A Constitutional Right to Lie


In this point I want to describe, and call attention to, an important anomaly in our political economy.

I choose the neutral word “anomaly” because I don’t mean to express or imply an opinion about whether this anomaly is an unequivocal good, or an unequivocal bad that needs somehow to be fixed, or a necessary evil. I have an opinion on that, but I won’t share it here. Here, I only wish to describe the situation.

Consider the rules that apply to lying and truth telling in connection with four activities: one, vying for public office; two, commercial sales of goods and services; three, sale of securities; and four, advocacy by lawyers before a court.

The central point I wish to make is that, in the United States, the second, third, and fourth types of activity all have one important thing in common that is not shared by the first activity: severe legal consequences for mendacity and fraud.

Commercial Sale of Goods and Services

People who are in the business of selling goods and services on the open market are no better than the rest of the human race. Some of them have a natural tendency to lie and deceive, if they can get away with it. And others, to whom lying does not come quite so naturally, would begin to prevaricate out of necessity if all their competitors were lying and getting away with it.

And, moreover, be it said, a fair amount of lying and misrepresentation occurs.

However—however—deceptive sales practices are a serious violation of the Federal Trade Commission Act, similar legislation in all fifty states, and other legal principles. Multiple enforcers can and do sue for redress. Consumer class actions are common. And competitors have wide latitude to sue for trade defamation, unfair competition, and other legal offenses.

In the commercial sale of goods and services, the consequences of consumer deception are severe enough that it generally does not profit a seller to deceive.

Sale of Securities

Likewise, federal securities law places severe restraints on telling lies in connection with the sale of stocks and bonds, as does state law.

Securities fraud still happens, but it is generally not a profitable course of conduct.

Advocacy Before a Court

Attorneys who say things to a court they know to be untrue, who suborn perjury, who destroy or withhold relevant evidence, or who engage in other similar activities are likely to find themselves disbarred, if indeed, they escape jail.

Like stock brokers and salesmen, attorneys are not all paragons of honesty and ethical behavior. But the law hems in and heavily disincentivizes any inclination they might have to bend the truth.

And law graduates who cannot grasp the distinction between permissible and appropriate advocacy, on the one hand, and fraud on the court, on the other, are likely to find themselves pursuing another line of work.

Politicians and the Constitutional Right to Lie

In stark contrast, it is generally understood that politicians either have an absolute constitutional right, or at least a near absolute right, to lie through their teeth. (The case most commonly cited is United States v. Alvarez, 567 U.S. 709 (2012), but other Supreme Court cases have pointed in the same direction. See, for example, Eastern R. Conference v. Noerr Motors, 365 U.S. 127 (1961) and New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In the remote event you wish to delve more deeply, you might begin here.)

The Constitutional Right to Lie: a Key Consequence

Lawyers, commercial sellers, and people pushing stock are all faced with very substantial legal disincentives to engage in outright falsehood. Freed of such restrictions, the only restraints on politicians are (a) their consciences and (b) the fact that the press and their political adversaries will call them out for their lies.

But what if they are catering to an audience that has been brainwashed not to believe the fact-based media and to disbelieve any claim by the other tribe? If their audience would not believe a Democrat who told them that Tuesday is the day after Monday, then a politician of the other party is free to declare that in fact Sunday is the day after Tuesday. In such a circumstance, the constitutional order is challenged. It has been claimed—inaccurately, I’m sure—that “The Navy is a master plan designed by geniuses for execution by idiots.” Whatever may be the case with respect to the Navy, our republic was not designed for an electorate made up of idiots.

There is always conscience and self-respect. But the problem is that when the incentives to lie become powerful enough, and the disincentives to truth telling become reach a certain level, anyone with a conscience will be chewed up and spat out.

Actually, I forgot to mention a third factor, (c), that constrains lies in the long run. When your lies lead to ruinous public policy, some of your gullible base will wise up.

Take, for example, those large blue arrows, pointing left, some of whom I mentioned in my recent post on developments in the House races.