Political lies: Constitutionally protected free speech?

Political lies: Constitutionally protected free speech?

It is legal for politicians to lie when running for office. Politicians are allowed to lie to us. Prohibiting them from doing so violates their First Amendment right to free speech.

Seek the truth in politics and you might not find it. (Image via Pixabay, CC 0.0)

WASHINGTON, May 15, 2016 — It is legal for politicians to lie when running for office. Again. Politicians are allowed to lie to us. Prohibiting them from doing so violates their First Amendment right to free speech. So said the U.S. 6th Circuit Court of Appeals, when it upheld a U.S. District Court ruling in an Ohio case.

If the truth will set you free, deceit holds the key to money, fame, revenge, power and, too often, election.

“Political speech is at the core of First Amendment protections,” said the chief judge. “Even false speech receives some constitutional protection.”

An anti-abortion group in Ohio in 2010 wanted to erect a billboard in the Cincinnati area that claimed the Affordable Care Act (Obamacare) allowed taxpayer-funded abortions. The former Democratic U.S. Representative Steve Driehaus said the statement was false because the law stipulated that no federal funds could be spent to pay for abortions.

The case wound around and ultimately we have the proclamation: political advertising lies are protected free speech under the First Amendment. The Court looked at an earlier 2012 Supreme Court case, where Xavier Alvarez claimed he had been awarded the Congressional Medal of Honor, in violation of the Stolen Valor Act of 2005. The Supreme Court ruled that, despite the interest in protecting the honor of actual recipients of the military honor and even though Alvarez’ claim was completely untrue, he could not be prosecuted, as such an action would be a restraint on his First Amendment right to free speech.

Astonishingly, truth means nothing in political advertising. The common tagline of political ads, “I approve this message,” does not mean the ad is true. When candidates know the ad is false, they are literally saying they approve the lie. Moreover, a candidate espousing those approval words qualifies him or her for the cheapest television and radio ad rates, because the ad then complies with the Bipartisan Campaign Reform Act.

Even if a federal candidate’s ad is deceptive, rules of the Federal Communications Commission says that it can run.

The intersection of political ads and other forms of advertising falling under what are known as “truth-in-advertising” laws makes the common perception of political ads believable. Most people believe political ads or feel there must be some truth to them because of the incomplete understanding of the applicability of truth-in-advertising laws. The common perception is that the ads must be true, or “they” would not let them run on television.

Truth-in-advertising laws were created to protect consumers from misleading statements about food, drugs, chemicals, toilet paper, electronics and the like. They apply to things sold to us.

If you lie about razor blades, you can be prosecuted. If you lie about political issues you get a pass. Political consultants and politicians know this and count on it.

Politicians can lie in ads, they can lie about what they said and they can lie about their opponents. Harriett Balkind, writing for Altnet Media, says that studies show that “even when people are told that a fact is a lie, they remember it as the truth.” Amy Sullivan, writing for Time, said “a far greater percentage of voters hear the original lie in a campaign ad than ever read about the fact-checked version in a local paper or website.”

All is not lost, however. According to the 2013 McCann Truth About Politics Study, the public thinks politicians are less truthful than they used to be (really?) and will say anything to get elected.

Blame George Washington, who confessed to cutting down a cherry tree and said “I cannot tell a lie” for creating the standard of honesty.

Andrew Jackson wasn’t impressed. In 1828 he campaigned telling Southerners that he was for a “judicious tariff,” meaning a low tariff. Once he was elected, Congress passed a high tariff that caused outraged Southern leaders to talk about nullification and secession.

Maybe President Jimmy Carter heard Washington’s voice when he vowed during his presidential campaign: “I will never tell a lie to the American people.” Apparently, that promise was kept. He was swept out of office after one term.

Presidential lies might be considered political, but more often are not election based, and according to John Blake, writing for CNN, fall into being either “forgivable” or “unforgivable.” Forgivable lies by presidents are those told to keep the nation from harm. The unforgivable lies are intended to cover up crimes or incompetence or, sometimes, to protect a president’s political future.

Interestingly enough, the public forgives lies by presidents when they perceive that the lie serves the national interests. Bill Clinton remains a hero and George W. Bush remains in the doghouse.

Bill Clinton: “I did not have sex with that woman.”

George W. Bush: “Invading Iraq was necessary to eliminate weapons of mass destruction.”

Ronald Reagan in 1986: “We did not, I repeat, did not trade weapons or anything else to Iran for hostages, nor will we.” Four months later it was revealed that the U.S. did exactly what Reagan denied.

Lyndon Johnson kept the full cost of spending on the Vietnam War a secret to preserve his political power.

Richard Nixon: In response to mounting suspicions that he had knowledge of the Watergate burglaries, he stood in front of hundreds of members of the press and proclaimed, “I am not a crook.” When the tapes came out and he was about to be impeached, he resigned.

James Polk told Congress that Mexico invaded us in 1846 because he wanted to take the Southwest from them. That little fib led to the Mexican-American War.

Dwight Eisenhower told us that the U.S. was not flying U-2 spy planes over the Soviet Union. When the Soviet Union shot down one of the planes, that lie’s life ended abruptly.

In “The Paradoxes of the American Presidency,” Thomas Cronin and Michael Genovese said, “we want a decent, caring and compassionate president, yet we admire a cunning, guileful, and on occasions that warrant it, even a ruthless, manipulative president.”

Mommy, I didn’t take those cookies.


Paul A. Samakow is an attorney licensed in Maryland and Virginia and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.

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