lack of acknowledgment of the problems of doing away
with them is a serious flaw in the arguments for their repeal. Government
declarations of truth and falsity, and restrictions on speech are certainly an

infringement on freedom. However, one is also not truly free from an
overly powerful government if that government is given the legally sanc-
tioned power to freely deceive on any and all matters.
Notes
1. A version of this chapter was presented as a conference paper at the Broadcast
Education Association conference in Las Vegas in April 2016. It was awarded
second place in the debut paper category in the Law & Policy division.
2. Not all states have ballot numbers next to candidate names. The most infa-
mous example of this, just to illustrate the point, would be the state of
Florida in the 2000 presidential election. In that election the candidate
names and ballot numbers were aligned awkwardly. Democrat Al Gore was
number five on the ballot and Reform Party candidate Pat Buchanan was
number four. However, due to the strange alignment of the numbers and
names, some voters intended to vote for Gore but accidentally voted for
Buchanan.
3. An example of this would be the story of when Karl Rove, campaign man-
ager for President George W. Bush’s two successful presidential runs, pre-
tended to be a volunteer for a Democratic candidate for state treasurer in
Illinois in 1970. He allegedly stole letterhead from the Democrat’s cam-
paign and printed flyers advertising a party at the campaign headquarters
promising “free beer, free food, girls and a good time for nothing” (Cannon
et al. 2003, p. 10).
References
Beahrs, J. (1996). Ritual deception: A window to the hidden determinants of
human politics. Politics and the Life Sciences, 15(1), 3–12.
Blum, S. (2005). Five approaches to explaining “truth” and “deception” in human
communication. Journal of Anthropological Research, 61(3), 289–315.
Brants, K., de Vreese, C., Moller, J., & Van Praag, P. (2010). The real spiral of
cynicism? Symbiosis and mistrust between politicians and journalists. The
International Journal of Press/Politics, 15(1), 25–40.
Burson v. Freeman, 540 U.S. 191 (1992)
California Election Code § 18351 (n.d.)
Cannon, C., Dubose, L., & Reid, J. (2003). Boy genius: The architect of George
W. Bush’s remarkable political triumphs. New York: Public Affairs.
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Carmola, K. (2003). Noble lying: Justice and intergenerational tension in Plato’s

“Republic”. Political Theory, 31(1), 39–62.
Castleman, D. (2004). Has the law made liars of us all? Wake Forest University
Legal Studies, Paper No. 04-11.
Civil remedies and sanctions, Washington § 42.17A.750 (2013)
Common Cause. (n.d.-a). Deceptive practices 2.0: Legal and policy responses.
Common Cause. (n.d.-b). Voting in 2008: Ten swing states. A report from the
Common Cause Education Fund.
Deceptive mailings, Arizona § 16-925 (1998)
De Vreese, C. (2005). The spiral of cynicism reconsidered. European Journal of
Communication, 20(3), 283–301.
Election authorities and conduct of elections, Missouri § 115.631 (2012)
False designation of incumbency, Michigan § 168.944 (1997)
False Statements in Telephone Polling, Alaska § 15.13.095 (n.d.)
Falsifying election documents, Wyoming § 22-26-107 (n.d.)
Food Lion v. Capitol Cities/ABC, 194 F. 3d 505 (1999)
Garrison v. Louisiana, 379 U.S. 64 (1964)
Hasen, R. (2013). A constitutional right to lie in campaigns and elections?
Montana Law Review, 74(1), 53–77.
Huang, H. (2010). Electoral competition when some candidates lie and others
pander. Journal of Theoretical Politics, 22(3), 333–358.
Infiltration of campaign – False statements in a campaign – Election of a candidate,
Ohio R.C. § 3517.21 (1995)
Kellner, D. (2005). The media and election 2004. Cultural Studies ↔ Critical
Methodologies, 5(3), 298–308.
Lostracco v. Fox, 150 Mich. App. 617 (1986)
Mahon, J. (2007). A definition of deceiving. International Journal of Applied
Philosophy, 21(2), 181–194.
Massumi, B. (2002). Parables for the virtual: Movement, affect, sensation. Durham,
NC: Duke University Press.
Mearsheimer, J. (2011). Why leaders lie: The truth about lying in international poli-
tics. Oxford: Oxford University Press.
Michigan v. Dewald, 705 NW 2d 167 (2005)
Minnesota v. Thaddeus Victor Jude. 554 N.W.2d 750 (1996)
New York Times v. Sullivan, 376 U.S. 254 (1964)
Newman, M., Pennebaker, J., Berry, D., & Richards, J. (2003). Lying words:
Predicting deception from linguistic styles. Personality and Social Psychology
Bulletin, 29(5), 665–675.
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se, Washington § 42.17A.335 (2009)
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Rickert v. State of Washington Public Disclosure Committee, 168 P. 3d 826

(2007)
Simon, W. (1998). Virtuous lying: A critique of quasi-categorical moralism. The
Georgetown Journal of Legal Ethics, 12, 433–463.
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Semantics, 62(1), 64–66.
Susan B. Anthony List v. Driehaus, No. 13-193, slip op (U.S. Supreme Court,
June 16, 2014)
United States v. Alvarez, 617 F. 3d 1198 (2010)
Washington v. 119 Vote No! Committee, 957 P. 2d 691 (1998)
CHAPTER 3
The Judicial Discourse in the Handling

of Political Misinformation (and
Disinformation)
An unconditional right to say what one pleases about public affairs is

what I consider to be the minimum guarantee of the First Amendment.
Justice Hugo Black
Rosenblatt v. Baer (1966)
Abstract This chapter looks at how the courts have handled political
deception. This is a judicial discourse analysis, looking at how the courts
have framed their arguments. An important part of this is looking at what
the courts have said when finding a statute unconstitutional as opposed to
the arguments made when a statute is upheld. This chapter will go through
an historical exploration of the issue, looking at key cases arising from the
precedent that the Sullivan case set. The chapter will begin with a section
on the courts’ handling of advertising, specifically false advertising, in a
more general, non-political context. This will be followed by a discussion
of some significant court cases on political deception. That section will
also discuss some lesser-known, lower court cases, especially those that
conflict with the higher court consensus about First Amendment protec-
tion for political deception. The chapter will conclude with a transition
into a discussion of the three more contemporary cases of 281 CARE
Committee v. Arneson, Susan B. Anthony List v. Driehaus, and what is
probably the most important court case on this issue: U.S. v. Alvarez.

https://doi.org/10.1007/978-3-319-69820-5_3
54 R. N. SPICER
Keywords U.S. courts • U.S. Supreme Court • First Amendment

jurisprudence • Marketplace of ideas • New York Times v. Sullivan
Introduction
On March 29, 1960 a full-page ad titled “Heed Their Rising Voices”
appeared in The New York Times. Martin Luther King Jr. signed onto the
ad, along with eighty-three others, including activists, clergy, and promi-
nent civil rights supporters such as Harry Belafonte, Marlon Brando, Nat
Hentoff, Langston Hughes, Eartha Kitt, and Sidney Poitier.1 The group’s
message was a call for support for the civil rights movement and a request
for financial support for that movement. The only problem was that the ad
contained some claims that turned out to be false. For example, it was
stated that police in Montgomery, Alabama had padlocked the dining hall
at Alabama State College in order to “starve” student civil rights activists
“into submission” (New York Times 1964, pp. 256–257).
L. B. Sullivan, who was a city commissioner in Montgomery, sued The
New York Times for defamation, although his name appeared nowhere in
the ad, arguing that, since he was the commissioner in charge of the
Montgomery police force, false accusations against the police amounted
to false accusations against him and were thus defamatory. Sullivan sued
the Times and won in the Alabama trial court and was awarded damages
of $500,000, enough to have potentially bankrupted the Times at that
time. That ruling was upheld in the Alabama Supreme Court (New York
Times Co. v. Sullivan 1962). The U.S. Supreme Court overturned that
ruling, arguing:
[w]e consider this case against the background of a profound national com-
mitment to the principle that debate on public issues should be uninhibited,
robust, and wide-open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials.
(p. 270)
The Court ruled in favor of The New York Times because Sullivan was a
public official and such officials should have to meet the actual malice
standard if they sue a critic for making false statements. Making a false
statement with actual malice means the speaker acts “with knowledge that
it was false or with reckless disregard of whether it was false or not”
(p. 280).
THE JUDICIAL DISCOURSE IN THE HANDLING OF POLITICAL… 55
When looking at how the courts have handled false political speech, or
false speech in general, the starting point for contemporary legal thinking
has to be New York Times v. Sullivan. In Sullivan (1964) the U.S. Supreme
Court examined whether a form of speech “forfeits [First Amendment]
protection by the falsity of some of its factual statements and by its alleged
defamation” and held that, “Authoritative interpretations of the First
Amendment guarantees have consistently refused to recognize an excep-
tion for any test for truth” (p. 271). In other words, the Court was saying
that the First Amendment does not say, “Congress shall make no law”
unless the speech being legislated is false. This refusal to recognize any test
for truth stands in contrast to the times that courts have said false speech
has “no constitutional value,” as the U.S. Supreme Court did in Gertz v.
Welch (1974, p. 340).
Sullivan and its progeny, up through Alvarez, have created a mixed bag
for First Amendment jurisprudence and false speech. While Sullivan may
have been decided correctly, protecting the ability of the press to criticize
government and making it more difficult for those government officials to
take punitive actions against that press, the decision is not without its prob-
lems. Donald Lively (1986), president of Charlotte School of Law, argues
that while the Sullivan Court “determined that constitutional protection
does not hinge upon the truth of an idea or belief” (p. 480) less than a
decade after that decision the Court started to pull away from this view of
false speech and the First Amendment (p. 481). Lively was making this
argument in 1986. Almost thirty years later, with the Supreme Court’s
decision in U.S. v. Alvarez, it appears the Court is heading in the opposite
direction toward what University of Washington professor of law Ronald
Collins (2013) calls a near-absolutism, “which establishes a virtually impos-
sible bar for the government to overcome” for regulating speech (p. 428).
While it is important to acknowledge that an overly litigious political
culture is not going to be conducive to free and fair elections, it is also
important to note the problems with blind faith in the marketplace of
ideas. There is plenty of strong evidence that the marketplace of ideas very
often does not work out for the best. A belief in the self-correcting pro-
cess, or sharing John Milton’s faith in some unique quality of truth for
asserting itself in the marketplace, is a misplaced trust that can do harm to
a political system just as much as any restriction on speech. It is time to
push back just a little against the absolute faith in the marketplace, and to
recognize some occasional need for legislative or judicial intervention in
that marketplace.
56 R. N. SPICER
The judicial discourse surrounding the cases discussed in this section

elucidates a disagreement in free-speech theory and politics between an
absolutist position against any form of restriction on speech and a position
that acknowledges the need for some minor limits on speech. What the
absolutist position often fails to acknowledge, and what this chapter is in
part arguing, is that if an absolutist and market-oriented position on politi-
cal speech is going to be the dominant guiding principle of First
Amendment jurisprudence, it is essential that jurists, legal scholars, politi-
cians, their surrogates, and political observers acknowledge the social costs
of that perspective. It is not enough to only voice platitudes about the
beauty of freedom of speech and to never discuss the deceptions the courts
have often allowed it to protect. It is not enough to hold out free speech
as a tool of the governed to balance the power of the governing and not
acknowledge the uses of speech by the governing to suppress the gov-
erned. It is not enough to extol the virtues of free speech as if those virtues
carry with them no corresponding vices.
This echoes Schauer’s (2010) argument that throughout First
Amendment history there has been little effort to address the issue of the
legal protection of verifiably false speech. He argues Milton and Mill
addressed truth as a theological question. However, he points to key judi-
cial figures, such as Hand, Holmes, and Brandeis, as having avoided the
question in the twentieth century. Schauer says, “nearly all of the compo-
nents that have made up our free speech tradition … have had very little
to say about the relationship between freedom of speech and questions of
demonstrable fact” (p. 907). Again, there are strong disagreements at
work here. There is the need to find a balance between the right to criti-
cize public officials, even if that criticism may contain factually false state-
ments or at least false implications, and the right of the public hearing the
criticism to make decisions about its government that are based upon
sound reasoning and accurate information. This right of the governed to
criticize the governing is probably the most important of any free-speech
issue. In the hierarchy of speech types, the U.S. Supreme Court has
bestowed criticism of the government the highest of protections, arguing
that discussion of public matters and government “has always rested on
the highest rung of the hierarchy of First Amendment values” (Carey v.
Brown 1980).2
The goal of this chapter is to explore what the courts have said over the
years about laws restricting false speech in politics. This exploration is split
across two chapters. This chapter will go through an historical exploration
of the issue, looking at key cases arising from the precedent that the
Sullivan case set. Following from that historical perspective, Chap. 4 will
look at three contemporary cases that point toward the future of First
Amendment jurisprudence on political deception. This third chapter will
begin with a section on the courts’ handling of advertising, specifically
false advertising, in a more general, non-political context. This will be fol-
lowed by a discussion of some significant court cases on political decep-
tion. That section will also discuss some lesser-known, lower court cases,
especially those that conflict with the higher court consensus about First
Amendment protection for political deception. The chapter will conclude
with a transition into a discussion of the three more contemporary cases of
281 CARE Committee v. Arneson, Susan B. Anthony List v. Driehaus, and
what is probably the most important court case on this issue: U.S. v.
Alvarez.
False Advertising
Delving into the realm of the law and false political speech requires begin-
ning with at least a brief exploration of truth-in-advertising laws more
broadly. Although it is problematic to impose capitalist thought about
exchanges of goods and services for currency onto our thinking about the
free exchange of ideas, one of the most popular conceptualizations of free
speech is the metaphor of the “marketplace of ideas.” This metaphor orig-
inates from U.S. Supreme Court Justice Oliver Wendell Holmes’s dissent
in the case of Abrams v. United States (1919),3 in his argument, “the best
test of truth is the power of the thought to get itself accepted in the com-
petition of the market” (p. 630).
If free speech and political debate in the U.S. constitute a “marketplace
of ideas,” then sincerely believed false information would certainly consti-
tute a “market failure” (Brietzke 1997, p. 965), and lying in politics must
be considered “an unfair trade practice” (p. 967). Even as these “markets”
fail, and despite the criticism of some scholars who see the analogy as
being overly influenced by capitalist and commercial ways of thinking
about speech (Barron 1967; McChesney 2000; Stein 2006), this analogy
continues to guide free speech and deception in political philosophy and
the law. If politics is a marketplace, then the regulation of that marketplace
is a process of maintaining its integrity. Deception in the marketplace is
certainly a failure of the integrity of the market, which is a failure of the
integrity, perhaps in some extreme cases the validity, of elections.
58 R. N. SPICER
Edward Balleisen (2017) presents an interesting history of the relation-

ship between false advertising protections and Better Business Bureaus
(BBBs) through the nineteenth and twentieth centuries. Balleisen argues
that early ad agencies in the 1850s depended on patent medicine for much
of their revenue. As a result “advertising executives confronted negative
stereotypes that depicted them as shady operators who lacked scruples”
(p. 44). He traces this history of BBBs and the truth-in-advertising move-
ment through 1850s up to the present day. Balleisen argues that, while
historically BBBs were seen as partners of government in the regulation of
false advertising, by the 2000s “far fewer Americans had a clear sense of
the BBBs purpose or impact, and there was much less confidence that it
would assist in mediating consumer complaints” (p. 49).
This partnership between government and private organizations under-
lines how there are different views on how to handle truth-in-advertising
regulations. There are also varying opinions about how much of a prob-
lem false advertising is in the first place. Drumwright and Murphy (2009)
used in-depth interviews with advertising professionals, along with analy-
sis of industry websites, textbooks, and academic literature to examine
current thinking about the ethics of the industry in general. They found
that for most industry professionals, truth in advertising was a non-issue
and that concern about it was overblown. Academics critiquing advertis-
ing disagreed that the issue was such a moot point, with one arguing that
the industry is not “clear-cut about what deceptive advertising is and what
we can allow and what we cannot allow” (p. 87).
One area of truth-in-advertising law that could be useful for thinking
about political ads comes from the case of People v. Wogaman (1984), in
which the Michigan Court of Appeals held that the purpose of the detri-
mental reliance standard is to “protect the unwary and negligent from the
deceit of those who would take advantage of another’s negligence or
incompetence” (pp. 826–827). In other words, detrimental reliance is
designed to protect someone, who may be unaware of something, from
being taken advantage of by those who are aware. For example, in
Michigan v. Reigle (1997) the Michigan Court of Appeals found that a
funeral home had misled its customers about the quality of caskets they
were sold, and that there was evidence of detrimental reliance on the part
of the customer in this transaction. The essence of detrimental reliance is
that the customer has relied upon the seller for important information and
was harmed by the seller’s withholding of that information, and thus a
deception has occurred and harm has been done.
If we are going to be stuck with thinking about political speech as a

marketplace, then detrimental reliance should be an applicable principle in
thinking about political deception. As much of the discourse surrounding
the marketplace-of-ideas argument implies, a political campaign is a neces-
sary part of how the electorate chooses who will govern. Campaigns are
primary sources of information about the candidates, and citizens use
them to make decisions. When members of the public vote, making those
decisions about leadership, they depend on the campaigns to inform them
about the candidates and how those candidates will address the problems
facing the local community, state, or the nation. When a campaign deceives
the public in any way, there is a situation of detrimental reliance and the
public, ill-informed and thus making a potentially bad, perhaps even disas-
trous decision, becomes a collective victim of that deception.
There are two problems with attempting to make this connection that
will stand in the way of creating truth-in-advertising laws applying to politi-
cal campaign ads. The first is that the U.S. Supreme Court created a long-
standing distinction between purely commercial speech and political speech
that reaches back to the case of Valentine v. Chrestensen (1942). Attorney
Colin B. White (2009), arguing in favor of a truth-in-political-advertising
law, summarizes the second obstacle for such statutes in his discussion of St.
Amant v. Thompson (1968), where he argues “the Court resigned itself to
the fact that in order to protect publications that are true, the First
Amendment must protect erroneous publications as well” (pp. 17–18).
In contrast to the very broad protection afforded to political speech,
the courts still allow truth-in-advertising laws to apply to purely commer-
cial speech, which enjoys less protection under the First Amendment than
political speech does. Legal scholars (Franks 1977; Post 2000; McNally
2013) have argued that the Supreme Court developed the commercial
speech doctrines through a series of cases beginning with Valentine and
evolving through Virginia Pharmacy Board v. Virginia Consumer Council
(1976) and Bates v. State Bar of Arizona (1977). This development and
definition of the doctrine has been a difficult one. Kozinski and Banner
(1990) argue that in Valentine the Supreme Court “plucked the commer-
cial speech doctrine out of thin air” (p. 627) and McNally (2013) adds
that this case is where the doctrine was created “whether [the Supreme
Court justices] realized it or not” (p. 3).
In Valentine v. Chrestensen (1942) the Court upheld a New York City
ordinance, § 318 of the Sanitary Code, banning the handing out of leaflets
on city streets. In that case, F. J. Chrestensen had created a double-sided
60 R. N. SPICER
flyer with an ad for his submarine tours on one side and a protest message
“against the action of the City Dock Department in refusing [Chrestensen]
wharfage facilities at a city pier for the exhibition of his submarine” on the
other (p. 53). According to the U.S. Supreme Court decision the police
advised Chrestensen that his leaflet violated § 318 but he “proceeded with
the printing of his proposed bill and started to distribute it. He was
restrained by the police” (p. 53). Chrestensen was granted an injunction
against the continuation of the city stopping him from handing out his
leaflets. The Circuit Court of Appeals upheld that injunction.
Lewis Joseph Valentine, the Commissioner of the New York City Police
Department, appealed to the U.S. Supreme Court (p. 54). The
U.S. Supreme Court upheld the city ordinance and reversed an injunction
against the city’s enforcement of it, holding that if Chrestensen’s argu-
ment were successful, any business wanting to distribute advertising leaf-
lets “need only append a civic appeal, or a moral platitude, to achieve
immunity from the law’s command” (p. 55). As McNally argues, even if
they did not intend to, the Court created in that decision a distinction
between commercial speech and other kinds of speech, for example, politi-
cal speech. Robert Post (2000) adds to this, citing the Virginia Pharmacy
case, that the Court has placed purely commercial speech in a subordinate
position in the hierarchy of different kinds of speech (p. 5).
Post connects the commercial speech doctrine to a Meiklejohnian
notion of free speech where “the constitutional function of communica-
tion is to inform an audience of citizens about matters pertinent to demo-
cratic decision making” (p. 5). With this mindset it is easy to understand
how commercial speech might fall below political speech in a hierarchy
speech types. However, in the Virginia Pharmacy case the Court ruled
that while the First Amendment does in fact protect commercial speech, it
“does not prohibit the State from insuring that the stream of commercial
information flow cleanly as well as freely” (p. 772).
In Virginia Pharmacy, the Court faced the question of whether the
First Amendment protected advertising for pharmaceuticals. The state of
Virginia, at the time, had a statute banning the advertising of drug prices.
The Virginia State Board of Pharmacy challenged this statute on First
Amendment grounds and won. One year later, in Bates v. State Bar of
Arizona, the Supreme Court ruled that a Supreme Court of Arizona rule
prohibiting attorneys from advertising their services was a violation of
the First and Fourteenth Amendments of the U.S. Constitution. John
Bates and his colleague Van O’Steen offered low-cost legal services to
individuals who could not afford lawyers but also did not qualify for legal
aid from the government. In order for their service to be financially via-
ble they decided it was essential to advertise it. The Supreme Court of
Arizona found them in violation of the state bar’s rule against lawyers
advertising. Bates and O’Steen challenged that ruling and won in the
U.S. Supreme Court.
Taken together, the U.S. Supreme Court’s rulings in Bates and Virginia
Pharmacy establish that the First Amendment protects purely commercial
speech. The Court stated in Bates, “such speech serves individual and soci-
etal interests in assuring informed and reliable decision making” (p. 364).
However, in Virginia Pharmacy the Court also implies that First
Amendment protection for commercial speech is not absolute when they
argue that if there is some “kind of commercial speech that lacks First
Amendment protection … it must be distinguished by its content”
(p. 761). Franks (1977) notes in his examination of the commercial speech
doctrine that two occasions where content can be distinguished so as to
establish a lack of First Amendment protection is when it is false or mis-
leading or when it pertains to some illegal activities (p. 719).
Franks proceeds to use the Court’s ruling in Pittsburgh Press v. Pittsburgh
Commission on Human Relations (1977) and the issue of advertisements
pertaining to illegal activities as a basis for understanding how the Court
might deal with false or misleading advertisements. He argues that the
regulation of deceptive commercial speech “would be consistent with the
treatment of ads concerning illegality in Pittsburgh Press” (p. 722). The
philosophical basis for such an argument, and for the broader argument in
favor of the regulation of speech, might be found with Alexander
Meiklejohn (1961), who famously argued the First Amendment is an
absolute. Meiklejohn refers to the paradox, the “difficulties and puzzle-
ments with which the courts must deal” when facing a question of whether
a particular regulation of speech is able to pass constitutional muster
(p. 257). These “difficulties and puzzlements” are central to this chapter.
Meiklejohn proposes a few ways in which the regulation of speech
would be acceptable because, he argues, the absolutist position does not
argue that freedom of speech equates to “an unlimited license to talk,” as
he says Supreme Court Justice Harlan argued (p. 249). In fact, Meiklejohn
says that Harlan was basically creating a straw man when he characterized
the absolutist position in that way. Meiklejohn says that one can be a free-
speech absolutist and still allow for time, place, and manner restrictions.
The absolutist also does not believe that the First Amendment would pro-
62 R. N. SPICER
tect advocating murder. It also contains the phrase “peaceably assemble,”

indicating that rioting is not protected. These are just a few examples of
the exceptions Meiklejohn says the First Amendment does not protect.
The courts have established that false advertising is included on that list.
One of the “difficulties and puzzlements” is whether false political speech
falls under that umbrella or if it is a separate category.
So the Court has established First Amendment protection for purely
commercial speech, while also allowing for the regulation of false speech
and speech pertaining to illegal activities. However, the U.S. Supreme
Court, and multiple lower courts around the nation, have knocked down
truth-in-advertising laws in a political context (Minnesota v. Jude 1996;
Washington v. 119 Vote No! Committee 1998) and even found what
amounts to a First Amendment right to lie (U.S. v. Alvarez 2012). The
decision in the Alvarez case will be explored in depth in the next chapter
of this book. The next section of this chapter will explain the ways in
which the courts have found the commercial speech of political advertise-
ments, which is not commercial speech in the way other commercials are,
enjoys a different level of First Amendment protection. The rest of this
chapter will show how that position of absolute protection for political
speech in advertising has evolved over time in various court cases.
The Judicial Discourse

Probably the most important book written on New York Times v. Sullivan
is Anthony Lewis’s Make No Law. This landmark case is important not
only because of the precedent it set for many cases about false and defama-
tory speech but also because it raised important issues about the ability of
citizens to freely criticize those in power in government. Lewis (1992)
argues that in this case L. B. Sullivan, the Alabama commissioner who
sued the Times, was targeting “the role of the American press as an agent
of democratic change. He and other Southern officials … were trying to
choke off a process that was educating the country about the nature of
racism and was affecting political attitudes on that issue” (p. 42).
Standing back and viewing this case in terms of its historical impor-
tance, it can be seen as protecting the important “breathing space” neces-
sary for critiquing government action.4 It is also important to view the
case in terms of its application solely in its moment in that history. By the
time Sullivan was decided southern officials had racked up “nearly $300
million in libel actions against the press” (Lewis, p. 36). Lewis says that
libel lawsuits were used by those southern officials “as a way of repressing
the movement for civil rights” (p. 35). They believed they could sue the
press into oblivion to end news coverage of their abuses.
The Sullivan case had some important effects on the nature of political
debate, the public’s ability to criticize the government, and defamation
law. It defended political speech from the chilling effect of lawsuits. It
allowed defamation laws to stand, but under the more stringent actual
malice standard applied to public officials. It took the power for restricting
defamation away from the states, which is especially important given the
way Lewis describes the manner in which the kangaroo courts in Alabama
handled the Sullivan case before it reached the U.S. Supreme Court. All
of this made it more difficult for elected officials to win defamation law-
suits against citizens who criticize them, in particular those citizens who
are critical and may sometimes inadvertently make false statements.
While the Sullivan did not do away with defamation law altogether,
two years later Justice Hugo Black made an argument for problematizing
them in the case of Rosenblatt v. Baer (1966). In that case Rosenblatt
wrote a newspaper column commending newly elected county commis-
sioners for their money management. In his column he asked, “what hap-
pened to the all the money last year?” Baer, who lost his county
commissioner’s seat in the previous year’s election, sued Rosenblatt for
defamation. He won his lawsuit in the New Hampshire Superior Court
but the U.S. Supreme Court overturned that decision. While the Court
sided with Rosenblatt they did hold that “[s]ociety has a pervasive and
strong interest in preventing and redressing attacks upon reputation,” but
that in the Rosenblatt case these interests were in conflict with the First
and Fourteenth Amendments (p. 86).
Justice Black, joined by Justice William Douglas in a partial concur-
rence/partial dissent, delivers a strongly worded rebuke to defamation
laws in Rosenblatt, arguing:
The only sure way to protect speech and press … is to recognize that libel
laws are abridgments of speech and press and therefore are barred in both
federal and state courts by the First and Fourteenth Amendments. I repeat
what I said in the New York Times case that “An unconditional right to say
what one pleases about public affairs is what I consider to be the minimum
guarantee of the First Amendment.” (p. 95)
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Reacting to this argument, an important point of this chapter is that, while

an absolutist and market-oriented conception of the First Amendment is a
dominant one in judicial discourse, it is in reality not so easy a thing to
maintain. Black and Douglas argue forcefully against defamation laws on
the grounds that they violate freedom of speech. By contrast, in his con-
currence in Rosenblatt Justice Potter Stewart argued, “The right of a man
to the protection of his own reputation from unjustified invasion and
wrongful hurt reflects no more than our basic concept of the essential
dignity and worth of every human being—a concept at the root of any
decent system of ordered liberty” (p. 92).
Sullivan and Rosenblatt are historically important cases that intersect
the problem of defamation with the ability of the public to criticize gov-
ernment officials. The Sullivan case in particular established the actual
malice standard, which requires a public figure or public official, as plain-
tiff, to prove the defendant made a statement “with knowledge that it was
false or with reckless disregard of whether it was false or not” (p. 280). In
1974, with Gertz v. Welch, the U.S. Supreme Court built on this by even
more strongly establishing that it should be more difficult for public fig-
ures and public officials to win a defamation lawsuit than it is for private
figures.
In Gertz the Court decided that private individuals should be held to
different standards than public officials when bringing a defamation suit.
The court said that private citizens lack the access to channels of mass
communication that is enjoyed by public officials (p. 344). They also held
that people who run for office knowingly choose a life that will involve
greater public scrutiny and should expect that some false statements will
be made about them (p. 345). Private individuals, conversely, do not make
this choice. The Court ended up ruling that “so long as they do not
impose liability without fault, the States may define for themselves the
appropriate standard of liability for a publisher or broadcaster of defama-
tory falsehood injurious to a private individual” (p. 347). Gertz and
Sullivan present an interesting contrast in how Sullivan constitutionalized
defamation vis-à-vis public figures but left it to the states vis-à-vis private
figures.
Sullivan, and a long list of cases that followed it, have addressed the
question of balancing the interests of free speech against those of the pro-
tection of reputations of public officials. Alongside that question is one of
the proper venue for making accusations and how the courts should treat
falsity in such accusations. Brown v. Florida (2007) addresses both of these
issues. In that case Greg Brown, who was the property appraiser for Santa
Rosa County, FL, sued Robert Burgess and Hilton Kelly, two of his politi-
cal opponents, for recovery of costs and lawyers’ fees after Burgess and
Kelly had filed ethics complaints with the Florida Commission on Ethics
against Brown in the midst of a political campaign.
It was noted during the lawsuit that Burgess and Kelly were supporters
of Brown’s 2004 campaign opponent, Leon Cooper, the implication
being that the ethics complaints were filed in order to benefit Cooper
politically. In this case Stephen F. Dean, Administrative Law Judge of the
Division of Administrative Hearings, had ordered Burgess and Kelly to
reimburse Brown for his costs because of the finding that the ethics com-
plaints were politically motivated. The Florida Commission on Ethics
remanded the decision after Dean retired. Because of his retirement the
case was given to Administrative Law Judge Lisa Nelson in the Florida
Division of Administrative Hearings who overturned it. Brown appealed
this overturning to the Florida First District Court of Appeals.
Both of the above questions, about balancing freedom and reputation
and the question of the venue in which to do so, are addressed in the
Florida First District Court of Appeals decision. The court noted:
In the course of the final hearing [by the Florida Commission on Ethics],
many of the commissioners expressed the view that the complaints by
Burgess and Kelly were among the most egregious examples of misuse of an
ethics complaint to harm a political opponent. They described the com-
plaints as “blatantly political” and “shameful.” Nevertheless, the commis-
sion denied Brown’s request for costs and attorney fees. (p. 556)
On the question of reputation and free speech, Brown presents an interest-

ing legal conundrum. Burgess and Kelly argued they should not have to
reimburse Brown for his fees because his complaint did not meet the actual
malice standard from New York Times v. Sullivan. The Court of Appeals
held this argument to be flawed because the statute in question, Florida
§ 112.317(8)5 (False or malicious charges 2011), stated that a complain-
ant is liable for an ethics complaint subject’s costs and attorney’s fees if the
complaint is made with the “knowledge that the complaint contains one
or more false allegations or with reckless disregard for whether the com-
plaint contains false allegations of fact.” The appeals court found it “sig-
nificant, in our view, that the term, ‘actual malice,’ does not appear in the
text of the statute” (p. 558).
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The court in this case employs a hypothetical scenario in which Burgess

and Kelly might have made (false) accusations of corruption against Brown
in the press. Brown could have chosen to argue back or ignore them.
Instead the accusations were made in an official ethics complaint, thus
drawing Brown into the court system, giving him no choice but to have to
fight. In other words, the First Amendment does not give one the “right
to initiate a legal proceeding based on false allegations” (p. 560). As the
court notes, under Florida law, “the plaintiff in a malicious prosecution
case need not prove actual malice” (p. 560).
The judicial discourse uses “venue” as a tool for interpreting the law
and for characterizing both speech and the regulation of political decep-
tion. For example, actual malice is held to be a necessity for any legislation
punishing defamatory speech in one venue (campaign speech) but not
necessarily in another (court filings). This sets aside the concept of quali-
fied privilege, which protects speech such as when a witness recounts “an
official government report or statement and remain[s] immune from libel
even if the publication of the material defames someone” (Pember and
Calvert 2011, p. 214). A journalist making a defamatory statement in
court testimony differs from a situation where an individual makes a false
statement about a political opponent in court testimony or an official
document.
For example, if Rep. Smith is running for re-election and supporters of
his challenger go out on the campaign trail and falsely claim that Smith
took campaign donations in exchange for voting in favor of an appropria-
tions bill the courts are likely to say that his opponents’ political speech,
even if it is false, is protected by the First Amendment. Conversely, if his
opponents sit on the witness stand in a courtroom or file a complaint with
an ethics commission, both of which would be sworn statements, the
courts are going to correctly say that the First Amendment, under those
circumstances, does not protect that same deceptive statement. This is a
recognition that the same statement receives different levels of protection
under different circumstances.
Another interesting aspect of this is how the courts are placing restraints
on the use of the justice system as a tool of political deception. Staying
with the Brown case as a hypothetical, if Brown’s political opponents had
called a press conference and had accused him of corruption the public
might perceive this as just political rhetoric, unless his opponents managed
to produce some kind of damning evidence. When they file an official eth-
ics complaint the public is more likely to think there is something of sub-
stance to the allegations even if they do not see the tangible evidence. The
mere existence of the official complaint, for many, could be evidence
enough. Looking at the case through this lens we can see the court in the
Brown case as taking courtrooms and ethics commissions out of the politi-
cal operative’s arsenal of weapons.6
Another example of this restraining power is in Badeaux v. Southwest
Computer Bureau (2006). In this case, Lloyd Badeaux was a candidate
for the Lafourche Parish presidency in Louisiana.7 During his campaign,
Southwest Computer Bureau, a Louisiana company that maintains a
voter database and helps candidates and consultants run campaigns,8
mailed an anonymous letter to voters in the parish that Badeaux claimed
contained false and defamatory information about him. The Louisiana
district court declared the plaintiff did not establish a right of action or a
cause of action and that La. R.S. § 18:1463, a law restricting defamatory
speech about a candidate, was unconstitutional.9 On appeal, the Supreme
Court of Louisiana held that the plaintiff did establish a right of action,
but upheld the decision that he failed to establish a cause of action. In
other words he did not, in his claim, specify what defamatory statements
were made against him.
This case is important to this discussion because of the way it demon-
strates the idea of restraint on judicial power. In much of the discourse
about political deception and the law, there is a focus on the power of the
courts to restrain the speech of political actors. There is the idea of the
chilling effect of defamation lawsuits or potential fines and prison time
for false statements. What makes the Badeaux case interesting in relation
to that discourse is that the Louisiana Supreme Court is recognizing the
power of the judiciary to restrain the legislature from addressing the
problem of political deception. The Louisiana Supreme Court said the
lower court should not have even addressed the constitutionality of the
statute in question (pp. 1217–1218).10 Here the power of the judiciary
is problematized as overreach in its function as a check and balance on
legislative power.
That same year in Louisiana, the First Circuit Court of Appeal affirmed
a trial court’s motion to strike a lawsuit that was brought under the same
law. In that case, James Lamz, a candidate for Slidell City Court in 2004,
sued his opponent, John Wells, saying he repeatedly made false statements
about him. The court held that Wells’s speech was protected by the First
Amendment and, under Louisiana Article 971, a statute limiting lawsuits
that might chill protected speech, the trial court granted Wells’ special
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motion to strike. Article 971 was passed by the Louisiana legislature in

1999 in an attempt to prevent what it saw as the frivolous use of the court
system for lawsuits intended to chill political criticism. In the eyes of the
First Circuit, Lamz v. Wells (2006) fell under that category of frivolity.
The court added that Louisiana had a problem with an increase in such
frivolous lawsuits and that Article 971 was enacted “to encourage contin-
ued participation in matters of public significance and to prevent this par-
ticipation from being chilled through an abuse of judicial process” (Lamz
v. Wells 2006, p. 796). The judicial discourse in this case reinforced a
restraint placed on litigation as a chilling tool. The chilling-effect argu-
ment, part of the marketplace-of-ideas construction, restrains the law from
being an essential part of addressing political deception, instead placing
the impetus for correcting the record on the participants in the political
process. This is problematic because, as lawyer Jeffery Barnum argues, it is
based on a somewhat poor assumption.
Barnum (2013), discussing Justice Stephen Breyer’s concurrence in the
Alvarez decision, characterizes Breyer’s formula for assessing the constitu-
tionality of a speech restriction as balancing the harm done by that speech
against the constitutional harm done by the law in question (pp. 541–542).
The formula also includes “the mitigating effects of counterspeech”
(pp. 543–544). The problem with including counterspeech as part of the
formula, Barnum argues, is that the Court will treat counterspeech as “a
dependent constant with its value fixed” (p. 544). In other words, when
assessing a speech-related restriction the Court inserts counterspeech as a
constantly present variable, even if there is no hint of it in a given situation.
“No need for government restriction here,” the Court will say, “for there
is always counterspeech.” It matters not whether there actually is counter-
speech or if the potential counter-speakers have access to channels of com-
munication. The courts take it as a given, which is problematic.
The Badeaux case, which took place in 2007, with its gestures toward
the problem of the frivolity of political lawsuits and its problematizing of
the courts as political weapons, echoes the case of Charles S. Bresler, which
came more than thirty years before it. In that case Bresler was a real estate
developer and member of the Maryland House of Delegates, who was
applying for a permit to build high-density housing on land he owned.
Bresler also owned land the city was attempting to obtain in order to build
a school (Greenbelt v. Bresler 1970, pp. 8–9). During the permit hearings
“some people had characterized Bresler’s negotiating position as ‘black-
mail’” (p. 7). This characterization appeared in the Greenbelt News Review.
Bresler sued the newspaper for defamation, complaining that it had

“imputed to him the crime of blackmail” (p. 8).
The jury and the Maryland Court of Appeals both found in favor of
Bresler. During the course of the trial, however, the judge instructed the
jury on the actual malice standard in a way that the U.S. Supreme Court
felt “permitted [the jury] to find liability merely on the basis of a combina-
tion of falsehood and general hostility” (p. 10). This was, according to the
Supreme Court, an “error of constitutional magnitude” (p. 10). Clearly
“falsehood and general hostility” fall far short of “actual malice” as
described in Sullivan. The reason this was such a significant error is
because the Court set down in Sullivan precisely the standard to which a
public official, as plaintiff in a defamation case, should be held and the
court’s incorrect instructions to the jury failed to hold Bresler to that stan-
dard. The U.S. Supreme Court found that the newspaper articles in ques-
tion were “truthful and accurate” (p. 12) that “the word ‘blackmail’ in
these circumstances was not slander when spoken, and not libel when
reported” and reversed the lower court decisions (p. 13).
In reversing the decisions, the Supreme Court held that, “even the
most careless reader must have perceived that the word was no more than
rhetorical hyperbole, a vigorous epithet used by those who considered
Bresler’s negotiating position extremely unreasonable” (p. 14). This is
one of those examples of the Court saying to a defamation plaintiff, “poli-
tics ain’t beanbag,”11 which is one of the two most prominent arguments
of the judicial discourse, the idea that political discourse can be rough,
filled with “rhetorical hyperbole” and “vigorous epithets.” In the Bresler
decision, the court states that political debates in general, and Bresler’s in
specific, can be “heated” (p. 13) and that in the course of such a heated
discussion, Bresler’s negotiating position was characterized by some as
blackmail. The newspaper merely reported on that. Bresler’s attorney
attempted to argue the newspaper knew he had not committed blackmail
and still used that term and, therefore, acted with actual malice. The Court
did not buy that argument.
The cases discussed thus far focus on legal situations where it can, in a
fairly clear manner, be argued that the government has a legitimate i nterest
in regulating a political actor’s actions. There are arguments in both direc-
tions but there is an established legal principle of, for example, punishing
defamation or the filing of a false ethics commission complaint. The last
two cases that need to be addressed in this chapter are open to more
debate about the legitimacy of government sanction for a particular action.
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The first is a lesser-known, lower court case called Tomei v. Finley (1981).
Although not being as consequential as other cases, it is useful to discuss
Tomei because it contributes some useful arguments. The second case,
which is better known and more recent, is Washington v. 119 Vote No!
Committee (1998), relating to the campaign against Initiative 119, a
‘Death with Dignity’ proposal in Washington State.
The Tomei case hinges on a strange aspect of Illinois state law where, in
each election in which a new slate of township representatives is fielded,
they are formed as a separate political committee rather than as part of one
of the two political parties. Lyons township, at the time of the events in
this case, was a Republican stronghold. The Democrats in Lyons took
control of the township board for the first time in 1977, when their can-
didates formed a committee that confusingly gave the false impression
they were the Republican candidates (p. 696).
In 1980, David Tomei and Morgan Finley, the heads of the local
Republican and Democratic parties respectively, met to discuss that year’s
township election. Finley proposed a coalition election committee and
joked that, if the Republicans were not interested, the Democratic candi-
dates could run as the Representation for Every Person Party or REP for
short. Finley’s joke was a reference to that 1977 election in which
Democrats won, at least in theory, because voters were confused as to
their slate of candidates’ actual party affiliation. The Republican Party
rejected Finley’s proposed coalition committee, and the Democrats subse-
quently formed the REP Party, distributing campaign literature contain-
ing the message “Vote REP” (p. 697).
Tomei and members of the Republican Committee of Lyons Township
asked the U.S. District Court for the Northern District of Illinois for an
injunction against the defendants, the Democratic Committee of Lyons,
arguing that their use of the phrase “vote REP” in their campaign litera-
ture gave voters the false impression the Democratic candidates were
Republicans and would lead voters who intended to vote Republican to
inadvertently vote for Democrats. In ruling for the Republicans the court
quoted First National Bank of Boston v. Bellotti (1978),12 in that decision’s
holding for “Preserving the integrity of the electoral process, preventing
corruption” and maintaining an informed electorate as “interests of the
highest importance” (pp. 788–789).
The court characterized the Democrats’ argument that the injunction
would violate their free-speech rights as an attempt to “wrap themselves in
the mantle of the First Amendment” when they were “seeking to poison
the stream, to deprive voters of a free choice by diverting the intended

exercise of the franchise to an unintended result” (p. 698). There are two
points that have to be noted about this opinion. First, the court draws a
connection between political advertising and the regulation of commercial
advertising, which could be problematic since the Supreme Court has
made a distinction between political speech and purely commercial speech
(Valentine v. Chrestensen 1942). Second, there is the court’s use of the
actual malice standard in deciding to allow the injunction of the deception
in question.
Johnson-Cartee and Copeland (1997) argue that the reason the district
court’s Tomei decision was not overruled by a higher court is because of
the use of the “actual malice” standard in conjunction with commercial
false advertising precedent in the cases of Bates v. State Bar of Arizona
(1977) and National Commission on Egg Nutrition v. FTC (1977). They
also note that previous decisions on political advertising had not made
reference to commercial advertising cases. Johnson-Cartee and Copeland
argue that, had the decision not included the actual malice standard in its
rationale, it likely would not have been upheld (p. 194). These two things
are problematic, first, because commercial speech and political speech
enjoy different levels of protection under the First Amendment.
Johnson-Cartee and Copeland’s argument aside, in the current judicial
climate the actual malice standard might not be useful in upholding the
Tomei decision. This is especially true with the Alvarez and SBAL deci-
sions, but Tomei could have also been knocked down via Washington v. 119
Vote No! Committee (1998). In 119 Vote No! the Washington State
Supreme Court was faced with the question of the constitutionality of
Washington § 42.17.530(1)(a), which “prohibit[ed] any person from
sponsoring, with actual malice, a political advertisement containing a false
statement of material fact” (p. 693). The 119 Vote No! decision found that
statute to be unconstitutional because it was overly broad. The majority
on the Washington Supreme Court held that defamation law and the
actual malice standard are about an individual’s reputation and not false
statements about issues. It even went so far as to echo Hugo Black’s
argument that “libel laws are abridgments of speech and press” (Rosenblatt
v. Baer 1966, p. 95).
The majority held that “the statutory requirement that malice be
proved by a high standard of proof does not cure … the chilling effect of
possible governmental sanction” (p. 696). By questioning the actual mal-
ice standard, and its potential effect on the “faint of heart” (p. 696) in this
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context the Washington court, however inadvertently, calls into question

the power of that standard to protect against the chilling effect of the law.
One might ask, if the actual malice standard cannot protect against the
chilling effect in the context of this Washington statute, then how can the
legal system have any faith in the actual malice standard in the context of
defamation law?
This case came before the Washington Supreme Court after the trial
court found that the 119 Vote No! Committee had not violated the stat-
ute in question. It was appealed to the state’s Supreme Court by the
American Civil Liberties Union (ACLU) as a challenge to the constitu-
tionality of the statute. While the majority decision sided with the ACLU,
the concurring opinions offer arguments that contribute to the judicial
discourse surrounding political deception. Justice Richard Guy concurred
that the 119 Vote No! Committee did not violate the statute, but dis-
agreed with the argument that the statute was constitutionally invalid.
Guy argued, “Intentional, malicious lies do not foster debate; they foster
deception and manipulation of the voting public” (p. 699).
In a separate concurrence, Chief Justice Barbara Madsen argued that
the statute was facially unconstitutional as it applied to ballot initiatives
but not as it applied to individual candidates. Madsen stated that the
“interest in reputation is what distinguishes speech concerning an initia-
tive measure … and speech regarding individuals” (p. 700). Madsen also
argued that cases such as New York Times v. Sullivan (1964) and Monitor
Patriot Co. v. Roy (1971) only dealt with instances of protected speech,13
which does not address the fact that “where the actual malice standard is
met, speech may subject the speaker to pay damages without running
afoul of the First Amendment” (p. 700). In other words, as discussed
above, the actual malice standard helps to balance the need for protecting
reputations with the need for protecting the First Amendment. Madsen
does, however, agree with the majority decision that since there is no issue
of reputational harm in speech about a ballot initiative the statute does run
afoul of the First Amendment, and the actual malice standard is not
enough to save it from that fact.
While Guy and Madsen differed slightly with the majority, the sharpest
criticism of the decision came from Justice Phillip Talmadge’s concur-
rence. His opinion echoed arguments in Tomei and made for a perfect
counter-argument to the dominant judicial discourse of the marketplace
of ideas that protects deception. Talmadge wrote, “Today the Washington
Supreme Court becomes the first court in the history of the Republic to
declare First Amendment protection for calculated lies” (p. 701). Talmadge

argued that the decision was so broad it made it impossible for any future
statute punishing lies to “survive a First Amendment challenge” (p. 701).14
Talmadge continued with the point that there is a “mountain” of court
decisions to contradict the majority finding that “the First Amendment
condones deliberate falsehoods in campaigns” (p. 705). He also disputed
the argument that § 42.17.530(1)(a) was overly broad:
The statute speaks to only one person: the calculating liar, who with clear
mind and steadfast, deliberate purpose, coldly composes and diligently dis-
tributes knowing lies to effect a desired political result. The statute chills
only this devious liar, not free speech. In short, “The actual malice test
penalizes only the ‘calculated falsehood.’” (p. 707)
While Talmadge is putting forth arguments similar to those in Tomei in

light of New York Times v. Sullivan and the more recent rulings in Alvarez,
U.S. v. Stevens, Minnesota v. Jude, and Washington v. 119 Vote No!
Committee, among other cases, it is difficult to imagine Tomei would stand
if it were to take place today, and it is difficult to imagine the current
U.S. Supreme Court would find his arguments compelling.
This is unfortunate. However, the Tomei court’s statement that the
Democrats in that case were wrapping themselves in the First Amendment,
an argument that freedom is sometimes the last refuge of the scoundrel,
and deception is a disenfranchisement of the voters, are compelling argu-
ments and should become part of legal thinking about the First Amendment
and deception in politics. The cases discussed in this chapter look at the
legal discourse of various statutes and how cases like Tomei, 119 Vote No!,
and Sullivan have created a complex and sometimes conflicted line of
thought on deception and free speech. The next chapter will take on three
much more recent cases and how they establish a First Amendment juris-
prudence that is hinted at in 119 Vote No!
Conclusion
The judicial discourse surrounding the cases discussed in this chapter elu-
cidates a disagreement in free-speech theory and politics between an abso-
lutist position against any form of restriction on speech and a position that
acknowledges the need for some minor limits on speech. What the abso-
lutist position often fails to acknowledge, and what this chapter is in part
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arguing, is that if an absolutist and market-oriented position on political

speech is going to be the dominant guiding principle of First Amendment
jurisprudence, it is essential that jurists, legal scholars, politicians, their
surrogates, and political observers acknowledge the social costs of that
perspective. It is not enough to only voice platitudes about the beauty of
freedom of speech and to never discuss the deceptions the courts have
often allowed it to protect. It is not enough to hold out free speech as a
tool of the governed to balance the power of the governing and not
acknowledge the uses of speech by the governing to suppress the gov-
erned. It is not enough to extol the virtues of free speech as if those virtues
carry with them no corresponding vices.
No matter what the context is, or how forms of speech are hierarchized,
there are unresolved problems with balancing various social interests in
the judicial discourse. There are tensions between the right to speak freely
and the social costs of allowing lies and falsehoods to spread freely; the
right to criticize the government and the need to ensure an accurately
informed electorate; the idea that free debate will produce the best results,
contrasted with the argument that laws are necessary for the orderly con-
duct of such debates. There is a need to protect freedom while recogniz-
ing the potentially negative social consequences of that freedom.
Of all of the conflicts and problems, the most important consequence
of the courts finding a First Amendment protection for political deception
is what that does to the relationship between the electorate and candidates
running for office to govern their lives. This becomes even more conse-
quential when those candidates become elected officials. An electoral deci-
sion that is based upon a lie, or any kind of deception, depending on the
severity of that deception, calls the legitimacy of government into ques-
tion. In interpersonal situations, when a person makes a decision based
upon someone else’s lie a moral violation has been committed, because
lying “violates human autonomy” (Strauss 1991, p. 355).
David Strauss (1991) makes a distinction between “lies that are manip-
ulative and false statements made for difference reasons” (p. 355). For
example, a person may make a false statement inadvertently. However,
Strauss argues:
Lying forces the victim to pursue the speaker’s objectives instead of the
victim’s own objectives. If the capacity to decide upon a plan of life and to
determine one’s own objectives is integral to human nature, lies that are
designed to manipulate people are a uniquely severe offense against human
autonomy. (p. 355)
Strauss goes on to describe different ways in which the government might

deceive, some of which are problematic (e.g. misleading citizens in order
to manipulate them) and some are acceptable (e.g. withholding informa-
tion from a foreign government). An important point to take from Strauss
is that, while manipulative deception, especially by governments, is prob-
lematic, “Not all government lying, and certainly not all government
refusals to release information, are manipulative” (p. 358).
Helen Norton (2012) looks at how government deceives the public
through the non-disclosure of information. One kind of non-disclosure
she discusses is anonymity or pseudonymity, the hiding of a speaker’s iden-
tity. Like Strauss, Norton finds nuance in the choices a speaker makes. On
one hand, anonymity can be necessary for protecting the speaker from
political or violent retaliation. On the other hand, withholding identity
can be a manipulative act, because “making such truthful information
available to listeners will limit their ability to influence their listeners’
choices” (p. 644). So manipulation through the suppression of informa-
tion is also a violation of the citizen’s autonomy.
Charles Lewis, in his book 935 Lies, begins by looking at how the justi-
fication for the Iraq War in 2003 was a manipulation of the public. Lewis
cites a report he wrote for the Center for Public Integrity (2008), Iraq:
The War Card, in which he and his fellow researchers found that in the
two years after the September 11 terrorist attacks, “George W. Bush and
seven of his administration’s top officials made at least 935 false statements
about the national security threat posed by Iraq” (Lewis 2014, p. xiii).
Lewis expands beyond the Iraq War era to thinking about the arc of his
career in journalism during which, he argues, the public has been “lied to
innumerable times, by our government, by various corporations, and by
other organizations” (p. xvii).
Compounding the problem of deception in public life is that, Lewis
argues, there seems to be no consequences for it. These bad actors are able
to lie “with impunity” and, on top of that, the public does not have the
necessary level of access to information to “prevent or remedy” tragedies
such as the war in Iraq. “Deceptions like these,” Lewis argues, “some by
omission, others by commission—make a mockery of our political dis-
course” (p. xviii). Court cases such as Minnesota v. Jude and Washington v.
119 Vote No! Committee, and even more so the Alvarez case, protect these
lies, make it more difficult to hold liars accountable, and in the process
open the door to more deception in the future.
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Building on this chapter’s exploration of such past cases, the next chap-
ter looks at three more recent cases and how they handled political decep-
tion. One is about an elected official lying to his constituents and
colleagues. The other is about an activist organization accused of lying
about an elected official in attempting to defeat him in his re-election. The
third is about an organization accused of misleading the public about the
effects of a school funding ballot initiative. These three cases taken
together, but especially the Alvarez decision, lay the groundwork for
undoing any existing or future attempts to use legal sanctions to punish
political deception.
Notes
1. An image of the ad, including its full message and signatories, can be found
on the Wikipedia page for Heed Their Rising Voices.
2. Carey v. Brown (1980) deals with an Illinois statute that made it illegal to
peacefully picket in residential areas while exempting picketing from labor
organizations. The U.S. Supreme Court held that the statute was uncon-
stitutional in part because there was no reason to afford protection to labor
speech in a way that was not enjoyed by non-labor speech (pp. 465–466).
3. In Abrams v. U.S. (1919), the defendants dropped leaflets from a window
in New York City, voicing opposition to World War I. They specifically
advocated “curtailment of production of things … essential to the prosecu-
tion of the war” (p. 617). They were convicted of violating the Espionage
Act. The U.S. Supreme Court upheld that conviction. Holmes dissented,
arguing that the First Amendment protected the defendants’ speech.
4. The Court used the phrase “breathing space” in Sullivan, arguing that the
“erroneous statement is inevitable in free debate” and it must be protected
by the First Amendment (pp. 271–272). Simply put, speakers must be
allowed to make mistakes or they will be afraid to speak for fear that poten-
tial errors may result in a lawsuit or worse. The Court’s use of this phrase
is a quote from their decision one year before Sullivan in NAACP v. Button
(1963). In that case the National Association for the Advancement of
Colored People (NAACP) was charged with violating a Virginia statute
banning the “improper solicitation of any legal or professional business”
(NAACP v. Button 1963, p. 419). The Supreme Court found the applica-
tion of that Virginia statute to the NAACP to be an unconstitutional viola-
tion of their First and Fourteenth Amendment rights.
5. In Brown v. Florida the court of appeals states in footnote #1 that the stat-
ute § 112.317(8) was renumbered to § 112.317(7).
6. Alongside Brown v. Florida the 2013 decision by the United States District
Court of Minnesota in the 281 CARE case notes that the Minnesota stat-
ute challenged there requires complainants to file their complaints under
oath with the possible penalty of perjury and having to pay the attorney’s
fees for the target of a false complaint (281 CARE 2013, pp. 24–25).
7. In Louisiana a parish is the equivalent of a county. So what Badeaux was
running for would be the equivalent of a county executive position in
another state.
8. According to their website, “The Political Division of Southwest Computer
Bureau has been maintaining the Louisiana state voter file for over 20 years.
Catering to political candidates and consultants, we offer a wide variety of
products and services to facilitate the most effective campaigns” (SCBI
n.d., para 3).
9. A right of action means the law applies to the person in question. A cause
of action means a particular situation is actionable under the law. So the
plaintiff has to answer two questions. Does the law apply to me and does it
apply to the specifics of this situation?
10. In overturning the declaration on the constitutionality of the statute, the
Louisiana Supreme Court took a justifiably reprimanding tone toward the
lower court:
Thus, the district court could have resolved the issue of whether plaintiffs
stated a cause of action for defamation under La. R.S. § 18:1463 on
nonconstitutional grounds and should have done so. As this court has
previously stated, “We have consistently held that courts should refrain
from reaching or determining the constitutionality of legislation unless,
in the context of a particular case, the resolution of this is essential to the
decision of the case or controversy.” (pp. 1217–1218)
11. That phrase, originating in a newspaper column in 1895, means that poli-
tics is not a child’s game (Goddard n.d., para. 2). Politics can be a rough
and ugly business, not for the faint of heart. It is also the title of the mem-
oir of John “Pitt” Pittenger (2005). Pitt served as the dean of the Rutgers
School of Law–Camden in the 1980s. He served in the Pennsylvania State
Legislature and as the Pennsylvania secretary of education under Gov.
Milton Shapp. Most importantly, he was my friend and the first person to
give me lessons in how to manage a political campaign. For that I am
grateful.
12. First National Bank of Boston v. Bellotti (1978) is a case addressing the
constitutionality of a Massachusetts statute restricting corporations from
spending money on communications directed at supporting or defeating a
ballot measure that was not directly related to the corporation’s interests
(p. 767). In Bellotti the U.S. Supreme Court struck down that statute,
78 R. N. SPICER
holding that it placed an excessive burden on the First Amendment right

to freedom of speech (p. 776). While the Court acknowledges the impor-
tance of the integrity of the electoral process, they found the state’s argu-
ment in support of the statute in question unpersuasive on those grounds.
13. In Monitor Patriot v. Roy Alphonse Roy was a candidate in the New
Hampshire State Democratic Party’s primary election for U.S. Senate in
1960. During that campaign the Monitor Patriot newspaper published an
editorial in which they referred to Roy as a “former small-time bootlegger”
(p. 266). Roy lost the election and then sued the Monitor Patriot and the
North American Newspaper Alliance (NANA) for defamation because of
the “bootlegger” claim. Roy won his lawsuit in the New Hampshire trial
court and the New Hampshire Supreme Court affirmed that decision
(p. 270). The Monitor Patriot and NANA appealed to the U.S. Supreme
Court. In Roy the U.S. Supreme Court took issue with the trial court
judge’s instructions to the jury on how to decide if Roy’s history as a boot-
legger was a public or private matter, which would thus affect whether Roy
would be considered a public or private figure vis-à-vis defamation law and
the actual malice standard. The Court held that the judge’s instructions
had made it easier for the jury to find the defendant liable for defamation
in this case. This, the Supreme Court argued, placed a restrictive burden
on political speech and was inconsistent with the First Amendment. They
overturned the lower court’s decision.
14. Talmadge’s opinion is a concurrence and not a dissent because he argued
that the 119 Vote No! Committee did not violate the existing statute, but
disagreed with the court’s finding that a state has no interest or power to
regulate lies in campaigns “no matter how egregious the lies may be”
(p. 701).
References
281 CARE Committee v. Arneson, Civil No. 08-5215 ADM/FLN (2013)
Abrams v. United States, 250 U.S. 616 (1919)
Badeaux v. Southwest Computer Bureau, 929 So.2d 1211 (2006)
Balleisen, E. (2017). American better business bureaus, the truth-in-advertising
movement, and the complexities of legitimizing business self-regulation over
the long term. Politics and Governance, 5(1), 42–53.
Barnum, J. (2013). Encouraging Congress to encourage speech: Reflections on
United States v. Alvarez. Albany Law Review, 76(1), 527–559.
Barron, J. (1967). Access to the press: A new First Amendment right. Harvard
Law Review, 80(8), 1641–1678.
Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
Brietzke, P. (1997). How and why the marketplace of ideas fails. Valparaiso
University Law Review, 31(3), 951–969.
Brown v. Florida, 969 So.2d 553 (2007)
Carey v. Brown, 447 U.S. 455 (1980)
Collins, R. (2013). Exceptional freedom – The Roberts Court, the First
Amendment, and the new absolutism. Albany Law Review, 76(1), 409–466.
Drumwright, M., & Murphy, P. (2009). The current state of advertising ethics:
Industry and academic perspectives. Journal of Advertising, 38(1), 83–107.
False or malicious charges against, or false statements about, opposing candidates,
Florida § 112.317 (2011)
First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978)
Franks, J. (1977). The commercial speech doctrine and the First Amendment.
Tulsa Law Journal, 12(4), 699–730.
Gertz v. Welch, 418 U.S. 323 (1974)
Goddard, T. (n.d.). Politics ain’t beanbag. Taegan Goddard’s Political Dictionary.
Retrieved from http://politicaldictionary.com/words/politics-aint-beanbag/
Greenbelt v. Bresler, 398 U.S. 6 (1970)
Johnson-Cartee, K., & Copeland, G. (1997). Inside political campaigns: Theory
and practice. Westport, CT: Praeger Publishers.
Kozinski, A., & Banner, S. (1990). Who’s afraid of commercial speech? Virginia
Law Review, 76, 627–653.
Lamz v. Wells, 938 So.2d 792 (2006)
Lewis, A. (1992). Make no law: The Sullivan case and the First Amendment.
New York: Vintage.
Lewis, C. (2014). 935 lies: The future of truth and the decline of America’s moral
integrity. New York: Public Affairs.
Lively, D. (1986). The Supreme Court’s emerging vision of false speech: A First
Amendment blind spot. Rutgers Law Review, 38(3), 479–499.
McChesney, R. (2000). Rich media, poor democracy: Communication politics in
dubious times. New York: The New Press.
McNally, L. (2013). Vice advertising and the commercial speech doctrine. Law
School Student Scholarship. Paper 394.
Meiklejohn, A. (1961). The First Amendment is an absolute. Supreme Court
Review, 1961, 245–266.
Michigan v. Reigle, 566 N.W.2d 21 (1997)
Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)
NAACP v. Button, 371 U.S. 415 (1963)
National Commission on Egg Nutrition v. FTC, 570 F.2d 157 (1977)
New York Times Co. v. L.B. Sullivan, 144 So.2d 25 (1962)
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Norton, H. (2012). Secrets, lies, and disclosure. Journal of Law and Politics, 27,
641–654.
Pember, D., & Calvert, C. (2011). Mass media law. New York: McGraw Hill.
People v. Wogaman, 133 Mich. App. 823 (1984)
Pittenger, J. (2005). Politics ain’t beanbag. Bloomington, IN: AuthorHouse.
Post, R. (2000). The constitutional status of commercial speech. UCLA Law
Review, 48, 1–57.
Rosenblatt v. Baer, 383 U.S. 75 (1966)
Schauer, F. (2010). Facts and the First Amendment. UCLA Law Review, 57(4),
897–919.
Southwest Computer Bureau Incorporated. (n.d.). Services provided. Retrieved
from http://www.scbi.com/political2.asp
St. Amant v. Thompson, 390 U.S. 727 (1968)
Stein, L. (2006). Speech rights in America: The First Amendment, democracy, and
the media. Chicago: University of Illinois Press.
Strauss, D. (1991). Persuasion, autonomy, and freedom of expression. Columbia
Law Review, 91, 334–371.
Tomei v. Finley, 512 F. Supp. 695 (1981)
Valentine v. Chrestensen, 316 U.S. 52 (1942)
Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748 (1976)
White, C. (2009). The straight talk express: Yes we can have a false political adver-
tising statute. UCLA Journal of Law & Technology, 13(1), 1–55.
CHAPTER 4
Three Recent Cases: Alvarez, 281 CARE,

and SBAL
Permitting the government to declare [lying about military service] to

be a criminal offense … would endorse government authority to
compile a list of subjects about which false statements are punishable.
U.S. Supreme Court
U.S. v. Alvarez (2012)
Abstract This chapter focuses its attention on three important, recent

cases dealing with deception and political speech. The chapter looks at
three important arguments: (1) we should have some concern about how
these decisions contribute to the caricature of free-speech absolutism, (2)
we should think critically about the idea that a self-correcting marketplace
of ideas will be able to effectively weed out misinformation, disinformation,
and even purposeful and calculated lies, and (3) there is the idea that “every-
thing worth saying shall be said” and the argument that acts of deception
might not fall under that umbrella of protection. This chapter will discuss
these arguments through an examination of three important, recent cases
in political deception: U.S. v. Alvarez (2012), 281 CARE Committee v.
Arneson (2013), and Susan B. Anthony List v. Driehaus (2016).
Keywords U.S. courts • U.S. Supreme Court • First Amendment

jurisprudence • Marketplace of ideas • 281 CARE committee v. Arneson
• Susan B. Anthony List v. Driehaus • Stolen valor • U.S. v. Alvarez

https://doi.org/10.1007/978-3-319-69820-5_4
82 R. N. SPICER
Introduction
Probably the most important philosophical, political, and legal question
running through the issues discussed in this book is whether the First
Amendment is absolute. This is an intellectual challenge facing political
thinkers, legal scholars, and jurists in the U.S. How far do we want to let
freedom of speech go? The extreme absolutist would say we should not
even raise the question except to reiterate the phrase, “no law means no
law.” In other words, the U.S. Constitution says, “Congress shall make no
law,” therefor there is no point in even discussing the possibility of making
laws. Alexander Meiklejohn, who was a self-described free-speech absolut-
ist, raises two important points in response to this.
First, Meiklejohn says that non-absolutists, in response to absolutism,
“substitute caricature for refutation” (p. 248). As we have already seen, he
cites Justice Harlan’s argument in the Konigsberg (1961) decision that
freedom of speech does not equate to “an unlimited license to talk”
(p. 50). The absolutist position, Meiklejohn argues, makes no such argu-
ment. Second, he directs our attention toward an important flaw in the
idea of a self-correcting marketplace—the flaw of human weakness in the
fear of new ideas. “We are terrified by ideas,” Meiklejohn writes, “rather
than challenged and stimulated by them” (p. 263).
Robert Entman and Steven Wildman (1992) argue for a bridge between
such marketplace-of-ideas viewpoints and a social-responsibility orienta-
tion toward speech. The market philosophy sees competition, free from
government restriction, as the best stance on communication policy. The
social responsibility school sees unfettered markets as not only less effi-
cient but also potentially socially harmful. Yet, these two schools of
thought find common ground “in their shared assumption that diversity
should be a primary goal of communication policy” (Entman and Wildman
1992, p. 7).
In another writing, Meiklejohn (1948) adds to this by arguing that we
should not expect to be free “from regulation, but from undue regula-
tion” (p. 38). In other words, it is not regulation itself that is problematic,
but rather when that regulation becomes burdensome. He also builds on
the argument against the caricature of free-speech absolutism with his
argument that “what is essential is not that everyone shall speak, but that
everything worth saying shall be said” (p. 25). So free-speech absolutism
calls not for every single person to speak but rather for a diversity of ideas
to be heard.
THREE RECENT CASES: ALVAREZ, 281 CARE AND SBAL 83
All of this sets the stage for a discussion of the three most recent cases
involving political deception, the law, and the First Amendment. The issue
that arises across these three cases is a possibility that Justice Talmadge
lamented in his concurrence in Washington v. 119 Vote No! Committee,
that the Washington Supreme Court would be the first in American his-
tory to recognize “First Amendment protection for calculated lies”
(p. 701). With the three cases discussed in this chapter, Justice Talmadge’s
concerns seem to be borne out and, unfortunately for Meiklejohn, the
caricature of the absolutist position seems to be becoming more of a real-
ity. This is not to say that the three cases discussed here were decided
incorrectly on the specific details in question. It is just to say that, in rec-
ognizing a First Amendment protection for calculated lies, these decisions
do create the possibility for moving closer to an “unlimited license to
talk.”
Even if we were to agree with all three decisions discussed here, we
should also still be concerned about Meiklejohn’s arguments above. First,
we should have some concern about how these decisions contribute to the
caricature of free-speech absolutism. Second, we should think critically
about the idea that a self-correcting marketplace of ideas will be able to
effectively weed out misinformation, disinformation, and even purposeful
and calculated lies. Finally, there is the idea that “everything worth saying
shall be said” and the argument that acts of deception might not fall under
that umbrella of protection. This chapter will discuss these arguments
through an examination of three important, recent cases in political decep-
tion: U.S. v. Alvarez (2012), 281 CARE Committee v. Arneson (2013),
and Susan B. Anthony List v. Driehaus (2016).
U.S. v. Alvarez (2013)

On June 28, 2012, in their rush to get the biggest story of the summer,
CNN and Fox News both reported that the U.S. Supreme Court had
knocked down the individual mandate in the Affordable Care Act (ACA)
(Stelter 2012). The New York Times’ coverage of the coverage later that
day described the coverage on Fox: “The mandate is gone,” Shannon
Bream, a Fox News correspondent, announced at 10:08 a.m. as a graphic
flashed on the screen that called it unconstitutional” (Stelter 2012, para. 3).
One former member of Congress, Jean Schmidt (R-OH), was caught on
video cheering the ruling (Hanrahan 2012). Unfortunately for critics
of the law, the reporting of the Court’s decision was an error. A few
84 R. N. SPICER
inutes later both CNN and Fox corrected the record, reporting that the
m
U.S. Supreme Court had upheld the law, and specifically its individual
mandate provision.
In all of the political excitement, hand wringing, erroneous reporting,
and correcting of the record, many people missed the fact that on that
very day the Court handed down another decision that was just as, per-
haps even more important than, the decision in the ACA case.1 As briefly
discussed earlier in this book, in U.S. v. Alvarez the Court found the Stolen
Valor Act to be unconstitutional. That federal law made it illegal to falsely
take credit for military service and specifically had a provision about the
Medal of Honor. Xavier Alvarez, a small-time elected official from
California falsely took credit for twenty-five years of service in the
U.S. Marine Corps and for being awarded the Medal of Honor, neither of
which was true. He was found guilty of violating the Stolen Valor Act but
won on appeal in the Ninth Circuit and the U.S. Supreme Court on First
Amendment grounds. This section of the chapter is the story of that case.
Of course, Xavier Alvarez did not invent lying about military service.
Just in recent years, politicians from both major parties have been caught
in that particular lie. In 2010, U.S. Senate candidates from both parties
were caught embellishing their military records. Democrat Richard
Blumenthal in Connecticut (Hernandez 2010) and Republican Mark Kirk
in Illinois (Bellandi 2010) both had to apologize for what appeared to be
purposeful misstatements of their records. Lou Cannon recounts how
there were even questions about the veracity of President Reagan’s claims
about his military service. Reagan was said to have told multiple people
that “he had served as a Signal Corps photographer who had filmed the
horrors of the Nazi death camps” at the end of World War II (Cannon
2000, p. 428). Reagan later said that he had never left the country during
the war and claimed to have not told the story (Cannon 2000, p. 429).
Legal proscription of lying about military service might seem like the
kind of thing that would be a cut and dry acceptable thing for the govern-
ment to do. It is pretty straightforward. Either a person did complete the
service they claim to have completed or they did not complete that service;
and it should be fairly easy, in most cases, to verify the veracity of their
claims. However, even with the straightforwardness of this issue, one of
the central concerns behind the U.S. Supreme Court’s decision in U.S. v.
Alvarez is the fear of giving the government the power to decide what is
true and what is false and to then punish falsity.
In Alvarez a U.S. Supreme Court plurality evoked “Oceania’s Ministry

of Truth” from George Orwell’s classic book 1984 (p. 2547). Here the
justices call on the reader’s emotional response to notions of authoritari-
anism, a potential outcome of restrictions on lying, so easily elicited by the
mere mention of Orwell. The Court asks: What could be the potential
outcome of a decision that allows the Stolen Valor Act to stand? The plu-
rality answers, “Permitting the government to declare [lying about mili-
tary service] to be a criminal offense … would endorse government
authority to compile a list of subjects about which false statements are
punishable” (p. 2547).
Being such a recent decision,2 U.S. v. Alvarez is beginning to receive
attention from legal scholars. However, Susan Richey and John Greabe
(2012) argue that it “seems destined nonetheless to enjoy a prominent
spot in the First Amendment firmament” (p. 293). Legal scholars have
voiced both support (Wood 2011; Womack 2013; Priddy 2013) and criti-
cism (Schlect 2011; Krauss 2012; Barnum 2013; Lieffring 2013) for the
Court’s decision. Before it was handed down, Brian Schlect (2011) and
Christina Wells (2012) argued that the Stolen Valor Act (SVA) should be
found unconstitutional. Similarly, Ashley Messenger (2012) writes in
agreement with the Court’s decision on the unconstitutionality of the
SVA. Richard Hasen (2013), while recognizing the problem of false politi-
cal speech, voices concern that false political speech statutes could “be the
subject of manipulation by government authorities who want to favor one
side or the other in an election” (p. 56).
Michael Krauss (2012) connects Alvarez to Snyder v. Phelps (2011), in
which the U.S. Supreme Court held that the First Amendment gave a
religious group the right to protest military funerals. Krauss argues Alvarez
and Phelps were decided incorrectly and thus “exacerbated a misuse of the
First Amendment” (p. 2). Jeffrey Barnum (2013) and Helen Norton
(2013) both make a case for following Justice Breyer’s concurrence to
amend the SVA in light of Alvarez. Richey and Greabe (2012) argue that
Congress should rewrite the SVA to protect the Medal of Honor “as a
collective membership mark by means of trademark infringement legisla-
tion” (p. 293). Any rewriting of the statute could be difficult because, as
Vikram Amar and Alan Brownstein (2013) argue, Alvarez failed “to pro-
vide a clear answer to the key question,” which was “How should the First
Amendment treat factual lies?” (p. 498). Their contention is that taking
the plurality decision, the concurrence, and the dissenting opinions
together “we have no clear resolution of that question” (p. 10).
86 R. N. SPICER
The Harvard Law Review (2013) says that before Alvarez the “general
constitutional status of false statements of fact” remained “murky at best.”
(p. 2113). Unfortunately, according to Amar and Brownstein, confusion
about the matter seems to persist. Staci Lieffring (2013) argues that after
Alvarez it “seems likely that the Court would strike down any attempt to
regulate false, non-defamatory campaign speech” (p. 1061). The problem
is that, if we concede Gen. William Suter’s (2012) argument that “if we
put all liars in prison there would be no bed space in prison” (p. 248),
political deception is harmful in many ways and “low-value lies … under-
mine First Amendment interests” (Barnum, p. 163). Protecting such
deception under the First Amendment, in some ways, does more to harm
than help freedom of speech. The problem of political deception requires
some consequences beyond counterspeech in the marketplace of ideas.
It is useful to reiterate here how this case started with a public official,
Xavier Alvarez, who in a public speech falsely claimed to have served in the
military and to have won the Medal of Honor. He was found guilty of
violating section (b) of the federal statute known as the Stolen Valor Act,
which made it illegal to make such false claims. Alvarez appealed his con-
viction to the Ninth U.S. Circuit Court of Appeals who overturned his
conviction and found the statute to be an unconstitutional violation of the
First Amendment. The federal government appealed this decision to the
U.S. Supreme Court only to have the high Court affirm that decision.3
The Ninth Circuit court found the Stolen Valor Act proscribed a class
of speech that was “not sufficiently confined to fit among the narrow cat-
egories of false speech previously held to be beyond the First Amendment’s
protective sweep” (p. 1200). While the Ninth Circuit recognized that
courts have said that certain forms of false speech do not enjoy constitu-
tional protection, “All previous circumstances in which lies have been
found proscribable involve not just knowing falsity, but additional ele-
ments that serve to narrow what speech may be punished” (p. 1200).4 The
court found this act to be a content-based regulation that failed to meet
the standard of strict scrutiny and declared it “not narrowly tailored to
achieving a compelling government interest” (p. 1200). Conversely, the
government, and Judge Jay Bybee’s dissent in the Ninth Circuit’s deci-
sion, argued that the speech regulated by the Stolen Valor Act “fits within
those ‘well-defined’ and ‘narrowly limited’ classes of speech that are his-
torically unprotected by the First Amendment” (p. 1202). The govern-
ment appealed to the U.S. Supreme Court, attempting to protect the
constitutionality of the statute.
The Ninth Circuit’s decision was upheld by a plurality in the

U.S. Supreme Court. That decision in Alvarez started by establishing that
the Court, with a few exceptions, has not allowed content-based restric-
tions on speech. The exceptions of most importance for this chapter were
speech acts such as “fighting words,” defamation, and fraud (p. 2544).
The plurality held that “false statements have no value and hence no First
Amendment protection” but stated that the Court has only allowed the
restriction of such speech in rare instances such as defamation cases
(pp. 2544–2545). The final point of importance to the discussion was that
the Court has “not confronted a measure, like the Stolen Valor Act, that
targets falsity and nothing more” (p. 2545).
These last two points, the narrow category of speech that can be pro-
scribed and the fact that the Court had never before been confronted with
a question like the one posed in Alvarez, can be viewed in tandem. In
making the argument about the content-based exceptions under the First
Amendment, the plurality says lying alone cannot be proscribed and that
the Court has never had to rule on a law with such a restriction. There
must be some other ill carried along with the lie that creates a compelling
governmental interest in restriction. The plurality uses the example of per-
jury as a lie that the government may punish. Perjury is illegal not only
because it is false but also “because it can cause a court to render a ‘judg-
ment not resting on truth’” (p. 2546). Applying the reasoning of the plu-
rality opinion, the Stolen Valor Act could have been saved by adding three
words: “for personal gain.” The plurality in Alvarez held that allowing
Stolen Valor’s restriction “absent any evidence that the speech was used to
gain any material advantage” would give the government “unprece-
dented” and “broad censorial power” (p. 2548). Following this logic, if
the legislation had been written to punish taking credit for unearned mili-
tary honors in order to enhance job qualifications or be elected to office,
the legislation might have survived constitutional scrutiny.5
Similarly, one could turn Justice Kennedy’s words toward the cause of
a truth-in-political-advertising law. Kennedy wrote that perjury under-
mines a court’s ability to render a decision based on truth. Lying in cam-
paigns does the same to the public’s ability to render a vote based on truth.
Williams (2007) argues, “Implicit in the right to vote is the right to cast
that vote based on accurate information” (p. 340). The electoral process
is not only a competition between ideas; it is a decision about to whom the
power to govern should be given. How can the claim to power be legiti-
mate if that decision is not based on truth? When a grand jury, twelve
88 R. N. SPICER
c itizens in a juror’s box, or a judge or justice is given false information, and

the speaker of that false information gives it knowingly with the intent of
impeding the justice system, this action is acknowledged by the court as
criminally punishable. Why is the same not true of knowing falsity in the
court of public opinion? As Williams says, “These are more than just plati-
tudes. The essence of democracy itself presumes an electorate guided by
accurate information and participating in rational, thoughtful decision
making” (p. 341).
What is most problematic about the plurality decision in Alvarez is the
holding that, contrary to the contentions of Bybee and the U.S. govern-
ment, Stolen Valor was not narrowly tailored. Even advocates of truth-in-
advertising laws must admit some concern about the idea of giving any
government the power to judge what is true and what is false. Allusions to
Orwell may be hyperbolic at times, but there should be a real concern
about such governmental judgments. It is precisely this concern that drove
the U.S. Supreme Court and the Ninth Circuit to take speech they
acknowledged was demonstrably false and to give it First Amendment
protection. As a contrasting pair of examples, during his first campaign
and throughout his time in office many of President Barack Obama’s crit-
ics would commonly claim that he was a socialist. This is a subjective mat-
ter of interpretation upon which most people would not want the U.S.
government rendering truth declarations. Conversely, a person either won
the Medal of Honor or did not. The truth of this statement is not a matter
of subjective judgment or open to the manipulation of data.
Alvarez thus becomes part of what Bybee, in his Ninth Circuit dissent,
sees as a collection of contradictory conclusions in Supreme Court First
Amendment jurisprudence. Bybee cites eight examples of decisions in
which the Court made some variation on the statement that false speech
does not enjoy First Amendment protection.6 Following Bybee’s point,
there seems to be an equal and opposite situation in which no matter what
the facts of a case are, and even though the Court has said knowingly false
statements are not protected, the government cannot seem to be able to
win such a case. Writing in a tone that one could describe as frustrated,
similar to that in Talmadge’s concurrence in 119 Vote No!, Bybee argues
the Ninth Circuit came to a “remarkable” and “faulty principle” that
despite citing the Supreme Court’s many decisions arguing that know-
ingly false statements do not enjoy constitutional protection, “the major-
ity holds that Alvarez’s knowingly false statement of fact is entitled to full
constitutional protection” (p. 1219).
Bybee proceeds to make an important distinction between protected

and unprotected false statements by noting the Supreme Court made an
exception for some forms of protected false speech. Citing New York Times
v Sullivan Bybee argues that erroneous speech that is critical of a public
official’s public conduct is protected because of an interest in protecting
political debate and preventing self-censorship of criticism of public offi-
cials that might be created by a fear of lawsuits or governmental punish-
ment. Bybee’s point here offers an important and useful distinction in the
regulation of different kinds of political speech.
In The New York Times case, the Supreme Court handed down a ruling
that protected the rights of citizens to criticize the official conduct of pub-
lic officials, even if that speech contains some erroneous statements. This
is generally a good thing. Sometimes in political speech, and in other types
of expression, mistakes are made and sometimes speech that is factually
false is disseminated. However, the Alvarez case is not about citizen speech
about the public conduct of public officials. This case is about a public
official knowingly lying about his record in an attempt to improve his pub-
lic standing and thus his electoral potential. There are good arguments to
be made in favor of public officials lying to the public, chief among them
being protection for the execution of national security measures, but there
are no good arguments in favor of a public official being legally allowed to
lie for no reason other than to improve his public image.
There is no way in this case to plausibly argue that Alvarez simply mis-
spoke. Both the U.S. Supreme Court and the Ninth Circuit, even as they
give Alvarez’s speech First Amendment protection, describe that speech as
a purposeful misrepresentation. It is difficult to imagine a speech act that
more readily fits the description of a “false statement of fact,” that
“interfere[s] with the truth-seeking function of the marketplace of ideas,”
(Hustler Magazine v. Falwell 1988, p. 52) and that “harm[s] both the
subject of the falsehood and the readers” (Keeton v. Hustler Magazine
1984, p. 776) and that should not have First Amendment protection. The
U.S. Supreme Court should have recognized a difference between those
speech acts by citizens criticizing a public official, however unfairly, and a
false statement made by a public official explicitly intended to mislead the
public. To place these two forms of speech under the same protection of
the First Amendment is an error of both a legal and political nature.
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281 CARE Committee v. Arneson (2013)

This error has ramifications well beyond an incident with a little-known,
small-town politician in California who lied about military service. Waiting
in the wings behind Alvarez was another case, 281 CARE Committee v.
Arneson (2013), which involved Minnesota § 211.B06 (see Appendix), a
statute making it illegal to prepare or distribute campaign material con-
taining false information about a candidate or the effects of a ballot ques-
tion. The 281 CARE case is important for two reasons. The first reason is
that, after the Eighth Circuit Court of Appeals found the statute to be
unconstitutional, Arneson, the County Attorney for Blue Earth County,
Minnesota, appealed to the U.S. Supreme Court. In its response to the
appeal, 281 CARE Committee cited the Ninth Circuit decision in Alvarez
as a key point in its argument against Arneson’s case.7 The second is that
the statute in question is an amended version of a statute that the Minnesota
Court of Appeals found unconstitutional in Minnesota v. Jude (1996).
The 281 CARE case centers around a proposed 2007 school funding
ballot initiative in the Robbinsdale Public School District of Minnesota.
The 281 CARE Committee opposed this initiative and the initiative lost.
The superintendent of the district said in an interview with statewide
media that the district was “exploring ways to deal with the false informa-
tion [281 CARE Committee] spread about the initiative” (281 CARE v.
Arneson 2011, p. 626). 281 CARE interpreted this to indicate a threat of
litigation under § 211.B06 and claimed this led the organization to not
participate in a campaign against another ballot initiative in 2008.
In order to understand what happened in the 281 CARE case one must
first look at Minnesota v. Jude (1996), because the statute addressed in 281
CARE is an amended version of a statute addressed in Jude. In that case
Thaddeus Victor Jude was a Republican candidate for the U.S. House seat
in the 6th Congressional District of Minnesota in 1994 running against
incumbent Democrat William Luther. During that election season, Jude’s
campaign ran TV ads claiming that, when they were both in the Minnesota
State Senate, Luther blocked legislation Jude had authored that would
have ended a Minnesota prison furlough program. This accusation was
made specifically in the context of one case in which a defendant was out
on furlough and sexually assaulted a woman and her two daughters. The
ad claimed that had Luther not blocked Jude’s legislation the aforemen-
tioned crime would not have happened.
Jude lost the election and Luther was re-elected to his house seat. After
the election Jude and his campaign manager, Steven Knuth, faced charges
of violating Minnesota § 211B.06, the Minnesota Fair Campaign Practices
Act, a law prohibiting false campaign speech. Contrary to the claims made
in Jude’s ad, the statute would not have applied to this case because it
went into effect in 1987 and applied only to crimes committed after that
year. The sexual assaults were committed in 1983, which means the ad
gave voters the false impression that Luther’s vote led directly, or at least
indirectly, to the terrible crimes described above. After a grand jury indict-
ment, Jude and Knuth moved to dismiss on the grounds that § 211B.06
was unconstitutional. The trial court agreed, and the state appealed to the
Minnesota Court of Appeals.
That court affirmed the decision arguing that the “trial court con-
cluded that the extension of criminal liability to those who have only a
‘reason to believe’ their campaign material is false makes the statute
unconstitutionally overbroad. We agree” (Minnesota v. Jude 1996, p. 753).
In 1998, after the Jude decision, Minnesota amended the statute to apply
in cases where someone disseminates information “the person knows is
false or communicates to others with reckless disregard of whether it is
false” (False Political and Campaign Material 1998). The amended statute
stood unchallenged since being amended until coming before the courts
in 281 CARE.
The Eighth Circuit Court of Appeals found that the statute posed a
potential chilling effect on 281 CARE’s speech because, although the
group was not necessarily planning on engaging in speech that would vio-
late § 211.B06, it was planning to “engage in conduct that could reason-
ably be interpreted as making false statements with reckless disregard for
the truth.” Therefore, it had “reasonable cause to fear” being charged
with violation of the law (281 CARE v. Arneson 2011, p. 628). The court
thus argued, “the likelihood of inadvertently or negligently making false
statements is sufficient to establish a reasonable fear of prosecution under
the statute” (p. 629).
The Eighth Circuit argued that the fear of prosecution under § 211.
B06 would have a chilling effect on the 281 CARE Committee’s right to
free speech. While the court is making a chilling-effect argument they are
not making a very good one. For example, the court holds:
[281 CARE] allege a desire to use political rhetoric, to exaggerate, and to

make arguments that are not grounded in facts. … The tactics plaintiffs have
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clearly alleged that they want to use come close enough to speaking with
reckless disregard for the truth that we can say it would be objectively rea-
sonable for plaintiffs to modify those tactics in light of potential conse-
quences from section 211.B06. (p. 630)
There is something strange about this argument. First, if someone openly

states they plan to use exaggeration as a rhetorical technique, they are
explicitly stating that they plan to be dishonest. It would seem like this
kind of dishonesty, even if it is not an overt lie, would be the kind of thing
that we would want to discourage in our political discourse.
An exaggeration in the context of a political campaign surrounding a
ballot initiative could be either an overstatement or understatement of the
potential impact of a policy change. For example, an advocacy group
might say that voting for a particular ballot initiative would increase your
property taxes by an average of §13,000 annually. If the real number is an
average increase of §130 annually the advocates have correctly told the
voters that taxes are going to go up, but the incorrect numbers constitute
an exaggeration that could be described as a lie and almost certainly would
alter some voters’ decisions on the initiative.
What makes the above passage from the Eighth Circuit troublesome is
that it is a sort of perversion of the chilling-effect argument. The problem
is not necessarily arguing that false advertising laws in politics are a gov-
ernment overreach. There is definitely a legitimate concern. The problem
is why we are concerned about that overreach. The argument should be
that the chilling effect is problematic because in the process of trying to do
something good (e.g. stop politicians from lying to the public) we end up
harming free speech because someone who has something true to say
might remain silent for fear of inadvertently making a false statement. The
First Amendment should protect inadvertently false statements because, as
John Stuart Mill (1961) argues, there is a “clearer perception and livelier
impression of truth, produced by its collision with error” (p. 269).
The problem with what the Eight Circuit is saying here is that they are
dangerously close to saying that deceptive practices, engaged in with the
malice of forethought and intent to mislead the public, should be pro-
tected under the First Amendment. Again, this is one more statement that
contrasts with the Gertz (1974) case where the U.S. Supreme Court
argued “there is no constitutional value in false statements of fact. Neither
the intentional lie nor the careless error materially advances society’s
interest in ‘uninhibited, robust, and wide-open’ debate on public issues”
(p. 340).
The Eighth Circuit seems to be saying that 281 CARE Committee

openly intends to be deceptive in their communication and we need to
make sure the First Amendment protects that purposeful deception. It
suggests that 281 CARE Committee, like the Democratic Party in the
Tomei case, might be trying “to deprive voters of a free choice by diverting
the intended exercise of the franchise to an unintended result” (Tomei v.
Finley 1981, p. 698). The court also notes that 281 CARE Committee has
been the target of previous accusations of violating § 211.B06. In the end,
the Eighth Circuit acts as an enabler to this behavior, finding that “the
Supreme Court has never placed knowingly false campaign speech cate-
gorically outside the protection of the First Amendment” (pp. 633–634).
While the Eighth Circuit did state that there were constitutional con-
cerns surrounding § 211.B06, they also said there needed to be more
development of the arguments about whether the statute passed strict
scrutiny. The court thus declined to rule on the constitutionality of the
statute and remanded the case to the district court. The 281 CARE
Committee appealed to the U.S. Supreme Court to answer the question.
After the Alvarez decision the U.S. Supreme Court denied certiorari for
the 281 CARE case and remanded it to the U.S. District Court of
Minnesota. Given the Alvarez decision, one might have expected the
court to find § 211.B06 unconstitutional, but surprisingly it ruled in favor
of Arneson and found the statute to be constitutional. Arneson argued
that, applying the standard set by Marks v. United States,8 when a plurality
decision such as Alvarez is used as a precedent, because it is a plurality and
not a majority decision, the plurality from said precedent with a narrower
standard of judgment should be applied to subsequent cases. In this case,
the narrower standard, or controlling opinion, would be the concurrence
from Justices Stephen Breyer and Elena Kagan. That concurrence in
Alvarez argued that intermediate scrutiny, not strict scrutiny, should apply
to false speech statutes. This is because while false speech has “less social
value than other types of speech” it could still “serve useful human objec-
tives” (281 CARE v. Arneson 2013, p. 10). Thus, using Alvarez as a prec-
edent for finding on the constitutionality of Minn. Stat. § 211B.06 would
require “a ‘proportionality’ analysis in which suitably narrow restrictions
of false speech would survive constitutional challenges” (p. 10).
Noting that it needed to apply only intermediate scrutiny to the statute,
the court nevertheless applied strict scrutiny, arguing that if the law met
the higher standard, it certainly would meet the lower one.9 The district
court held that Arneson demonstrated a compelling state interest in
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“limiting the dissemination of knowingly or recklessly false statements

about the effects of ballot initiatives” (281 CARE v. Arneson 2013, p. 16)
and showed that the statute in question addressed that interest (p. 19).
The court also found the statute to be narrowly tailored (p. 21).
After this decision, 281 CARE Committee appealed to the U.S. Court
of Appeals for the Eighth District. That court addressed (1) whether 281
CARE Committee had standing to bring their complaint, (2) the proper
level of scrutiny to apply to the analysis of the law, (3) whether it was
proper for legal regulation of political speech, specifically false political
speech, and (4) the constitutionality of the Minnesota statute. Ultimately,
the court ended up siding with 281 CARE Committee.
First, there was the question of whether 281 CARE Committee had
standing to bring a challenge to the law. On this count the court argued
that 281 CARE Committee’s decision to avoid engaging in speaking out
on future issues “was objectively reasonable given a credible threat of
prosecution and that the conduct alleged by Appellants in which they wish
to engage could fall within the prohibition of § 211B.06” (p. 8). In find-
ing that 281 CARE Committee had standing to challenge the law, the
court cites the decision in the SBAL case, which will be discussed in the
next section of this chapter. There the U.S. Supreme Court found that a
fear of the threat of a political opponent filing a complaint was enough to
constitute a chilling effect on speech (SBAL 2014, pp. 2345–2347).
In dealing with the district court’s citing of Alvarez and their decision
to use strict scrutiny rather than intermediate scrutiny, the Eighth Circuit
ends up coming to the same conclusion but for different reasons and their
distinction is important. The Eighth Circuit ultimately decides that strict
scrutiny should be used in this but that Alvarez is not the reason why,
because that case dealt with general concept of false speech, not false polit-
ical speech. “Alvarez,” the Eighth Circuit says, “is not the ground upon
which we tread” (p. 13). On the question of scrutiny the Eighth Circuit
argues that because political speech “occupies the core of the protection
afforded by the First Amendment, we apply strict scrutiny to legislation
attempting to regulate it … because Alvarez does not alter the landscape
on this issue, the scrutiny directed in 281 Care Committee I endures”
(p. 14).
Ultimately, the Eighth Circuit found § 211.B06 to be unconstitutional.
After the case, in his analysis for The Washington Post, legal scholar Eugene
Volokh argued that one of the problems with laws like the one in question
in 281 CARE Committee was that they could be used as political weapons.
A candidate’s political opponents could easily file complaints with

Minnesota Office of Administrative Hearings (OAH) and do so at a point
in the campaign that would be most damaging. Opponents would wait
until close to the end of the campaign to file the complaint. This places the
candidate in a position where they are forced to use time and resources
responding to an official complaint. It also means that, since it is late in the
campaign, the candidate is left with an insufficient amount of time to fight
back in the court of public opinion. In other words, even if the filed com-
plaint is found to be baseless, “the damage is inflicted at the point of fil-
ing” (Volokh 2014, para. 16).
In their 2013 decision in the 281 CARE Committee case, the
U.S. District Court of Minnesota made two interesting and relevant
points; although after the Eighth Circuit’s decision they are also some-
what moot points. First, it found that while the statute did restrict political
participants from knowingly making false statements about the effects of a
ballot initiative, it “does nothing to restrict a person from disparaging the
government using false statements” (281 CARE v. Arneson 2013, p. 22).
The court also takes a small but important step toward pushing back
against the marketplace-of-ideas argument. It concedes that for “more
fiercely contested ballot measures” counterspeech may be enough to solve
the problem of lies and misinformation. However, “for ballot measures
regarding less controversial topics, or regarding local issues, counter-
speech may not always suffice or even exist at all” (p. 29). This concern is
supported by the Project for Excellence in Journalism’s 2013 State of the
News Media report that found that from 2005 to 2012 the coverage of
politics and government in local news had been reduced by 50 percent
(Jurkowitz et al. 2013, para. 60). In other words, the market does not
always work itself out, sometimes the market fails to provide information
or provides it inadequately, and sometimes some government action is
necessary to remedy the problem. One way in which government can act
to remedy the problem is through an election commission such as the one
in Ohio. This role of government is the central question of the Driehaus
case.
Susan B. Anthony List v. Driehaus (2016)

In Susan B. Anthony List v. Driehaus (2013) an advocacy group engaged
in speech that showed how deception is not always so clear-cut but often
a matter of interpreting the meaning of words and what a law actually
96 R. N. SPICER
does. The case began when an anti-abortion advocacy group called the
Susan B. Anthony List (SBAL) attempted to purchase space for a political
advertisement on a billboard owned by Lamar Advertising in Ohio’s First
Congressional District during the 2010 congressional midterm election.
The text of the ad contained the claim that then-incumbent Rep. Steven
Driehaus had “voted FOR taxpayer-funded abortions” (2011a, p. 414).
This claim referred to Driehaus’s vote in favor of the Patient Protection
and Affordable Care Act (PPACA).10 According to the history in the opin-
ion of the U.S. District Court for the Southern District of Ohio, Western
Division, Driehaus’s lawyers “met with Lamar, and Lamar subsequently
agreed not to post the Ad on its billboards” (2011a, p. 414). SBAL dis-
seminated the message in other media and Driehaus filed a complaint with
the Ohio Election Commission arguing the claim in the SBAL ad was false
and violated Ohio Rev. Code § 3517.21(B)(9) and (10) (see Appendix).
Section (B)(9) bans false statements about a candidate’s voting record.
Section (B)(10) bans general false statements about a candidate that are
made knowingly or with reckless disregard for the truth and are intended
to influence the outcome of an election.
After some legal wrangling, both parties agreed to postpone having a
hearing before the Ohio Election Commission. Driehaus went on to lose
re-election and dropped his complaint against SBAL. However, this was
not the end of the road for this case. In December 2010 another political
organization, the Coalition Opposed to Additional Spending and Taxes
(COAST), joined by SBAL, filed a Second Amended Complaint alleging
that their free-speech rights had been chilled by the Driehaus lawsuit and
that the Ohio statutes in question were unconstitutional violations of the
First Amendment. COAST claimed it was similar to 281 CARE Committee
in its lawsuit, that it refrained from sending an issue advocacy email critical
of Driehaus because it was “fearful of finding itself subject to the same
fate” as the SBA List (i.e. dragged before an inquisitional government
agency who will sit in judgment of the truth of political speech and being
subjected to extensive and intrusive discovery) (2011a, pp. 415–416).
COAST claimed this not only infringed upon its ability to criticize
Driehaus in his bid for re-election, but also infringed upon its ability to
criticize candidates in the future in federal, state, and local elections.
Simply put, COAST was arguing, like 281 CARE Committee, that it was
being subjected to a chilling effect. The organization claimed that it was
not only anxious about future speech but also, at the time, withheld other
issue advocacy emails about the cost of a local streetcar project in Cincinnati
for fear of being brought before the Ohio Elections Commission on simi-
lar charges.11
Unfortunately for COAST the U.S. District Court for the Southern
District of Ohio, Western Division held it could not address mere hypo-
thetical complaints brought against it by a third party in response to hypo-
thetical statements COAST might plan on making during a campaign
(2011a, p. 420). The court ruled that because the Ohio Election
Commission could investigate only someone against whom a third party
filed a complaint, the commission has no power to prosecute, and since no
such complaint had been filed against COAST, the court could not review
its complaint. Simply put, the court held that the “speculative threat of
future, groundless action is insufficient for COAST to establish standing
to proceed” (2011a, p. 422). In summary, the Southern District Ohio
Court dismissed the case because, it held, COAST did not have standing
to bring the lawsuit in the first place. Thus, the court did not address the
question of the law’s constitutionality. They did, however, make some
problematic arguments that need to be addressed here.
Like the argument in the 281 CARE Committee case, the court’s argu-
ment in the Driehaus case has some logical problems in its free-speech and
chilling-effect arguments. The court’s response to COAST finds that the
group claims that (1) its speech is true (therefore it does not violate the
statute) but (2) at the same time the statute is a threat to their free-speech
rights, because of the fear that it may be used to punish the group for
engaging in the very speech it claims on its face does not violate the statute
(2011a, p. 422). There is a strange logic in the chilling-effect argument
used by 281 CARE, COAST, and SBAL; it is a strange logic that can be
seen in, and should call into question, the chilling-effect argument more
generally. This argument amounts to saying that one’s actions do not vio-
late a statute but that one is nevertheless afraid of being accused of violat-
ing said statute.
There also seems to be an element of judicial activism at work for the
groups in these cases. For one thing, as court documents show, Driehaus
lost his bid for re-election on November 4, 2010, and subsequently “filed
a motion to withdraw his complaints” with the Ohio Election Commission
(OEC) on November 12, 2010. On December 2, 2010, the OEC granted
Driehaus’s motion and terminated the proceedings against SBAL. This
should have been the end of the issue. Driehaus lost his race, and he
dropped his complaint. It seems that legal proceedings should have
stopped at that point. However, SBAL and COAST decided to challenge
98 R. N. SPICER
the constitutionality of the Ohio statute. This also resulted in Driehaus

launching a countersuit for defamation.
Driehaus’s countersuit against SBAL cited five separate statements in
which the group claimed Driehaus “voted FOR tax-payer funded abor-
tion” (2011b, p. 426). In his countersuit against SBAL, Driehaus claimed
that not only was it false to state he had voted for tax-payer funded abor-
tions but that he had been “among the members of Congress whose
efforts ensured” there would be no tax-payer funding of abortion in the
Affordable Care Act (SBAL 2010, p. 8). Driehaus’s countersuit argued
that SBAL “falsely characterized him as voting for a bill that includes
taxpayer-funding for abortions, when the SBA List knows the exact oppo-
site to be true” (SBAL 2010, p. 8). In a claim that sounds similar to the
arguments made by the Tomei court, Driehaus’s suit claimed “SBA List’s
disinformation campaign against Mr. Driehaus … left voters misinformed
at a critical period in the campaign and irreparably damaged his reputation
in the community” (SBAL 2010, p. 8). Where the U.S. Eighth Circuit
Court of Appeals in the 281 CARE Committee case from 2011 seemed
intent on enabling deception, the Driehaus court was willing to hear the
countersuit for defamation and at least allow for the possibility that there
might be some accountability if it was found that SBAL had done some-
thing wrong.
The court cited as a flaw in SBAL’s argument for dismissal of Driehaus’s
counterclaim for defamation contradictions between the content of
SBAL’s campaign materials and its court defense of those materials. On
the one hand, SBAL claimed the phrase “‘taxpayer-funded abortion’ is an
ambiguous term without common meaning” (SBAL 2011b, p. 429). The
court found this argument to be implausible on two grounds. First, taking
a somewhat mocking tone, the court held it is “nonsensical to find that a
nationally recognized organization would consistently use ambiguous
terms to convey its message” (2011b, p. 429). In other words, the court
was skeptical of the idea that an established, nationally known political
advocacy organization would not know how to distribute clear messages
to achieve their goals in persuading the public. The U.S. District Court for
the Southern District of Ohio, Western Division also held that there is, in
their opinion, actually very little ambiguity in the phrase “taxpayer-funded
abortion.” It devoted multiple paragraphs to explaining why this argu-
ment is unpersuasive, stating there is a fairly clear definition: “money
derived from tax revenues that had been appropriated by law to pay for
abortions” (2011b, p. 429). The court also found the phrase to not be as
ambiguous as SBAL claimed because a Google search on it returned

“approximately 536,000 results, which further supports a finding that the
phrase is commonly used” (2011b, p. 429).
The second problem the court saw with SBAL’s argument was its
repeated use of the words “fact” and “truth” throughout its literature. In
its criticism of Driehaus it stated, “it is a fact” that Driehaus voted for
taxpayer-funded abortion. The SBAL claimed it wanted Driehaus’s “con-
stituents [to] know the truth of his vote” (2011b, p. 429). In rejecting
SBAL’s request for summary judgment against Driehaus’s claim for defa-
mation, the court found that the use of such phrases seemed to contradict
the claim that SBAL was using purposefully ambiguous terms. The court
also noted that even though SBAL used the words “fact” and “truth” it
failed to identify any provision in the PPACA that provided any funding
for abortion (2011b, p. 435). One problem with SBAL’s argument the
court did not point out is that the use of ambiguity, which might also be
describe as “spin” in common political parlance, would seem to indicate
an intent to mislead. SBAL claimed it was using a term it felt was ambigu-
ous and combining it with the words “truth” and “fact.” It is difficult to
accept the idea that a message can simultaneously be ambiguous and a
fact. If something is a fact it would indicate that ambiguity has been
removed from the situation.
This indicates two possibilities. First, SBAL knew what it was saying
was not necessarily a fact or, at the very least, knew it was overselling its
claims to the truth. The second possibility is that SBAL thought what it
was saying was in fact not ambiguous and it was merely claiming ambiguity
in an attempt to win the lawsuit. It is impossible to read the minds of the
group members or their lawyers and thus impossible to say which of these
scenarios is the case. It is, however, possible to say SBAL’s arguments were
flawed and that the court is correct in pointing out those flaws.
There were two major developments in this case after the 2011 decision
in the District Court in Ohio. Unfortunately, just as the Affordable Care
Act drew attention away from the Alvarez decision, this case received very
little attention in the media despite the fact that it is going to have an
important impact on American political discourse. The first important
development for this case can be summed up nicely in the late U.S. Supreme
Court Justice Antonin Scalia’s statement to SBAL: “You’re not asking us
to resolve the constitutional question, just the question of whether you
can raise the constitutional question” (Lithwick 2014, para. 5).
100 R. N. SPICER
In other words, the U.S. Supreme Court’s contribution here was just

to address whether SBAL had standing to bring their case against Ohio
Rev. Code § 3517.21. Long story short, the Court ruled that they did.
Their decision stated that they have “permitted pre-enforcement review
under circumstances that render the threatened enforcement sufficiently
imminent” (p. 2342). This means that the Court would allow someone to
challenge a law in situations where there is a clear and looming possibility
that the party in question might be prosecuted under a law that could
potentially violate their constitutional rights. In this case, SBAL would
argue that the First Amendment right to freedom of speech is being vio-
lated via their fear of being prosecuted under a law that is, in their minds,
unconstitutional.
Thus in June 2014, the U.S. Supreme Court ruled that SBAL could, as
Justice Scalia said, “raise the constitutional question,” sending the case
back to the Sixth Circuit. So the lower court was faced with the question
of whether the Ohio Rev. Code § 3517.21 could withstand constitutional
scrutiny. Given the decision in Alvarez it is not difficult to guess where the
court would land on that question. However, the court begins their analy-
sis of that question with a complicating factor. Were they required to fol-
low Alvarez or their own precedent in Pestrak v. Ohio Elections Commission
(1991)?
In the Pestrak case Walter Pestrak was running for the Democratic
Party’s nomination for county commissioner in his home county. During
the course of that campaign he distributed campaign literature alleging
that his opponent, the incumbent Anthony Latell, had engaged in “illegal
acts” (Pestrak, p. 575). In response his opponent filed a complaint with
the OEC under Ohio Rev. Code § 3599.091(B)(10), a statute that was
amended and renamed years after this case. Under that statute the OEC
had four functions. In response to a file complaint they could (1) impose
a fine on the subject of the complaint, (2) produce a cease-and-desist
order requiring the subject of the complaint to stop engaging in the alleg-
edly false communication, (3) make a referral to a county attorney for
criminal prosecution if a crime was committed, or (4) make a statement
proclaiming the truth or falsity of the statement that caused the complaint
(Williams 2007, p. 343).
In response to Latell’s complaint the OEC found that Pestrak had
made a false statement and “recommended criminal prosecution, although
no prosecution was brought” (Pestrak 1991, p. 575). The OEC’s recom-
mendation was released one day before the election, which Pestrak went
on to lose. Pestrak sued the commission for, as he alleged, damaging his

campaign. He also challenged the constitutionality of the Ohio statute and
the commission’s work. Ultimately, Pestrak won a partial victory in the
Sixth Circuit Court of Appeals. The court found that the first two func-
tions of the OEC were unconstitutional but the third and fourth were
acceptable.
So in Pestrak the Sixth Circuit held that “the Ohio Elections Commission
did not violate the first amendment simply because it is a publicly created
commission with a certain statutory mandate” (p. 579). However, in the
SBAL case they found that their precedent would not hold up, given deci-
sions the U.S. Supreme Court had made in the intervening years. Most
important of all, the court said that the Alvarez decision “abrogates
Pestrak’s holding that knowing false speech merits no constitutional pro-
tection” (SBAL 2016, p. 471). They added that the Alvarez decision “fur-
ther repudiates Pestrak’s assumption that the government can selectively
regulate false statements on certain topics” (p. 472). So Alvarez, the Sixth
Circuit found, abrogated Pestrak.
The Sixth Circuit cites a number of reasons for siding with SBAL in
their challenge of the OEC. There is the inefficiency of the OEC’s han-
dling of complaints; a process that the court says could leave some com-
plaints filed outside of a certain timeline “free to linger for six months”
(p. 474). The court also says that the OEC has no method in place to
“screen out frivolous complaints prior to a probable cause hearing”
(p. 474). Even someone who supports the creation of such an elections
commission would have to admit that these two things taken together
make for a problematic situation. Given this system, political activists
could use an ethics complaint as a political weapon where the real harm to
a political opponent is done not in winning in a commission hearing but
rather simply making the complaint itself in order to do damage to some-
one in their standing in public opinion.
The court also found that Ohio’s law applied broadly to all false state-
ments, which violated the precedent set in Alvarez. Ultimately, the last
paragraph of the court’s decision sums up the problem they saw with the
law:
Ohio’s political false-statements laws are content-based restrictions target-

ing core political speech that are not narrowly tailored to serve the state’s
admittedly compelling interest in conducting fair elections. Accordingly, we
affirm the district court’s judgment finding the laws unconstitutional.
(p. 476)
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With that, the Ohio law’s fate was sealed. It is somewhat odd that in this
case that started with the defeated congressman Steven Driehaus, Driehaus
almost became an afterthought. His name was only present because he
was the subject of the speech in question. He basically became the vehicle
for SBAL to challenge, and knock down, a law that they saw as unconsti-
tutional. In the end the courts reflected an argument Dahlia Lithwick
(2014) made in her discussion of the U.S. Supreme Court’s handling of
the SBAL case: “the only thing scarier than truthiness is the prospect of an
elected Ministry of Truthiness” (para. 18).
Alvarez, Driehaus, and SBAL: Looking Forward

In concluding this chapter it is tempting to simply copy and paste Justice
Samuel Alito’s dissent from Alvarez onto these pages. Alito, joined by
justices Thomas and Scalia, argues that the Court made the wrong deci-
sion in Alvarez for quite a few reasons. Foremost among those reasons is
the damage that will be done to military honors, and those who have
legitimately won them, if anyone can freely take credit for having been
awarded something they did not earn, especially the Medal of Honor. This
alone should be enough for anyone to find Alvarez to be a problematic
decision.
However, that reason is not alone in being cause for concern. Alito
argues, “Time and again, this Court has recognized that as a general mat-
ter false factual statements possess no intrinsic First Amendment value”
(p. 2560). He proceeds to list a series of decisions where the Court has
made statements on the subject of false statements. Among others, he cites
Gertz v. Welch where the Court said that there is “no constitutional value
in false statements of fact” (p. 340). There is also Garrison v. Louisiana
(1964) where the court said, “the knowingly false statement and the false
statement made with reckless disregard of the truth, do not enjoy consti-
tutional protection” (p. 75).
Alito goes on to lament Alvarez’s legal brief, which he says, “features a
veritable paean to lying. According to [Alvarez], his lie about the Medal of
Honor was nothing out of the ordinary for twenty-first century Americans.
‘Everyone lies,’ he says” (p. 2563). This is a fairly depressing representa-
tion of humanity, and the collective character of American citizens, from
Alvarez. His defense of his actions could also be described as disingenuous
“whataboutism.” Garry Kasparov (2016) defines this as a Soviet propa-
ganda technique where criticism is deflected through recalling something
bad that someone else had done (in the case of the Soviets, when accused
of some misdeed they would say, “what about when the United States did
such and such?”). Alvarez, in his argument against the constitutionality of
the Stolen Valor Act, is basically saying: “You want to punish me for lying
about military service I didn’t perform? What about all of the lies that
everyone else tells every day?”
While Alito is dissenting in this case, and arguing for saving Stolen
Valor, he does open up the possibility that not all false speech requires
government proscription. At this point in his argument Alito concedes,
“some false factual statements [fall] within the protection of the First
Amendment, but this is justified in order to prevent the chilling of other,
valuable speech” (pp. 2563–2564). In essence he is allowing for the fact
that there is a potential chilling effect. He cites New York Times v. Sullivan,
Hustler v. Falwell, and Garrison v. Louisiana, among others, to show that
the Court has allowed some false speech to stand behind the protection of
the First Amendment. However, Alvarez’s lies do not fall into any such
categorization of speech.
Alito demonstrates that there are a lot of problems with the Alvarez
decision. The biggest problem, which Alito does not address, is that
Alvarez, and the other two cases discussed in this chapter, could sound the
death knell for truth-in-political speech laws across the country. The
Alvarez decision alone could have done this but SBAL and 281 CARE
Committee certainly compound its threat to these statutes. Just as a read-
ing of Alito’s dissent indicates, this is good and bad. For starters, expand-
ing First Amendment protection is a generally good thing, especially as it
relates to criticism of the government. Alito gestures toward the chilling-
effect argument, which is definitely an important point to make. Finally,
making the government, at any level through any agency, the arbiter of
truth is not without its problems.
On the other hand, these three cases have also opened the door to a
wider range of, and greater tolerance for, shenanigans. If someone can
freely lie about something as sacred as military honors, something that is
an easily confirmed, tangible fact, then there is no limit to what lies the
First Amendment will protect. It is important that we use the word “lie”
here. A political activist could very easily make a false statement in favor of
the candidate they support, which they genuinely believe to be true. That
would not be a lie. There are also cases where the truth is in dispute. For
example, economists have legitimate disagreements about the effect of any
government policy. Coming to different conclusions does not make them
104 R. N. SPICER
liars. As Thomas Lord Erskine (1880) said in his speech in defense of

Thomas Paine, “any man, not intending to mislead, but seeking to
enlighten others with what his own reason and conscience, however, erro-
neously, have dictated to him as truth, may address himself to the universal
reason of the whole nation” (p. 235).
Conversely, there should be no illusions about the fact that Xavier
Alvarez is a liar. If you are the kind of person who is bothered by the fact
that he lied so brazenly about something so offensive, you can take at least
some comfort in the fact that for the rest of American history legal schol-
ars will look back on the decisions from the Ninth Circuit and the
U.S. Supreme Court and know that both institutions put this declaration
in print for all time. The U.S. Supreme Court explicitly said that Alvarez
“lied” in the opening paragraph of their decision. In addition to his lie
about his non-existent military service they note that he was known to
have lied about playing hockey for the Detroit Red Wings (he did not) and
marrying a famous Mexican actress (again, he did not) (p. 2542). The
Ninth Circuit refers to the Alvarez statement in question in the case as
“nothing but a bizarre series of lies” (p. 1201).
The last point that should be addressed is the idea of counterspeech as
a solution to the problem of political deception (or any other kind of
deception). Alito addresses this in his dissent as well (pp. 2559–2560).
While Justice Breyer, and the rest of the members of the Court who
knocked down Stolen Valor, see counterspeech as the preferable remedy
to Alvarez’s lies, Alito is rightfully skeptical. Specific to the issue of fact
checking claims to military service, Alito notes that “The Department of
Defense has explained that the most that it can do is to create a database
of recipients of certain top military honors awarded since 2001” (p. 2559).
So it clearly cannot be trusted that the public will have access to the
required information for counterspeech to work in this case.
Skepticism of the counterspeech argument should extend beyond the
Alvarez case. This is a reminder of an important argument from 281
CARE Committee about the paucity of news coverage of local politics.
Alana Semuels (2014) wrote extensively for the Atlantic on the myriad
problems facing local media. Pew’s 2013 State of the Media report referred
to local news outlets’ “shrinking pains,” as local affiliates were losing both
audience size and ad revenue (Jurkowitz et al. 2013). In addition to the
small quantity of news coverage in local media, and audiences going to
other media outlets and platforms for information, there is the problem of
the quality of the coverage. One study that looked at 1569 articles from
local media about the Affordable Care Act found that half of those articles
focused on the political disagreements over the law and every other policy
consideration combined made up the other half (Gollust et al. 2017). So
the marketplace of ideas and counterspeech, especially at the level of local
politics, might not be the best way to solve the problem of political
deception.
In the wake of these three cases, American political campaigns, and the
laws that govern them, are faced with two stark possibilities. Of course
there is a lot of gray in between but the contrasting viewpoints on political
deception and the law are best exemplified by placing the Alvarez case in
dialog with the Tomei case. The plurality in Alvarez argues against the
restriction of lying because allowing the government to punish lying, even
in the case of lying about military honors, “would endorse government
authority to compile a list of subjects about which false statements are
punishable. … Our constitutional tradition stands against the idea that we
need Oceania’s Ministry of Truth” (p. 2547). The Tomei court by contrast
sees the problem of the First Amendment being the last refuge of the
scoundrel. The political lie, or any kind of deception, is an attempt to
“poison the stream, to deprive voters of a free choice by diverting the
intended exercise of the franchise to an unintended result” (p. 698). This
is the, perhaps false, binary in the discourse around the law and political
deception: a public victimized by totalitarian government control or char-
latans out to trick them into voting against their own interests. The last
chapter will be a brief discussion addressing these arguments and looking
at political deception as a legal problem going forward.
Notes
1. A LexisNexis search, including U.S. newspapers, wire services, and web-
news, for June 28, 2012 for the Affordable Care Act returns 2091 articles.
A search on the same day for the Stolen Valor Act returns 26 results. The
same search of broadcast transcripts finds 209 and 12 results respectively.
This, of course, is not a thorough content analysis comparing the difference
in quantity and quality of coverage the two cases received, but it is strong
anecdotal evidence that the Alvarez case received far less coverage than the
Obamacare case on the day they were announced.
2. As of this writing U.S. v. Alvarez is only five years old.
3. In response to the Court’s decision the U.S. Congress rewrote the statute
to make it illegal to falsely claim to have won the Medal of Honor in order
106 R. N. SPICER
to gain some benefit from that false claim (e.g. money, property, military
health care benefits). President Barack Obama signed the new version into
law in June 2013, one year after the Supreme Court’s decision (Jordan
2013).
4. By “additional elements” the Ninth Circuit court meant that in order to
convict Alvarez the government should have been required to prove his
“false statement was (1) knowing and intended to mislead, (2) material,
and (3) did mislead” (p. 1212). Instead, in order to convict Alvarez, the
government needed only to demonstrate the he made a false statement,
nothing more (p. 1212). The Court also suggests that similar legislation,
such as impersonation statutes, are “drafted to apply narrowly to conduct
performed in order to obtain, at a cost to another, a benefit to which one
is not entitled” (p. 1212).
5. I would like to acknowledge the suggestion of this idea from my friend
Lieutenant Colonel Nicholas McCue, a Judge Advocate General lawyer in
the U.S. Air Force. He suggested this possibility in a discussion we had
about the Supreme Court’s decision. I am grateful to him for helping me
think through this issue.
6. The eight examples Bybee cites, in the order in which he cites them, are:
Gertz v. Welch (1974), BE & K Construction Co. v. N.L.R.B. (2002),
Hustler Magazine v. Falwell (1988), Keeton v. Hustler Magazine (1984),
Bill Johnson’s Restaurants Inc. v. N.L.R.B. (1983), Herbert v. Lando
(1979), New York Times v. Sullivan (1964), and Garrison v. Louisiana
(1964).
7. The 281 CARE Committee’s name stands for Citizens Acting for
Responsible Education.
8. Marks, et al. v. U.S. was a case in which the petitioners were convicted of
interstate commerce of obscene materials. Their conviction happened after
the U.S. Supreme Court’s holding in Memoirs v. Massachusetts (1966) but
before the Court’s decision in Miller v. California (1973). However, their
trial did not begin until after the Miller decision was announced (Marks
1977, pp. 188–189). The trial court applied the standards set in Miller,
standards which “expanded criminal liability,” in comparison to the
Memoirs decision, for obscenity charges (p. 194). The Supreme Court said
that Memoirs was the court decision “by which petitioners charted their
course of conduct” (p. 191). They overturned the conviction and remanded
the case for “further proceedings consistent with this opinion” (p. 197). In
other words the petitioners’ trial should have been conducted under the
standards set in Memoirs not those set in Miller. The Marks case gave birth
to the “narrowest grounds doctrine” that says, “When a fragmented Court
decides a case and no single rationale explaining the result enjoys the assent
of five Justices, ‘the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrow-

est grounds’” (p. 193).
9. As discussed above, intermediate scrutiny and strict scrutiny are standards
a court will use to decide whether a law violates the U.S. Constitution.
Intermediate scrutiny is the idea that a law must advance a government
interest and do so in a way that is clearly related to that interest (Cornell
n.d.-a). Strict scrutiny says there must be “a compelling government inter-
est” in passing a law and the law must be narrowly tailored to meet that
interest (Cornell n.d.-b). Strict scrutiny is a more difficult standard to
meet. The Minnesota district court in the 2013 281 CARE decision
decided the less exacting intermediate scrutiny was applicable. In layman’s
terms this means Minnesota had to demonstrate to the court that (1) there
was some government interest in preventing purposefully false statements
in campaign advertisements and (2) that § 211B.06 was related to that
interest. The court decided the statute met both of those requirements.
10. The PPACA, sometimes referred to as the ACA, Affordable Care Act, or
Obamacare, was the healthcare reform bill passed by the U.S. Congress
and signed by President Obama in 2010. It was a controversial piece of
legislation that created contentious debates such as the one surrounding
Steve Driehaus’s re-election campaign.
11. In instances such as this, someone such as Rep. Driehaus can file a com-
plaint with the Ohio Election Commission. The commission will hold a
hearing on that complaint and can issue a ruling on the truth of the claim
in question or could potentially refer the incident to the appropriate law
enforcement agent if there is evidence that a crime was committed.
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CHAPTER 5
Conclusion: Two Paths in the Legal Woods
Abstract The final chapter offers a brief set of closing thoughts about the
state of political deception and potential problems the future might hold.
While acknowledging the importance of the First Amendment protection
of freedom of speech, this chapter argues that thought must be given to
the possibility of regulating false political speech in some manner. Special
concern is given to acts of deception in which American operatives engage
in collusion with foreign entities and the ways in which technological
advances in video and audio editing software create the potential for prob-
lematic shenanigans in political campaigns.
Keywords Political communication • Political philosophy • Freedom of

speech • First Amendment • Political power • Deception • Russia •
Facebook • Adobe VoCo • Face2Face • Audio and video editing
In a lot of the discourse around the First Amendment and freedom of

speech there is often a hyperbole that percolates throughout the debates.
It is a general fear of, or discomfort with, or even hatred for, censorship of
any kind. It runs through American politics across the ideological spec-
trum. The ethos of “freedom for the thought that we hate,” an idea from
Justice Oliver Wendell Holmes in his dissent in United States v. Schwimmer
(1929), is a dominant force in our national ideals about freedom of speech
and politics. It so deeply ingrained that it almost does not need to be

https://doi.org/10.1007/978-3-319-69820-5_5
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explained, but this is the idea that the First Amendment is there to protect
even the speech with which we do not agree. This includes not only peo-
ple who hold respectable opinions that differ from our own. Freedom of
speech is even there for the most abhorrent of ideas.
This is why the Nazis could march in Skokie (Downs 1985) and the
KKK can hold their rallies and refer to using “revengeance” against the
government (Brandenburg 1969). It is why a man can walk through a
courthouse in California with “Fuck the draft” on the back of his jacket
(Cohen 1971). It is why Hustler can print a satirical ad pretending that
televangelist Jerry Falwell had sex with his mother in an outhouse (Hustler
1988). The fact that the First Amendment protects all of the speakers in
these examples is not good because it protects them. It is good because if
bigotry and obscenity are protected as free speech then those speaking
against bigotry and obscenity have nothing to worry about (at least in
theory). As Voltaire said, “I disapprove of what you say, but will defend to
the death your right to say it.”
Part of the problem is that not everyone feels the way Voltaire did when
it comes to First Amendment issues. Albert Einstein (2015) once said,
“Laws alone can not secure freedom of expression; in order that every
man present his views without penalty there must be spirit of tolerance in
the entire population” (p. 13). When I say that civil rights advocates
speaking out against bigotry have freedom of speech “in theory,” I’m
drawing on Einstein’s argument. There are the well-known assassinations
of civil rights leaders such as Medgar Evers and Dr. Martin Luther King,
Jr. There are also the murders of James Earl Chaney, Andrew Goodman,
and Michael Henry Schwerner. These three men were working on civil
rights issues in Mississippi in 1964 when members of the KKK murdered
them (PBS n.d.). There are numerous other murders of lesser-known civil
rights activists such as Rev. George Lee, Hebert Lee, William Lewis
Moore, and Rev. Bruce Klunder (SPLC n.d.).
These individuals and their stories serve to remind us that, if advocates
are subject to murder, physical violence, or even verbal abuse and intimi-
dation, then the words of the First Amendment are little more than mean-
ingless ink on a piece of paper. In such cases those advocates only have a
freedom to speak in theory, not in actual practice. The problem is that it
becomes quite difficult to distinguish, sometimes, between speech that is
just offensive and speech that is meant to intimidate and thus suppress the
speech of others. If we are able to identify a concrete difference, the next
question is whether we want to tolerate the offensive speech even if it
CONCLUSION: TWO PATHS IN THE LEGAL WOODS 113
causes no physical harm, or threat of physical harm, or serves to suppress

the liberties, especially the free speech, of others.
This could be called the Jefferson question. Probably one of Thomas
Jefferson’s most famous quotes is his argument: “I would rather be
exposed to the inconveniences attending too much liberty than to those
attending too small a degree of it” (Jefferson 1791).1 Jefferson himself
might not use this example, but I have to argue, allowing the KKK and
other hate groups the freedom to spew their hatred might constitute “too
much liberty.” This excess of liberty also leads us to question the idea of
counterspeech as the solution to such hatred. Stanley Fish (1994) argues
that the counterspeech idea only works if “the effects of speech could be
canceled out by additional speech, only if the pain and humiliation caused
by racial or religious epithets could be ameliorated by saying something
like ‘so’s your old man’ … words do work in the world of a kind that can-
not be confined to a purely cognitive realm of ‘mere’ ideas” (p. 109).
The same argument applies to political deception. Do we want the
“inconveniences” of “too much liberty,” such as any activist or politician
being able to freely “poison the well” of political discourse with falsehoods
intended to divert the public will toward unintended consequences? If this
is the situation that First Amendment jurisprudence has produced, at the
very least we have to grapple with the validity of the arguments that coun-
terspeech will solve this particular “too much liberty” problem. For exam-
ple, we might look to fact-checking organizations such as PolitiFact and
FactCheck.org, which of course do good work. Despite the high quality of
their research, there is a question about whether it is, at times, all for naught.
Social science research has found that fact checking might not do much to
change minds.2 In some cases it might even be counterproductive.
So there is evidence from the social science research that fact checking
(i.e. counterspeech) does not work miracles (despite what the plurality in
the U.S. Supreme Court’s Alvarez decision argues). There is also the prob-
lem that, even if fact checking did work miracles, we very often do not have
access to the necessary information for fact checking to happen. So even if
we accept the First Amendment argument that lying should be protected
speech, we should not do so under the delusion that the marketplace will
simply work itself out. Thomas Jefferson did not say, “I would rather be
exposed to the absence of inconveniences attending too much liberty.” He
acknowledged that there would be problems either way. The inconveniences
of too much liberty for political deception are that politicians can freely
114 R. N. SPICER
mislead the public and, as was argued in the first chapter of this book, very
often do so with little or no consequences. For starters, Richard Blumenthal
misrepresented his military service and was still elected to the United States
Senate.
The next question is, would we prefer the alternative of “too little lib-
erty,” where the government is able to declare one thing or another to be
false and to levy fines or impose prison sentences on the offending liars?
This is especially problematic given the subjective nature of a lot of politi-
cal debate. Even scientific data can be subject to some level of interpreta-
tion. Yet, it does not have to be this binary choice. The debate does not
have to give us a choice between, on one hand, knuckleheads like Xavier
Alvarez being allowed to run around lying about whatever he wants in
order to get elected and, on the other hand, an Orwellian nightmare of
totalitarian truth ministries.
There are some things that are flat out lies, purposeful attempts to mis-
lead the public, that should have consequences greater than simply losing
a debate and being told, “that was a very naughty thing you did.” For
example, a recent study (Supran and Oreskes 2017) found that “Exxon
Mobil Corp. spent the last 40 years undermining public concern over cli-
mate change, even as its own scientists determined man-made global
warming was real and a serious threat” (Shankleman 2017, para. 1). That
Harvard study looked at 187 climate change communications. The
researchers make a distinction that is important to discussions of decep-
tion; the idea that there are different kinds of deception. They argue that
ExxonMobil did not suppress climate change research. They actually con-
tributed to the field. What the researchers conclude is that the company
“misled non-scientific audiences about climate science” (p. 12).
Given the Alvarez and SBAL decisions we have to conclude that there
are no First Amendment problems here. It could be argued that this is not
political speech and could potentially be covered by fraud or truth-in-
advertising laws such as those discussed in the third chapter of this book.
However, I would argue that ExxonMobil’s apparent acts of public decep-
tion are political in nature. This is communication on an issue that influ-
ences how the public feels, how they communicate with their representatives
in government, and ultimately how they vote. Climate change, like most
every other issue, has become polarized and ExxonMobil presumably con-
tributed to that. There should be some consequences for them beyond a
little bad PR in the weeks after the publication of a study that the vast
majority of the public probably did not even notice.
This also reminds us that there are numerous examples of deceptive acts
in our political discourse that can go unnoticed. Given the amount of
airtime and ink spent on the two major party presidential candidates in
2016, and the amount of that attention that focused on parsing the truth
of various statements and judging the relative trustworthiness of the two
candidates, it is easy to forget that in various other political contexts accu-
sations of deception played a part in campaigning and even in the after-
math of those races. In one case, there was even a pending defamation
lawsuit in the months after the race had been decided where the winner of
the race was suing his defeated opponent.
Republican Rep. Darrell Issa of California brought a lawsuit against his
opponent Doug Applegate over two attack ads the Democrat ran during
the 2016 campaign. In one ad, Issa claims, his opponent gave the false
impression that The New York Times had reported that Issa “gamed the
system to line his own pockets” (Stewart 2016, para. 10). The other ad,
Issa argues, gave the false impression that he was opposed to supporting
victims and first responders from 9/11 (Stewart, para. 17). Issa sued
Applegate for $10 million.
As this book has discussed, these ads may be factually problematic, but
Issa is, especially after SBAL, on shaky ground with this lawsuit. For one
thing, in the case of the second ad one of the factual errors with which Issa
takes issue is the claim that he joined with tea party members of Congress
to vote down a bill that would have helped 9/11 families. The bill was
actually voted down by a bipartisan group. This is a perfect example of one
of those moments where a true statement gives a false impression; the ad
just omitted the fact that some Democrats joined tea party members to
vote against the bill. This is a deceptive statement that, in the context of a
political campaign, is so banal it barely merits being mentioned in this
book, let alone being part of a libel suit. Also problematic for Issa is that
the statement is true and the first element of defamation is proving that a
statement was false. There is also the ad’s misuse of Issa’s statement that
9/11 was “simply” a plane crash. This gives the impression that he is cal-
lous and has no sympathy for the victims and that he was downplaying the
seriousness of the terrorist attack that day. What Issa actually meant was
that there were no explosives involved, the plane was the only “weapon”
used in the attack.
The reason these two statements, despite their political banality, do
merit mention in this book is because of the chilling-effect argument. A
Mother Jones article on the lawsuit quotes Peter Scheer, the executive
116 R. N. SPICER
director of the First Amendment Coalition, arguing, “First Amendment

protections for speech are at their very, very, very highest during a political
campaign. … This lawsuit doesn’t stand a chance. It’s a waste of the
court’s time and it’s certainly a waste of his opponent’s time and money”
(Schatz 2016, para. 2). The question is why would a long-serving member
of Congress, who presumably knows this about the First Amendment,
even bring such a lawsuit. Schatz speculates that Issa may have simply
wanted to punish Applegate by forcing him to spend money defending
against the lawsuit or that he was upset that Applegate had run better ads.
Whatever the reasoning, these ads represent perfect examples of the kinds
of political discourse that is distasteful (and at least somewhat misleading)
but nevertheless protected by the First Amendment.
In the end, Issa won the election, which is at least partial evidence for
the idea that the truth can prevail in a free and open debate. Then again,
it is important to be only cautiously optimistic on that front. Being an
incumbent from a district where the partisan leanings favor you can also
be pretty helpful. There is also reason for optimism because of the fact that
Issa ended up losing this lawsuit (Stewart 2017a). Not only did Issa lose
but the court also ordered him to pay $140,000 of Applegate’s legal fees,
arguing that he had “infringed on his opponent’s free speech rights” when
he filed the lawsuit (Stewart 2017b, para. 1).
Another far more high-profile defamation lawsuit to follow the 2016
election involved First Lady Melania Trump and a newspaper that, she
claims, falsely reported that she had worked as an escort. In response, Mrs.
Trump sued Maryland-based blogger Griffin Tarpley and the Daily Mail,
a British newspaper. Tarpley settled the lawsuit for a “substantial sum” and
issued an apology (Savransky 2017, para. 2). The Daily Mail was dis-
missed from the same lawsuit in Maryland on jurisdictional grounds
(Savransky, para. 9). Mrs. Trump re-filed the lawsuit in New York
(Associated Press 2017).
On top of the controversial content of the reporting, the lawsuit itself
inspired a bit of controversy because it argued that the reporting had
harmed Mrs. Trump financially. The original lawsuit said the defendants
had cost Mrs. Trump the
unique, once-in-a-lifetime opportunity … to launch a broad-based commer-

cial brand in multiple product categories, each of which could have garnered
multi-million dollar business relationships for a multi-year term during
which [she] is one of the most photographed women in the world. (Trump
v. Mail Media 2017, pp. 1–2)
It was later reported that Mrs. Trump re-filed the lawsuit without the
controversial language after she was criticized for appearing to be attempt-
ing to gain financially from her position as First Lady of the United States
(BBC 2017). The New York Times noted that this became part of a larger
debate about the entanglements between President Trump’s business and
his decision making as president (Perez-Pena 2017, para. 6).
In addition to that, an editorial in The Washington Post argued that the
lawsuit was not targeting a falsehood but was itself based upon a false-
hood. Callum Borchers (2016) reported for the Post that the claims about
Mrs. Trump’s past were originally reported in a Slovenian magazine called
Suzy, earlier in 2016. The Daily Mail then reported that Suzy had reported
on them, but noted that there was “no evidence to back up these startling
claims” (Borchers 2016, para. 8). The Daily Mail article actually quotes
Paolo Zampoli, the owner of the modeling agency that Suzy claimed was
doubling as an escort service. Zampoli says, “the allegations were ‘f******
rubbish’. ‘My agency was never an escort agency” (Borchers 2016, para.
7). Borchers (2017) says that the Daily Mail article “arguably did more to
repair Trump’s reputation than to damage it” (para. 4). On the other
hand, Borchers does say that the Daily Mail was on ethically shaky ground
in rehashing the accusations from Suzy. Even if a news outlet reports false
claims in order to correct them, the mere act of doing the fact check can
serve to put false accusations into the public zeitgeist.
This back and forth also creates a politically challenging environment
where even accusations of dishonesty result in counterarguments of dis-
honesty against the original claim, only serving to muddy political debates,
making it more difficult for the public to get to the truth. More problem-
atic is the fact that these two incidents resulted in lawsuits. In both
instances, there are fairly powerful individuals, a congressman and a First
Lady of the United States, suing relatively less powerful individuals, a cam-
paign opponent who lost the race and a political blogger. An important
take away from this is an awareness of the ways in which politically and
economically powerful individuals can use the court system as a weapon to
silence critics. This is not to defend the behavior of the defendants in these
cases. Doug Applegate, Griffin Tarpley, and the Daily Mail all did some-
thing at least partially dishonest. However, there is ambiguity to the truth-
value of their communication and, as the court in the Issa lawsuit argues,
this use of defamation law can have a chilling effect on free speech and
violate the speakers’ First Amendment rights.
118 R. N. SPICER
While these examples from our most recent election cycle are impor-
tant, they are also fairly run-of-the-mill acts of political deception. The
more important reason to begin a conversation about the legal ramifica-
tions of political deception is the incident surrounding Russian interfer-
ence with the 2016 election, not to mention the other threats to the
security of the American electoral system. For one thing, there were
attempts all over the nation to penetrate voting systems. There is a prob-
lem of voters being deceived, which lies on top of the problem of espio-
nage as a malevolent force, both domestic and foreign, and attempts to
hack voter rolls and election systems.
A post-election analysis from the South Carolina State Election
Commission, for example, found that there were 149,832 “blocked
attempts to penetrate the firewall of the statewide voter registration sys-
tem” on November 8, 2016 alone (SEC 2017, p. 6). That number is for
just that one day; it does not include all of the attempts made in 2016
leading up to the election. In reporting on that analysis, the Wall Street
Journal’s Alexa Corse (2017) makes the much scarier proposition that if
“hackers were that persistent against a state that President Donald Trump
won comfortably, with 54.9% of the vote, it suggests they may have tar-
geted political swing states even more” (para. 3). Later in 2017, a New
York Times analysis found that suspected Russian attempts at hacking voter
databases were more widespread than initially thought. Security experts
were quoted in that report as saying that a more thorough investigation of
local election databases was required to examine if there had been any
tampering (Perlroth et al. 2017).
These attempts at hacking computer systems go hand-in-hand with
attempts at “hacking the voter,” as Time called it. Although the investiga-
tion into Russian interference in the 2016 election was ramping up and
receiving increased public attention throughout 2017 (at the time of the
writing of this book) there was already chatter about the problem in the
spring of 2016. Time’s Massimo Calabresi (2016) reported that starting in
the spring of 2016, “U.S. intelligence and law-enforcement agencies
[started seeing] mounting evidence of an active Russian influence opera-
tion targeting the 2016 presidential election” (p. 30). Calabresi also
reported, in October 2016, that Russia influencing the outcome of the
election was unlikely because of the decentralized nature of our election
infrastructure. The greater concern was Russia’s ability to “sow disruption
and instability” and undermine faith in the political system.
In 2017, the Citizen Lab at the Munk School of Global Affairs at the
University of Toronto did an analysis of Russian strategies for undermin-
ing their critics. The key tactic the Citizen Lab describes in this report is
the use of what they term “tainted leaks.” This is “the deliberate seeding
of false information within a larger set of authentically stolen data”
(Hulcoop et al. 2017, para. 15). One example is when Russian hackers
obtained emails of journalist David Satter, who had been a prominent
critic of the Kremlin. They then leaked his emails but falsified them, alter-
ing their content to harm Satter’s (2004) reputation in retaliation for his
book Darkness at Dawn, which claimed that the FSB was involved in the
bombing of Russian apartment buildings to use the incidents as a pretext
for the second Chechen War (Hulcoop et al. 2017, para. 13).
There is a long history of governments, including the U.S. govern-
ment, perpetrating this kind of psychological warfare. Christopher
Simpson (1994), in his book Science of Coercion, defines psychological
warfare as “the purportedly scientific application of propaganda, terror,
and state pressure as a means of securing an ideological victory over one’s
enemies” (1994, p. 24). Simpson describes “white” and “black” propa-
ganda efforts, those that the propagandist overtly acknowledges and those
that are off the books and unacknowledged, respectively. What the
Russians allegedly did to David Satter, according to Simpson, would con-
stitute “black” propaganda, which includes “forging enemy documents
and distributing them to target audiences as a means of discrediting rival
powers” (p. 12). A third category, “gray” propaganda, is when the propa-
gandist leaks discrediting information about a rival to an ostensibly inde-
pendent news outlet in order to conceal the source of the information
(p. 13).
This book has been focused on the legal, First Amendment concerns
surrounding political deception in a domestic context. The reason for con-
cluding with thoughts on Russia is because, if the investigations into this
issue finds evidence of Russian interference with the presidential campaign
and/or direct collusion between the Russian government and the Trump
campaign, there needs to be a serious conversation about the legal ramifi-
cations of the uses of these techniques in American politics. First and fore-
most, future research on these concerns has to give greater attention to
how to handle a foreign government, especially an adversarial one, dis-
seminating false propaganda to influence American elections.
Second, there should be concern for how to handle domestic political
operatives colluding with foreign operatives. Again, this is to say if evidence
120 R. N. SPICER
is found that, for example, anyone in the Trump campaign was working
with operatives from the Russian government, there should be serious
legal ramifications for those individuals. Domestic politics has always had
an element of espionage to it, but to bring foreign actors into the process,
to receive foreign assistance in the process of propagandizing the American
people, is ethically and morally troubling, and it should result in harsh
legal punishments.
Finally, U.C. Berkley history professor Martin Jay (2010) argues, echo-
ing the Prussian general Carl von Clausewitz, “if war is politics conducted
by other means … ‘the political’ may well be at its heart the continuation
of war by other means” (p. 87). Social anthropologist J. A. Barnes (1994)
could add to that argument that the “political arena is second only to
warfare as a domain where lies are expected, do in fact occur, and are to a
substantial extent tolerated” (p. 30). As camera technology improves at a
rapid rate,3 the courts have to give some legal concern to the use of hidden
cameras in political settings and, more important, the selective editing of
what is recorded with those cameras in order to give viewers a false impres-
sion of the subject of the video.
Even more unsettling than selective editing is the improved technologi-
cal abilities to edit video in ways that give a false impression that a person
said something they did not say. Face2Face is video manipulation software
that can put words in the mouth of a speaker who did not actually say
them, “in a photo-realistic fashion, such that it is virtually impossible to
notice the manipulations” (Thies et al. 2017, p. 1). Alongside that is
Adobe’s new program VoCo, which, after recording twenty minutes of
any speaker’s voice, can use typing to create an audio file of the speaker
saying something they never actually said (BBC 2016).
These new technologies, as far as is publicly known, have yet to hit the
market for broad consumer use, or even for political operatives with
greater resources. However, the prospect of their incorporation into the
media environment, especially in social media, should be disconcerting for
all Americans of every political stripe. Based on what is now known about
Russian activities of interference with the 2016 campaign, the idea of add-
ing these tools to their operation creates a whole new level of disruption.
Facebook reported that in 2016 Russian operatives created multiple
accounts that were made to appear as though they were American-based
political activist groups. According to one report, “Russia used false iden-
tities and about 3000 ads to spread politically divisive posts to Americans
before and after the election” (Collins et al. 2017, para. 4). They also used
these groups to organize rallies in towns around the U.S., “the first indica-
tion that the Kremlin’s attempts to shape America’s political discourse
moved beyond fake news and led unwitting Americans into specific real-
life action” (para. 3). In one case, Russian operatives used Facebook to
organize coinciding protest and counterprotest rallies outside of an Islamic
Center in Houston:
On that day, protesters organized by the two groups showed up on Travis

Street in downtown Houston, a scene that appeared on its face to be a pro-
test and a counterprotest. Interactions between the two groups eventually
escalated into confrontation and verbal attacks. (Allbright 2017, para. 5)
If it is possible to mobilize action like this with fake words, imagine what
could be done with fake videos of our political opponents saying awful
things (that they did not actually say). Our political leaders are already
very effectively demonized in the minds of their opponents. Such faked
audio and video will only serve for animosity amplification. Even with
what we now know about the spreading of “fake news,” the perpetrators
in Macedonia, are already gearing up for the 2020 presidential campaign
(Soares 2017).
If these practices are to be dealt with from a legal perspective, there will
be some challenges related to the First Amendment. Given the precedent
set in Alvarez, it is easy to imagine a world where the U.S. Supreme Court
rules that fake video of a politician appearing to say something that they
did not actually say might be protected speech. If the video could be inter-
preted as defamatory, a lawsuit might be able to go forward. Also, if such
video manipulation software is involved, it might actually be easier to
establish actual malice in such a case. However, if the politician’s video is
altered to make them appear, for example, to advocate a pro-choice posi-
tion when they are in reality pro-life, the courts would likely rule in favor
of the creators of the video that the First Amendment protects their decep-
tion. This has already been established in the Driehaus case, where the
court held that, “as a matter of law, associating a political candidate with a
mainstream political position, even if false, cannot constitute defamation”
(SBAL 2013). A court could possibly feel differently if video manipulation
software is involved in the case, but combining the Driehaus and Alvarez
cases it is easy to imagine such videos receiving First Amendment
protection.
122 R. N. SPICER
While such deception on a domestic level is bad, having this work being
done in tandem with the efforts of a foreign government or agency to
spread propaganda in the U.S. should definitely be criminalized. It is quite
difficult, and perhaps not totally desirable, to codify truth telling. At the
same time, as we see in Alvarez and SBAL, truth is often sacrificed on the
altar of the marketplace of ideas. However, when looking at rapid techno-
logical changes and the possibility for greater foreign interference in our
political culture, it is essential for future legal scholarship to begin a discus-
sion of how the First Amendment could potentially become a moot point
in light of the necessity for legal sanctions against American political oper-
atives who collude with foreign powers. It is also important that legal
scholars and jurists start disabusing themselves of the notion that, with
technology like VoCo and Face2Face out there, the marketplace of ideas
will work itself out with no need for intervention.
Notes
1. In the references section of the book I have this source cited as coming from
The National Archives with the URL directly leading to the text of the letter
in which Jefferson wrote this, in HTML for easy reading. An image of the
original letter can be found at the Library of Congress website at this URL:
https://www.loc.gov/resource/mtj1.015_0414_0416/.
2. In recent years, more research is being done on the effectiveness of fact
checking claims in order to better inform the public. Swire (2017) found
that Trump voters did update their beliefs about certain false claims, but did
not change their voting preferences as a result. Brendan Nyhan and Jason
Reifler (2010) actually found that, not only does fact checking not change
someone’s mind, it can actually have a “backfire effect,” where it leads to
them strengthening their false beliefs.
3. In 2016, it was reported that both Sony and Samsung had applied for pat-
ents for contact lenses that double as cameras that could take pictures when
the wearer blinks (Bolton 2016; Starr 2016).
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Appendix

https://doi.org/10.1007/978-3-319-69820-5
State Statute Actions addressed Punishment Category
128
Alabama § 17-5-16: Alabama Fair Misrepresenting oneself as being Fine of no more than $2000 and/or Affiliation
Campaign Practices Act affiliated with a campaign with the county jail for no more than 1 year Statutes
(Fraudulent intention of damaging that
APPENDIX
misrepresentation) campaign
Alaska § 15.13.095: False statements Knowingly making a false Money damages, punitive damages Campaign
in telephone polling and callsstatement about a candidate, or Message
to convince with reckless disregard Statutes
Alaska § 15.56.014(3): Campaign Making false statements about a Class B misdemeanor—fine of no more Campaign
misconduct in the second candidate that would cause a than $2000 and/or “imprisonment of not Message
degree “breach of the peace” or lead “a more than 90 days” Statutes
reasonable person” to question the
honesty or integrity of a candidate
Arizona § 16-925: Deceptive mailings; Mailing false information about an Civil penalty, fine of $500 or twice the cost Election
civil penalty election using documents forged of the mailing (whichever is higher) Conduct
to look like they were sent from a Statutes
governmental body in Arizona
California § 18350: California Elections Falsely presenting candidate as an “Any violation of this section may be Campaign
Code incumbent enjoined in a civil action brought by any Message
candidate for the public office involved” Statutes
California § 18351: California Elections Lying related to Elect. Code Fine of no more than $1000 Election
Code sections 11327, 13307—lying on Conduct
a public candidate statement or Statutes
sample recall ballot sent by the
state to voters
Colorado § 1-13-109 Sect 1(a): False or Knowingly false statements meant Class 1 misdemeanor—up to 18 months Campaign
reckless statements relating to to affect voters’ decisions in the in jail Message
candidates or questions election of a candidate or voting Statutes
submitted to electors on a ballot question
Colorado § 1-13-109 Sect 2(a): False orReckless false statements Class 2 misdemeanor—up to 12 months in Campaign
reckless statements relating to
distributed to voters intended to prison Message
candidates or questions affect the vote on a candidate or Statutes
submitted to electors ballot question
Connecticut Sec. 9-363: Circulation of Giving voters false information Up to $500 fine and/or up to Election
misleading instructions that could lead to their vote not 5 years in prison Conduct
being counted Statutes
Connecticut Sec. 9-368c: Giving false information about Class D felony—1–5 years in prison Campaign
Misrepresentation of contents what is in a petition Message
of a petition Statutes
Delaware § 5136: Tampering with Tampering with a ballot to deceive Up to $200 fine and/or up to 2 years in Election
ballots or deceiving voters a voter or cause someone’s vote to prison Conduct
be eliminated Statutes
Florida § 104.271: False or malicious Candidate making false statements, 3rd degree felony—no more than 5 years in Campaign
charges against, or false with actual malice, about an prison; fine of no more than $5000 Message
statements about, opposing opposing candidate Statutes
candidates
Georgia § 21-2-575: Counterfeit Being in possession of counterfeit Felony—fine or up to $10,000 and/or Election
ballots or ballot labels ballots prison for 1–10 years Conduct
Statutes
Hawaii §19-3(12): Election frauds Disseminating false information Fine of between $1000–$5000 and/or Election
about the “time, date, place, or prison for up to 2 years Conduct
means of voting” Statutes
Idaho § 34-1714(d): Prohibited Willfully circulating false Felony—punishable by a fine of Campaign
Acts—Penalties information about the effect of a up to $50,000 and a prison sentence Message
recall petition in order to get of up to 5 years Statutes
signatures
Idaho § 34-1714(f): Prohibited Circulating a recall petition Felony—punishable by a fine of up to Campaign

APPENDIX
Acts—Penalties containing false or fictitious names $50,000 and a prison sentence of up to Message
5 years Statutes
129
(continued)
(continued)
130
Idaho § 34-1815: False statements Circulating false information about Punishable by a fine of up to $5000 and/or Campaign
spoken or written concerning a petition prison/jail up to 2 years Message
APPENDIX
petition unlawful Statutes

Kansas § 25-2414: Possessing false or Possession of any kind of fake Level 9, nonperson felony—6–12 months Election
forged election supplies election materials “with intent to in prison depending on the defendant’s Conduct
hinder or prevent a fair election” criminal history Statutes
Kansas § 25-2424: False Falsely presenting one’s self as the Class A misdemeanor—county jail of no Affiliation
impersonation as party officer member of a political organization more than a year, and/or fine of no more Statutes
in order to influence a voter than $2500
Louisiana § 18:1463 B(1): Political Attaching incorrect ballot numbers Affected candidate is entitled to a Election
material; ethics; prohibitions to candidates temporary or permanent injunction; if a Conduct
permanent injunction is granted the Statutes
defendant can be charged with the
plaintiff’s legal fees; fine of no more than
$2000; “imprisoned (with or without hard
labor) for not more than two years or both”
Louisiana § 18:1463 B(2): Political Falsely alleging endorsement or Affected candidate is entitled to a temporary Campaign
material; ethics; prohibitions support for a candidate by a or permanent injunction; if a permanent Message
person or group injunction is granted the defendant can be Statutes
charged with the plaintiff’s legal fees; fine of
no more than $2000; “imprisoned (with or
without hard labor) for not more than two
years or both”
Louisiana § 18:1463 C(1): Political Making a statement you know or Affected candidate is entitled to a temporary Campaign
material; ethics; prohibitions could be reasonably expected to or permanent injunction; if a permanent Message
know is false injunction is granted the defendant can be Statutes
years or both”
Louisiana § 18:1463 C(4)(a): Political Misrepresenting acting on behalf a Affected candidate is entitled to a temporary Affiliation
material; ethics; prohibitions candidate or permanent injunction; if a permanent Statutes
injunction is granted the defendant can be
years or both”
Massachusetts M.G.L.A. 56 § 42: False Making a false statement that Fine of no more than $1000 or prison of Campaign
statements relating to “tends to aid or injure” a no more than 6 months Message
candidates or questions candidate Statutes
submitted to voters
Michigan § 168.944: False designation Falsely presenting a candidate as Fine of no more than $500 and/or Campaign
of incumbency the incumbent when he or she is imprisonment in county jail of no more Message
not than 90 days Statutes
Minnesota § 211B.06: False Political and Preparing, disseminating, or Fine of no more than $3000 or jail for no Campaign
Campaign Material broadcasting false political ads or more than 90 days Message
campaign materials about a Statutes
candidate or potential effects of a
ballot question
Mississippi § 23-15-875: Prohibitions Making false statements or Fine of no more than $1000 and prison Campaign
against charges with respect accusations about a candidate; sentence of no more than 1 year in jail Message
to integrity of candidate specifically aimed at “honesty, Statutes
integrity and moral character” of
candidates in private life
Missouri § 115.631: Class one election Disseminating false information Felony—prison for no more than 5 years, Election
offenses causing someone to cast a faulty and/or a fine of between $2500–$10,000 Conduct
ballot, disenfranchizing a voter Statutes
(continued)
APPENDIX
131
(continued)
132
Montana § 13-35-225(3)(a): Election Campaign materials must contain Civil action brought by the commissioner Campaign
materials not to be a signed statement that the or county attorney for a fine of $500 Message
APPENDIX
anonymous—statement of information on a candidate’s Statutes

accuracy voting record is accurate
New § 666:6: False Documents, Creating fake campaign Misdemeanor—a fine of up to $2000 and Campaign
Hampshire Names, or Endorsements documents prison for up to 1 year Message
Statutes
New § 666:7: Publication of Publishing documents in question Felony—up to 7 years in prison and a fine Election
Hampshire Forged Documents in § 666:6 of up to $4000 Conduct
Statutes
New § 666:7-a: Impersonation of Placing a phone call during which Misdemeanor—a fine of up to $2000 and Affiliation
Hampshire candidates one pretends to be a candidate prison for up to 1 year Statutes
New Mexico § 1-20-9(A): Falsifying Disseminating false information Fourth degree felony—18 months Election
election documents about the conduct of an election imprisonment, fine of up to $5000 Conduct
Statutes
North § 163-274 a(8): Certain acts Circulating derogatory reports Class 2 misdemeanor—no more than 60 Campaign
Carolina declared misdemeanors knowing they are false or with days in jail and a $1000 fine Message
reckless disregard Statutes
North § 16.1-10-04: Publication of Including false information in a Class A misdemeanor—no more than Campaign
Dakota false information in political political advertisement or news 1 year in prison and no more than $2000 in Message
advertisements release, statements that are fines Statutes
“deceptive or misleading”
Ohio § 3517.21: Infiltration of (A)(1) gaining employment on a Prison of no more than 6 months and/or Affiliation
campaign—election of campaign with intent to impede fine of no more than $5000 Statutes
candidate that campaign;
Ohio § 3517.21: false statements in (B)(1) falsely imply incumbency; Prison of no more than 6 months and/or Campaign
campaign materials—election fine of no more than $5000 Message
of candidate Statutes
Ohio § 3517.21: false statements in False statement of: (B)(2) Prison of no more than 6 months and/or Campaign
campaign materials—election schooling or training of a fine of no more than $5000 Message
of candidate candidate, (3) prof. license, (4, 5) Statutes
criminal conviction, (6) mental
disorder, (7) military discipline,
(8) falsely identify the source of a
statement, (9) false statement of
voting record of a candidate, (10)
general false statements about a
candidate, made knowingly or
with reckless disregard, intended
to influence the outcome of an
election
Ohio § 3517.21: Infiltration of (A)(1) infiltrate an advocacy Prison of no more than 6 months and/or Affiliation
campaign—issues campaign in order to impede it fine of no more than $5000 Statutes
Ohio § 3517.22: Infiltration of (B)(1) falsely identify the source of Prison of no more than 6 months and/or Campaign
campaign—false statements in a statement, (2) circulate false fine of no more than $5000 Message
campaign materials—issues information knowingly or with Statutes
reckless disregard
Oregon § 260.532: False publication Campaign material that “contains Civil penalty—awards economic and Campaign
relating to candidate or a false statement of material fact non-economic damages “as defined in ORS Message
measure relating to any candidate, political 31.710, or $2500, whichever is greater”; it Statutes
committee or measure” also includes a retraction requirement; may
require the losing party to pay the
prevailing party’s attorney fees
Oregon § 260.550: Use of term Falsely presenting candidate as an 1st violation—$100 fine; 2nd Campaign
“incumbent” incumbent violation—$200; 3rd violation or Message
more—$250 Statutes

APPENDIX
(continued)
133
(continued)
134
Oregon § 260.555: Prohibitions (1) presenting false information Class C felony—no more than 5 years in Campaign
relating to circulation, filing,
about a ballot initiative or recall prison, civil penalty not exceeding $10,000 Message
APPENDIX
or certification of initiative,
petition when attempting to Statutes
referendum, or recall petition
obtain signatures in support of it;
(2–5) signing a petition under
false pretenses
South Dakota § 12-13-16: Publication of Giving misinformation about or Class 2 misdemeanor—30 days in county Campaign
false or erroneous printing a misstated version of a jail and/or $500 fine Message
information on constitutional “constitutional amendment, Statutes
amendment or submitted question, law or measure”
question as misdemeanor
Tennessee § 2-19-142: Knowingly Distributing campaign literature, Class C misdemeanor—no more than Campaign
publishing false campaign that you know is false, in 30 days in jail and/or a fine of no more Message
literature opposition to a candidate than $50; may also include paying the Statutes
opposing party’s attorney fees according to
AG opinion (Cooper, 2009)
Texas Sec. 162.011: Presentation of Presenting false documents in Class C misdemeanor Affiliation
false evidence of affiliation order to participate in political Statutes
prohibited party events
Utah § 20A-11-1103: False Making any false statement Fine of no more than $750 Campaign
statements in relation to intended to influence the election Message
candidates forbidden of a candidate or outcome of a Statutes
ballot question
Virginia § 24.2-1005.1: Giving voters false information Class 1 misdemeanor—fine of no more Election
Communication of false about the date, time, and place of than $2500 and/or jail for no more than Conduct
information to registered an election 12 months Statutes
voter
Washington § 42.17A.335: Political 1(a) defamation of a candidate Misdemeanor—no more than 90 days in Campaign
advertising or electioneering county jail and/or no more than a fine of Message
communication—Libel or $1000 (RCW 9.92.030) Statutes
defamation per se
Washington § 42.17A.335: Political 1(b) false implication of Misdemeanor—no more than 90 days in Campaign
advertising or electioneering incumbency county jail and/or no more than a fine of Message
defamation per se
Washington § 42.17A.335: Political 1(c) falsely stating an endorsement Misdemeanor—no more than 90 days in Campaign
advertising or electioneering of a candidate county jail and/or no more than a fine of Message
defamation per se
West Virginia § 3-8-11: Specific acts Publication of false statements “in Fine of no more than $10,000 and/or jail Campaign
forbidden regard to any candidate” that is for no more than 1 year Message
intended to affect the election of Statutes
that candidate
Wisconsin § 12.05: False representations “False representations pertaining fine of no more than $1000 and/or prison Campaign
affecting elections to a candidate or referendum” for no more than 6 months Message
Statutes
Wyoming § 22-26-107(a)(1), (2), (3): (1) false voting instructions, (2) No more than 5 years imprisonment and/ Election
Falsifying election documents creating a copy of a ballot or a fine of no more than $10,000 Conduct
containing false information, (3) Statutes
altering some election document
(i.e. a nominating petition after it
has been signed by a voter)
Wyoming § 22-24-125(c): Deceiving someone in order to Imprisoned for no more than 1 year and/ Campaign
misrepresentation of petition induce them to sign an “initiative or a fine of no more than $1000 Message
or referendum petition” Statutes
APPENDIX
135
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Index1
A Better Business Bureaus (BBBs), 58

Absolutism (First Amendment), Black, Hugo (Justice Black), 34, 63,
47, 82, 83 64, 71
Acosta, Jim, 9 Blumenthal, Richard, 84, 114
Adams, John, 6 Bok, Sisssela, 16, 34
Adobe VoCo, 120 Breitbart News, 9
Affordable Care Act (Obamacare), 83, Brexit, 20, 21
84, 98, 99, 105, 105n1, 107n10 Breyer, Stephen (Supreme Court
Alito, Samuel (Supreme Court Justice), 17, 68, 85, 93, 104
Justice), 44, 102–104 Brookings Institution, The, 10
Alternative facts, 2–23 Buchanan, Pat, 49n2
Alvarez, Xavier, 42, 84, 86, 88, 89, Bush Administration, 3
94, 102–104, 106n4, 114 Bush, George H.W., 19
American Civil Liberties Union Bush, George W., 49n3, 75
(ACLU), 72 BuzzFeed, 6
Applegate, Doug, 115–117
Atwater, Lee, 18, 19
C
Callender, James, 6
B Cambridge Analytica, 21
Baker, Gerard, 13–15 Cannon, Lou, 84
Bates v. State Bar of Arizona, 59, 60, 71 Center for Media and Democracy,
Bernstein, Carl, 10 The, 8
Note: Page numbers followed by ‘n’ refer to notes.

1

https://doi.org/10.1007/978-3-319-69820-5
156 INDEX
Center for Public Integrity (CPI), 75 Factcheck.org, 113

Citizen Lab, 119 Fake news, 2–23, 121
Clinton, Hillary, 9, 13 False advertising, 57–62, 71, 92
CNN, 2, 7, 9, 10, 12, 83, 84 Farage, Nigel, 20, 21
Coalition Opposed to Additional First Amendment, 8, 34, 35, 43, 44,
Spending and Taxes (COAST), 47, 48, 55–57, 59–64, 66, 67,
96, 97 70–74, 76n3, 78n12, 78n13,
Colbert Report, The, 8 82–89, 92–94, 96, 100–103, 105,
Columbia Journalism Review (CJR), 7 111–114, 116, 117, 119,
Comey, James, 4, 12 121, 122
Common Cause, 36, 37 Fox News, 12, 83
Congressional Budget Office, 22 Franken, Al, 2, 3
Conway, Kellyanne, 22
Counterspeech, 44, 68, 86, 95, 104,
105, 113 G
Curveball, 3 Garrison v. Louisiana, 34, 102,
103, 106n6
Gertz v. Welch, 55, 64, 102, 106n6
D Gianforte, Greg, 22
Daily Mail, The, 116, 117 Gingrich, Newt, 21
Daily Show, The, 7, 8 Goldwater, Barry, 18
Datafication, 19 Gore, Al, 43, 49n2
Defamation (defamatory), 39, 45, 47, Guardian, The, 4, 8, 9, 20, 21
54, 62–64, 66, 67, 69, 71, 72,
77n10, 78n13, 87, 98, 99, 121
Democratic Party, 70, 93, 100 H
Detrimental reliance, 58, 59 Hamilton, Alexander, 6
Dickerson, John, 6, 22, 23 Harlan, John Marshall, 61, 82
Douglas, William (Supreme Court Hemmings, Sally, 6
Justice), 63, 64 Holmes, Oliver Wendell, 56, 57,
Driehaus, Steven, 45, 96–99, 102, 76n3, 111
107n10, 107n11
I
E Iraq War, 7, 18, 75
Economist, The, 19 Issa, Darrell, 115–117
F J
Facebook, 6, 8, 120, 121 Jefferson, Thomas, 6, 113, 122n1
Face the Nation, 22 Jude, Thaddeus Victor,
Face2Face, 120, 122 90, 91
INDEX
157
K New Republic, The,

Kagan, Elena, 93 16, 24n1
Kennedy, Anthony (Supreme Court New Yorker, The, 10
Justice), 87 New York Magazine, 14
King, Martin Luther, 54, 112 New York Times v. Sullivan, 34, 55,
Kirk, Mark, 84 62, 65, 72, 73, 89,
Knuth, Steven, 91 103, 106n6
New York Times, The, 10, 12–16, 21,
54, 63, 83, 89, 115, 117
L Newsweek, 18
Lewis, Anthony, 62, 63 Nixon, Richard, 10, 18
Los Angeles Times, The, 7, 12
Luggenpresse, 10
Luther, William, 90, 91 O
Lying, 3, 5, 10, 11, 16–18, 22, 34, 37, Obama, Barack, 4, 7, 11, 88,
39, 42, 46, 57, 74–76, 84, 85, 87, 106n3, 107n10
89, 92, 102, 103, 105, 113, 114 Oceania’s Ministry of Truth, 42, 48,
Lyotard, Jean-Francois, 18 85, 105
Onion, The, 7
Orwell, George,
M 42, 85, 88
Macedonia, 6, 121
Marketplace of ideas, 23, 34, 45, 55,
57, 59, 68, 72, 82, 83, 86, 89, P
95, 105, 122 Paine, Thomas, 104
Medal of Honor, 42, 46, 84–86, 88, Partisanship, 6
102, 105n3 Pittenger, John, 77n11
Meet the Press (MTP), 13, 14 Plotz, David, 22
Meiklejohn, Alexander Politico, 5, 12
(Meikeljohnian), 60–62, 82, 83 Politifact, 4, 8, 113
Mercer, Robert, 21 Postman, Neil, 19
Military records, 84 Post-truth, 2–23
Mill, John Stuart, 56, 92 Propaganda, 2–23, 102, 119, 122
Milton, John, 55, 56
Minnesota v. Jude, 37, 48, 62, 73, 75,
90, 91 Q
Quigley, Walter, 7
N
National Association for the R
Advancement of Colored People Reagan, Ronald, 18, 84
(NAACP), 76n4 Republican Party, 18, 24n1, 44, 70
National Public Radio (NPR), 4, 9, 15 Rove, Karl, 49n3
Nation, The, 17, 19 Russia, 10, 22, 24n1, 118–120
158 INDEX
S Trump, Melania, 116

St. Amant v. Thompson, 59 Truth in advertising laws, 57–59, 62,
Samsung, 122n3 88, 114
Sanders, Bernie, 2 Twitter, 5, 11
Scalia, Antonin (Supreme Court 281 CARE Committee v. Arneson, 57,
Justice), 99, 100, 102 83, 90–95
Schmidt, Jean, 83
Schmidt, Steve, 5
Schwartz, Tony, 2 U
Shapp, Milton, 77n11 U.S. v. Alvarez, 17, 23, 35, 42, 55, 57,
Slate’s Political Gabfest, 22 62, 83–89, 105n2
SNL, 8 U.S. Constitution, 60, 82, 107n9
Snyder v. Phelps, 85 U.S. Supreme Court, 16, 34, 35, 42,
Sony, 122n3 44, 54–57, 59–64, 69, 73, 76n2,
Southern strategy, the, 18, 19 76n3, 77n12, 78n13, 83–90,
Spicer, Sean, 4 92–94, 99–102, 104, 106n8, 121
Stewart, Jon, 7, 115, 116 USA Today, 5
Stewart, Potter (Supreme Court
Justice), 64
Stolen Valor Act, The, 42, 84–87, V
103, 105n1 Valentine v. Chrestensen, 59, 71
Susan B. Anthony List (SBAL), 45, Video news reports (VNR), 8
48, 71, 82–105, 114, 115, Virginia Pharmacy Board v. Virginia
121, 122 Consumer Council, 59
Susan B. Anthony List v. Driehaus, 45, Volokh, Eugene, 94, 95
57, 83, 95–102
W
T Wall Street Journal, The (WSJ), 5, 13,
Talmadge, Phil, 39, 72, 73, 78n14, 14, 118
83, 88 Washington v. 119 Vote No! Committee,
Thomas, Clarence (Supreme Court 39, 45, 48, 62, 70, 71, 73, 75, 83
Justice), 102 Washington Post, The, 4, 11, 12, 14,
Todd, Chuck, 13 94, 117
Tomei v. Finley, 70, 93 Wired, 6
Trump campaign, 19, 21, 24n1,
119, 120
Trump, Donald, 2–16, 19–23, 24n1, Z
116–118, 122n2 Zuckerberg, Mark, 8, 9

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FREE SPEECH

Free Speech and False

ISBN 978-3-319-69819-9 ISBN 978-3-319-69820-5 (eBook)

Library of Congress Control Number: 2018937992

© The Editor(s) (if applicable) and The Author(s) 2018

Cover credit: Modern building window © saulgranda/Getty

Printed on acid-free paper

1 Lies, Damn Lies, Alternative Facts, Fake News,

2 Conduct, Affiliation, and Messages: A Typology of Statutes

3 The Judicial Discourse in the Handling of Political

4 Three Recent Cases: Alvarez, 281 CARE, and SBAL 81

5 Conclusion: Two Paths in the Legal Woods 111

Lies, Damn Lies, Alternative Facts, Fake

I wouldn’t believe Donald Trump if his tongue were notarized. Alair

Keywords Trump • Post-truth • Fake news • Political communication

© The Author(s) 2018 1

Fake News Is Not New: Donald Trump Volleys

news, such as The Colbert Report, resulted in an increase in the viewer’s

The Australian Broadcasting Corporation featured an article shortly after

In April 2017, The Reporters’ Lab at Duke University’s Sanford School

What Label to Use?

Donald Trump, with his unorthodox and unprecedented style, created

However, Baker said, while it is a reporter’s job to challenge politicians he

a distraction from a more important journalistic question. “Aggressive

What is interesting about this style of thought is how it gravitated from

constant technological surveillance and the Internet of Things. In his New

We are in the middle of a transition from a society of facts to a society of

There is an important, subtle distinction here, which Davies makes in

The post-truth politics debate opens up some important discussions

Why Look at Deception Through a Legal Lens?

Dickerson, J. (2016). Whistlestop: My favorite stories from presidential campaign

Perlstein, R. (2012, November 13). Exclusive: Lee Atwater’s infamous 1981

Conduct, Affiliation, and Messages:

…incumbents, challengers, voters, and the political process will benefit

Abstract The second chapter of this project is an exploration of the stat-

Keywords Lying • U.S. Supreme Court • Freedom of speech • First

© The Author(s) 2018 33

Election Conduct Statutes

conduct has the “strongest case for constitutionality” if it is narrowly

Campaign Message Statutes

Washington State’s statute is broken into three sections, all of which

The Constitutionality of Statutes

the streets and narrow alleyways of political debate, to attempt to see a

vote on Tuesday, Democrats vote on Wednesday” (p. 71). Despite his

Affiliation can also be a matter of infiltration, as addressed in the Ohio

The problem with the First Amendment protection of political deception

declarations of truth and falsity, and restrictions on speech are certainly an

Carmola, K. (2003). Noble lying: Justice and intergenerational tension in Plato’s

Rickert v. State of Washington Public Disclosure Committee, 168 P. 3d 826

The Judicial Discourse in the Handling

An unconditional right to say what one pleases about public affairs is

© The Author(s) 2018 53

Keywords U.S. courts • U.S. Supreme Court • First Amendment

The judicial discourse surrounding the cases discussed in this section

Edward Balleisen (2017) presents an interesting history of the relation-

If we are going to be stuck with thinking about political speech as a

tect advocating murder. It also contains the phrase “peaceably assemble,”

The Judicial Discourse

Reacting to this argument, an important point of this chapter is that, while

On the question of reputation and free speech, Brown presents an interest-

The court in this case employs a hypothetical scenario in which Burgess

motion to strike. Article 971 was passed by the Louisiana legislature in

Bresler sued the newspaper for defamation, complaining that it had

1 Lies, Damn Lies, Alternative Facts, Fake News,

2 Conduct, Affiliation, and Messages: A Typology of Statutes

3 The Judicial Discourse in the Handling of Political

4 Three Recent Cases: Alvarez, 281 CARE, and SBAL 81

5 Conclusion: Two Paths in the Legal Woods 111

c itizens in a juror’s box, or a judge or justice is given false information, and