Should governments pass new laws outlawing “lying” on broadcasts or in print media? U.S. presidential candidate Donald Trump has threatened to “open up libel laws” if he becomes president so those who disagree with him, or, “lie” about him can be sued and he says he’ll win “lots of money” against publications like The New York Times and The Washington Post.
How would that affect freedom of speech? The Atlantic reported on a debate in Canada in 2011 over broadcast regulations that outlaw lying, but the regulations have never been enforced. Is that because Canadians are so polite, avoiding conflict with each other and law-abiding they never even think of lying on television or in print? Or because the Canadian government believes that prosecuting someone for lying — knowingly spreading a falsehood on a broadcast — would be largely a matter of opinion and might unfairly restrict free speech?
Laws are already on the books that protect the public from lies, in the form of defamation — libel and slander — as well as fraud and false advertising. Egregious examples of knowingly lying that causes harm to individuals could be prosecuted under those laws.
However, when lying about celebrities or public officials, the U.S. Supreme Court has ruled that plaintiffs must prove not only that the statement was false but that the publisher or broadcaster KNEW THAT IT WAS FALSE or demonstrated reckless disregard for whether it was false or not. In other words, the liar engaged in “actual malice.”
An Ohio law, similar to one in 17 other states, that forbade candidates and issue groups from making false statements in advertising has been struck down. The US Supreme Court, by a unanimous 9-0 vote in 2014, ruled that an anti-abortion group, Susan B. Anthony List, had every right to mount a First Amendment challenge to the Ohio law, which criminalized “false” political speech. (Susan B. Anthony List v. Driehaus).
In 2010, SAL list in advertisements accused a Democratic candidate of favoring abortion because he supported President Barack Obama’s Affordable Care Act. The candidate maintained that he personally opposed abortion despite his support for the law.
The Ohio statute prohibited candidates and issue groups from making false statements during a political campaign. The law made lying during a political campaign a crime punishable by up to six months in jail, and included a fine of up to $5,000 for putting out campaign literature or advertisements saying anything known to be false about a candidate’s voting record. The law also assigned a state agency, the Ohio Elections Commissions, to police falsity in campaigning, with the authority to reprimand for violations.
SBA List was summoned before the Ohio elections commission and charged with violating the law when it attempted to run billboard ads opposing the reelection of Rep. Steve Driehaus (D). The owner of a billboard company refused to run the group’s billboards after receiving threats of legal action.
In late February 2016, the U.S. Court of Appeals for the 6th Circuit fully struck down the Ohio law. “Ohio’s political false-statements laws are content-based restrictions targeting core political speech that are not narrowly tailored to serve the state’s admittedly compelling interest in conducting fair elections,” the three-judge panel said.
Cincinnati federal Judge Timothy Black wrote that the answer to false statements in politics is “not to force silence, but to encourage truthful speech in response, and to let the voters, not the government, decide what the political truth is.”
“At one time, the court might’ve protected falsehood by saying that it’s too hard to tell truth from lies, or that punishing lies will deter some true speech,” wrote Noah Feldman, a professor of constitutional and international law at Harvard. This latest decision broadens the protection of false speech “because lies are part of the universe of self-expression,” Feldman wrote, and shouldn’t be subject to strict scrutiny by government agencies that could easily abuse their power and suppress free speech.
Trump should be glad that U.S. libel law are as liberal as they are. If the libel laws are strengthened to protect public officials from defamation, his assertions that President Barack Obama is not a U.S. citizen could quite conceivably be considered defamation and show actual malice — Trump’s statements were either knowingly false or demonstrated a “reckless disregard for the truth”