The Political Lie: Should There Be a Remedy?

I recently came across several articles (including a good blog post from Doug Masson) about a case involving a law in Ohio that makes it illegal to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” (The case will be argued in the Supreme Court in April.) I’m not interested in the Ohio law itself; rather, I want to sort of tease out some of the ideas around trying to eliminate lies from politics.

Now obviously, there is a big difference between a lie and an opinion. There’s nothing wrong with a candidate saying “I’m the better candidate” even if by whatever standard of measurement is used, that candidate isn’t. Nor is there a problem with a statement like “my opponent will be bad for the voters of our district”. Again, that’s really nothing more than opinion. Have at it. What do they say, “All’s fair in love, war, and politics?” Or something like that.

But let’s consider something different. Let’s say that a candidate says “my opponent was arrested for beating up the underage prostitute that he had tied to the wall in his basement while his pre-school children watched”. Obviously, the aggrieved candidate can deny the allegations, maybe even sue for defamation, but in the eyes of the voters, the damage may have been done (and that lawsuit won’t be resolved until long after the election). Should there be any sort of remedy for a statement like this?

Of course that sort of over-the-top, flat-out bullshit sort of claim is unlikely. But there is a huge gray area between that sort of claim and the type of opinion claim that I discussed above. Is there a line? And if so, where is it?

Our democratic system is supposed to work via the so-called “marketplace of ideas” where competing visions are debated and discussed so that voters can decide which vision and which candidate best reflects their ideals. But as we all know, in today’s political landscape, money plays an enormous role in campaigns. Without money, a candidate can barely get in the “game” to begin with. Perhaps more importantly, a well-funded campaign can literally drown out less well-funded opponents.

So let’s go back to my example above. What if the defamed candidate is wholly innocent of the charges leveled against him, but he doesn’t have enough money in his campaign war chest to air a television ad refuting the allegation? Should he just pack it in and walk away, leaving the world to presume that the claims against him are true? More importantly, should the well-funded candidate be permitted to use the airwaves to spread a falsehood to knock an opponent out of the race?

The problem is that few things rise to the level of demonstrable facts that can be proven to a certainty. And proving a negative (“I did not have sex with that women…”) can be nearly impossible. But there are some things that are empirically, demonstrably provable. Thus, again, the question is one of line drawing.

At the simplest (well, maybe) is the straight numbers-based claim: “The Congressional Budget Office estimates my opponent’s plan will cost $2.1 billion” when, in fact, the CBO actually said that the plan would save $2.1 billion. The claim has nothing to do with whether the plan being referenced is a good idea or not; rather, the issue is that one candidate claim a fact that is demonstrably false (and again, the question of whether it will save or cost is irrelevant; the claim was the CBO said “cost” when, in this scenario, the CBO said “save”).

Or consider the following scenario: Candidate X says “My opponent, Mr. Y, believes in man-made climate change, even though a majority of climatologists say that climate change isn’t real or, even if it is, it isn’t caused by man.” The problem with this statement isn’t that Mr. Y believes in man-made climate change or even whether climate change is real. The “lie” is the claim that “a majority of climatologists say…”. That is not true; we can count climatologists to see what a majority have said. Yet if Mr. Y doesn’t have the resources to blanket television, radio, and newspapers with facts to disprove the statement by Candidate X, then the public may be led, not only to believe in something that is incorrect, but also to vote against Mr. Y on that basis.

Or consider a statement like this: “My opponent believes that women should have the right to have an abortion at any time, for any reason, right up until the moment of birth.” But what if the opponent’s recorded position is that a woman should have the right to an abortion during the first trimester and thereafter only to save the life of the mother?

Or, to borrow (and expand) from a fairly recent episode in Houston, what if a candidate circulates flyers that appear to include a picture of the candidate but which is, in fact, not only not of the actual candidate but of someone of a different race (the idea being to convince people to vote for or against a candidate on the basis of race … the wrong race)? Or what if the flyer simply includes a fake endorsement?

In each of the preceding scenarios, the marketplace of ideas may not work or at least may not work if you think that the marketplace of ideas shouldn’t be solely dependent on which idea has more billionaires supporting it.

Think of it this way: If you buy a car because of the claims from the manufacturer that it will get 60 miles per gallon and has certain safety features but, it turns out, the car only gets 20 miles per gallon and doesn’t actually have those safety features, then you would probably have a claim against the manufacturer for fraud. If you ask your doctor to prescribe a certain medicine to help your condition after hearing an add that the medicine helps 95% of people with that condition but later learn that the medicine is actually only helpful for 5% of people and actually harms most others, then wouldn’t you feel aggrieved? In most all consumer transactions, the consumer has at least some sort of recourse against a seller who relies upon fraud to make the sale. But what happens when a politician engages in similar behavior to secure, not money, but votes?

Now I’m also sensitive to the notion that our political campaigns ought not be fought in the courts. Bush v. Gore was bad enough. But if every campaign statement or flyer was the subject of a possible lawsuit or criminal prosecution, elections could turn less on ideas and the quality of candidates and more on the political leanings of judges. Yet if politicians had to focus more on what they want to do (or not do) and less on trying to tear down the opposing candidate, then perhaps that would be a good thing.

So, on one hand I feel like we should be concerned about the use of outright falsehoods in the electoral process. Perhaps, though, that’s just the Pollyanna in me. Perhaps it’s just too difficult to set a standard of what is over the proverbial line or to find a way to decide precisely what qualifies as a demonstrable fact. Perhaps, even if we could find resolutions to those sorts of thorny questions, it would still be too difficult and have too much of a potential impact on our elections to be a workable solution. But until we find a way to even up the playing field and lesson the impact of money, especially outside money that isn’t accountable to a candidate or campaign, then I worry about the impact that outright falsehoods may play in determining who voters elect to represent them.

The only thing that I can think of that should operate as a remedy to these sorts of situations is the press. If reporters viewed it as their job to fact check claims of candidates and call out a lie when they hear it, then perhaps this all would be less of a worry. However, in today’s media, where there is so much fear of being perceived as biased, where there’s a need to tell “both sides” even if one side has no rational basis in fact or reality, and where it’s better to spend time speculating that aliens made a Malaysian airliner disappear or bemoaning the latest breakup of a celebrity couple, we can’t really expect reporters (or their editors) to engage in real journalism and report on what is and isn’t true.

Or, I suppose, we could rely on educated voters to ask hard questions of candidates and to really push them to defend their lies. But how many voters are educated enough to recognize the lie and ask the right question. More importantly, how many voters, other than in Iowa and New Hampshire I suppose, even get a chance to ask a question of a politician in the first place? And how often, when confronted by a difficult or a hostile question, do politicians even, you know, answer?

I wish that easily disproven lies weren’t a part of our politics. I wish that there was an easy and workable way to “punish” a candidate who resorts to a disprovable lie. I wish that we could simply make a politician defend a lie or answer questions about the claim. And I wish that political reporters would report on issues rather than just tell us which horse is winning. But, other than convincing reporters to engage in better journalism, I don’t know if there is a way to get there that doesn’t have unintended consequences far worse than the core problem.

I want our democracy to be the best that it can be. Perhaps “the best” has to include a few warts and problems. Perhaps it’s simply up to the electorate to become more involved and to be better consumers of political information. But there’s nothing wrong with wishing that the lie wasn’t such a useful tool.

Oh, and I can’t help but finish this post by including the text of the amicus brief filed by the CATO Institute (and called to my attention by Doug Masson):

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular humanist professors of Chicano studies.

Anyway, I’m inclined to think that there’s not much that we can do from a legal framework to take lies out of politics. I think that we’d have a lot of trouble doing so and would probably unleash a flood of unintended consequences that might be worse than the problem. Might. So wishing that politics was free of the political lie as a useful tool is, in essence, nothing more than that. A wish.

But nothing says that we voters can’t do a better job of holding our candidates more accountable for what they say. We can form the punishment for those who lie to us by simply withholding our support, both financial and at the ballot box. And maybe that’s how the system is supposed to work.

Thought Exercise on the Uses of the Cudgel of “Religious Freedom”

Lately, we’ve seen a number of states, most notably Arizona, consider or even pass legislation that would permit discrimination in order to “protect” the “religious freedom” of the person doing the discriminating (rather than protecting the person being discriminated against). Obviously, the impetus for these bills has been the “fear” that a baker, florist, or photographer might have to provide services for a same-sex marriage. But the sorts of bills that we’ve seen have gone far beyond addressing that seemingly narrow concern and have, instead, been far broader.

Take, for example the bill that was vetoed in Arizona last week, which provided that implementation of laws “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” unless the law is “in furtherance of a compelling governmental interest” and the “least restrictive means of furthering that compelling governmental interest”. The burden of proof appears to be on the person opposing the claim of religious freedom. Thus, even if Arizona had a law that prohibited discrimination against a person on the basis of sexual orientation (which it doesn’t), a person could claim that baking a wedding cake for a same-sex wedding (which isn’t permitted in Arizona) placed a substantial burden on the exercise* of the baker’s religion and it would be up to the same-sex couple to prove either than the burden wasn’t substantial or that the law furthered a compelling government interest and was the least restrictive means. Not an easy burden of proof.

But let’s stop thinking just about gay couples wanting to get married and broaden our view to what else these sorts of “protections” of religious freedom might cover, and then see what we think about “religious freedom” in these alternate contexts. Thus, even if you believe that a religious business** should be able to decline to provide services to a same-sex wedding on religious grounds, which of the following would you also agree would be acceptable?

Could that baker also refuse to sell cookies to a gay couple that walks in off the street? What if it’s just a single gay guy or even someone who might be gay? What if it’s a gay guy who says that he doesn’t “engage in the homosexual lifestyle” anymore (love the sinner, hate the sin, so to speak…)? Can the baker simply refuse to do any business at all with homosexuals and cite his “religious freedom” as a sort of license to discriminate? Or is there some kind of line between homosexuality generally and same-sex marriage, in particular?

How about, instead of a gay couple, the prospective customer is a divorced woman and the baker is a devout Catholic who believes that marriage is eternal and that divorce is improper? Could the baker refuse to bake a cake for the woman’s remarriage? Or what if, instead of being divorced, she was a single mother who bore a child out of wedlock? Could the baker refuse her service on those grounds? What if the woman’s fiancé wasn’t Catholic? Could the baker refuse her service because he believes that interfaith marriages are prohibited by his religion?

What if the baker believes that the only way to salvation is through Jesus (isn’t that what the sign people are always holding up at football games means?). Could the baker refuse to sell cookies to anyone who hasn’t been “saved” by Jesus? Or, said differently, could the baker refuse to sell cookies to Jews, Muslims, and atheists because those prospective customers don’t have a relationship with the baker’s god (or at least not the sort of relationship that the baker deems requisite)? Could the baker adopt and enforce a “Christians only” policy for his bakery? What about Catholics only?

Now, let’s move away from the hypothetical baker and turn our attention, instead, to the lunch counter at the local diner. Do your answers to any of the preceding change with the change in locale or type of business? If so, why? If so, why would it be OK for a baker to decline to deliver a cake to a same-sex wedding but it wouldn’t be OK for the owner of a diner to turn away a honeymooning same-sex couple?

So what if the prospective customer is African-American or Latino and the owner of the diner is a fundamentalist Mormon who believes that dark-skinned people are somehow lesser (I don’t really understand Mormon philosophy, but from what I’ve read, The Book of Mormon places dark-skinned people in a lesser role of some kind; feel free to correct me if my understanding is in error)? What if the owner of the diner was a white, Christian segregationist that used the Bible to justify keeping blacks out of his store prior to the Civil Rights Act? Should he be able to return to the era of keeping a “whites only” lunch counter on the basis of his sincerely held religious belief that G-d created separate races and intended for them to be kept separate?

Should the Jewish owner of a deli be permitted to refuse to serve someone with a tattoo, someone who eats shrimp, someone who eats cheeseburgers, gets haircuts, wears garments made of mixed fabrics, or kneels in front of a cross? Should that Jewish deli owner be permitted to refuse to serve someone of Palestinian or German origin? Should a Jewish deli owner suddenly be allowed to violate the terms of his lease and close his restaurant on Saturday, even though the lease requires him to be open? Or, if the business in question was a auto dealership in Indiana, could its observant Jewish owner sell autos on Sunday notwithstanding the “blue law” prohibition against auto sales on Sunday; after all, the observant Jewish owner in question couldn’t sell cars on Saturday due to work being forbidden on his Sabbath, so wouldn’t prohibiting from selling autos on the Christian Sabbath violate his religious freedom?

And what about, say, hospitals? Should a Catholic hospital be permitted to refuse to treat gay patients? What about divorced patients? What about patients who support the death penalty or who use birth control or who voted for the candidate that the Bishop said wasn’t a good Catholic? Should a Catholic hospital be permitted to turn away patients who aren’t Catholic (or at least Christian)? Perhaps we should have separate (but equal, of course) hospitals for Catholics and Jews and Muslims and Hindus and … hmmm, just how many hospitals would we need? Are there enough Sikhs in Indianapolis to support their own hospital if “Christian” hospitals decide that Sikhs look a bit too much like Muslims to be treated?

Could a Muslim taxi driver refuse to pick up a woman who isn’t wearing a veil or isn’t accompanied by a man? Could that Muslim taxi driver refuse to pick up someone carrying alcohol? Could that Muslim taxi driver refuse to deliver a passenger to a restaurant that specializes in pork ribs?

And I suppose that Hindu florists could refuse to provide flowers to a wedding at which meat will be served, right? Maybe “religious” hotel owners could refuse to accept reservations from unmarried couples. Perhaps they could just require unmarried couples to sign a pledge not to engage in pre-marital sex in the hotel bed.

Obviously, if we start allowing people to operate their businesses with exceptions to anti-discrimination laws in order to protect “religious freedom”, then things are going to get very complicated, very quickly. Hopefully, businesses will start putting signs up in their windows to warn prospective customers that the business observes a “no gays allowed” or “whites only” or “Muslims not welcome” policy. After all, I’d hate to wait in line to buy some cookies only to learn that the baker didn’t serve Jews.

“But, but, but…” I hear you saying, “the only objection is to serving gays, because same-sex marriage is against the teachings of the Bible!” First, I’m not going to get back into the issue of what the Bible really says about homosexuals. I’ve talked about that plenty (and probably will so again). Rather, let me ask this question: The Bible demands many things and prohibits many other things; so why is it just same-sex marriage (or homosexuality, more generally) that triggers these claims of “religious freedom”? What is it about homosexuality that elevates that particular “prohibition” above all of the other requirements and prohibitions in the Bible? And if that prohibition is really so important, why aren’t we putting to death men who engage in homosexual behavior as the Bible also requires? You know, for religious freedom?

Um, wait a minute. Didn’t the use of the “religious freedom” argument get its first real airing with regard to the Affordable Care Act’s requirement that employer-provided insurance include birth control? Yep. So obviously, it isn’t just homosexuality in play. Nope. It’s homosexuality and reproductive rights. Or perhaps it’s homosexuality and sexuality. Anything else? But of course, that doesn’t answer the question of why these two issues are trigger a “right” to religious freedom, but other Biblical commands and prohibitions don’t (yet).

One of the arguments that I’ve heard, is that homosexuality is different from the other sorts of protected classes, because homosexuality is not an “inherent characteristic” but is, rather, a “self-professed behavior” or a “choice”. And, thus, homosexuality should not be entitled to protection from discrimination in the same way that we protect race, religion, gender, national origin, and so forth. Um, wait. Religion? Isn’t that a choice, too? But we protect people from discrimination on the basis of their religion. How can it be that religious freedom can’t be a reason to discriminate on the basis of religion itself. You don’t suppose that the reason for discriminating might actually have little to do religion itself and more to do with basic attitudes toward homosexuality (icky!) or sexuality (slut!), do you?

There is another point that I hadn’t really considered until I came across the article How Religious-Freedom Laws Could Come Back to Hurt the Faithful published in The Atlantic:

Interestingly, the conservative Christians who support these bills also believe that America is becoming increasingly antagonistic toward members of their own faith. They have long decried the secularizing and pluralizing of America’s public square. They’ve argued that America is, in Robert Bork’s phrase, “slouching toward Gomorrah” and becoming post-Christian or even anti-Christian.

Albert Mohler, president of the Southern Baptist Theological Seminary, who supports these bills, also once wrote, “The most basic contours of American culture have been radically altered. The so-called Judeo-Christian consensus of the last millennium has given way to a post-modern, post-Christian, post-Western cultural crisis which threatens the very heart of our culture.”

If Christians really believe they are becoming a marginalized movement, why would they want to disempower marginalized people in the marketplace? It’s easy to codify your own biases when you’re part of the majority and get to be the one refusing services to others. But what if you’re the minority? What if others are turning you away because they think you are the abominable one?

Many Christians believe that the Book of Revelation predicts a coming time of persecution and evil. In the apocalyptic book’s 13th chapter, it is predicted that a time will come when Christians won’t be able to buy or sell in the marketplace. If Christians believe this time is coming, they must also ask, “How might such a reality be realized?” Could it be that they are unwittingly becoming the authors of their own demise?

Conservative Christian activists often argue that these bills put us on a ride down a slippery slope that could lead to the government forcing conservative Christian pastors to perform same-sex weddings against their wills. (Never mind that legal exemptions for houses of worship and pastors are woven deeply into American law or that there is no historical precedent for such predictions.)

But these prophets of doom only acknowledge one side of the slope. They fail to consider how these laws could be used against members of their own communities. If you are able to discriminate against others on the basis of religious conviction, others must be allowed to do the same when you are on the other side of the counter. You can’t have your wedding cake and eat it too.

The ancient King Solomon, a man Christians believe to be the wisest person ever to live, once wrote, “Whoever digs a pit will fall into it; if someone rolls a stone, it will roll back on them.”

If this is the pit that Christians intend to dig, they better line the bottom with pillows.

Furthermore, if we can discriminate on the basis of “religious freedom”, why can’t we also act in other ways or ignore other laws that might impact our religious freedoms? Why can’t I smoke peyote if my religion requires it? Why can’t I sacrifice an animal in the public square if I need to do so to please my deity’s requirements? Why can’t I stone my disobedient child or rape your daughter and then pay you a few shekels for the right to marry her? Why can’t I have four wives is Allah says that’s acceptable?

If I don’t drive on shabbat, then shouldn’t I get a 1/7th discount on the portion of my taxes that pays for roads? If I’m opposed to the death penalty or to war, then shouldn’t my taxes be excluded from paying for those? If meat is forbidden to my religion, then why should my tax dollars pay for USDA meat inspections? If not, then isn’t my religious freedom being infringed by making me pay for things that I don’t or can’t use because of my religious beliefs?

Thus, the real question to ask is whether applying the “defense” of religious freedom (or is it an offensive weapon to be wielded like a cudgel against those who don’t share your religious beliefs?) is available to all people and all religious beliefs for all types of conduct, or if only those professing the right religious beliefs are entitled to their particular freedoms (and only for those religious obligations or prohibitions that they care about, hypocrisy be damned [yes, pun intended]).

Either we are a secular society that respects religions but recognizes that laws of general applicability can’t be trumped or vetoed by religious belief or we will become a highly fragmented realm made up of separate, and largely unequal, religious groups fighting over their respective place in a theocratic system. And based on human history, when religions come into conflict, especially when there is either money or power involved, the result tends to cause streets to run red with the blood of those killed in the name of deity or theology.

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*This post isn’t really about the Arizona bill, so I don’t want to get too lost in the weeds. But it is probably worth noting how Arizona’s law defines “exercise of religion”: “‘Exercise of religion’ means the practice or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.”

**Businesses aren’t religious; people are. But that’s a discussion for another day. For the purpose of today’s discussion, I’ll pretend that a business has religious views. In the meantime, please let me know next time you see Hobby Lobby in the pews, a Catholic business in a confessional or taking communion, a Jewish business getting a bar mitzvah, or a Muslim business making the hajj.