The protected role that outright lying has obtained under recent legal theory contains some of the most intractable of all challenges to preserving democracy. The effective good that democratic government can produce, as compared to all other known systems, is directly dependent on the moral awareness and actions of The People and it is also directly dependent on their having a grasp of THE TRUTH, of reality, of the actual facts of the world and life. Both of those are directly attacked by the growing protection that lying is being given by the Supreme Court and other courts. The fact that, despite what such justices as Brennan may have thought they were doing in protecting lying, it has benefited the very same political faction they ruled against is no great surprise. Segregation was an inherently immoral act, violating the rights of a class of people on the basis of lies and appeals to fear exacerbated by ignorance.
That a legal permission to lie has benefited those who want to tell lies, incite fear and keep people in ignorance to gain power and do evil is not any kind of a logical disconnect that needs to be bridged, except, perhaps, in the kinds of minds that elite law schools form and journalists prefer to have. That it has harmed people who want to promote democracy, equality and a decent, moral life is also no shock. Lies benefit inequality, bigotry and oligarchic crooks. Lies don't tend to benefit morality, people could hardly have been expected to notice the real life effect of lying as a harm if lying promoted the common good.
As much as I would wish it were the case, I don't think that yesterday's ruling in Abramski v. United States is a signal of a major realization by the Supreme Court that it has, through a short-sighted, intellectually compromised doctrine that protects lying, enabled the very people who brought the case and supported lying on government forms. The same court, unanimously, allowed a challenge to the Ohio law that bans lying in political campaigns brought by the dishonestly named Susan B. Anthony List.
The case was brought by Susan B. Anthony List, anantiabortion group, and Coalition Opposed to Additional Spending and Taxes. Both had sought to criticize Steve Driehaus, former representative and a Democrat, in the midst of what turned out to be his unsuccessful 2010 run for reelection to the House.
They asserted that his vote in favor of President Obama’s health care law, the Affordable Care Act, could be interpreted as one “for taxpayer-funded abortion.” The Supreme Court took no position on the truth of that statement.
The justices said Susan B. Anthony List does not have to wait until it is prosecuted under the law to claim its First Amendment rights have been infringed.
The court did not directly rule on the constitutionality of the law, but the decision sends the case back to a lower court to consider the question.
Driehaus filed a complaint against the antiabortion group with the Ohio Elections Commission, which makes preliminary determinations and can recommend criminal prosecutions. It issued a finding of probable cause that the group had violated the law. Driehaus dropped his complaint after he lost the election and before the case had gotten much further.
The Sixth US Circuit Court of Appeals in Cincinnati dismissed the groups’ suit challenging the law, saying they no longer had anything to worry about.
In his opinion reversing that ruling, Thomas said the groups had shown that they intended to repeat their critique of the Affordable Care Act against other candidates and that “the threat of future enforcement of the false statement statute is substantial.” That meant, he said, that their lawsuit could move forward.
That a bunch of lawyers who have never held elected office, have never campaigned for one, would entirely ignore the harm that well funded lies play in our politics, isn't much less short sighted than the previous rulings protecting lies. That a state legislature, consisting of ELECTED representatives, politicians, would have a more realistic view of the harm to democracy that lies represent than unelected judges isn't a surprise. The reverence with which the Supremes of the Supreme Court are regarded and are to be regarded seems to go to their heads.
The place that elections have in giving the entire government its legitimacy seems to be regularly lost on Supreme Courts, which, somehow, don't seem to believe that their own legitimacy is effected by them. The respect that people should have for The Court is an indirect result of their confirmation by an elected body (undemocratically elected, though the Senate is) and an elected president but there is no other source of legitimacy for their rulings than that. If the elections that choose those who select them are based on lies, slander and unreality, they share in the defects and distortions that result in that. They might believe they are immune to the effects of The People who are deceived by the liars they enable, but, eventually, they and their work will be discredited by it. The quality of the present court is a direct result of some of the worst appointments to it in its history, made by presidents and an oligarchich party which was the major beneficiary of the Sullivan case, Buckley v. Valeo, and other cases that too many liberals on the court supported out of some absurd free speech- free press absolutism that entirely ignores the role that honesty and lying have on the entire process of democracy.
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Here is a piece I wrote four years ago asking what would happen if all lies were abolished.
Saturday, May 08, 2010
Lies And Free Speech [Anthony McCarthy]
Reality is real, a wise Rabbi once said. That which really happens is what our lives are made of. What really happens is the source of whatever benefit we can get from life as well as the source of all harm.
It is the professed faith, at least, of most of us that the real is good, or at least unavoidable. And it is the real that has to be contended with in our actions and thoughts. What is asserted to be unreal is denigrated and the charge of believing in what is deemed to not be real constitutes one of the more serious contemporary sins among the relatively educated class of most western societies. At least that is the profession of faith which most of us would make if pressed. Which I won’t investigate further just now.
The esteem that the real is given is based in hard won experience about the consequences of wishful thinking unconditioned by consideration of the predictable results that flow from our actions. Often the lessons are unwelcome. But experience keeps a hard school as compared to desire, until the final exam results are in.
When bad results can’t be avoided, the least foolish thing to do is to forego that part of desire which leads to them. Oligarchies and other elite systems have rigged things, to insure that it’s others who pay the cost of actions and conditions not of their making. The history of non-democratic governments could be written in the measures which elites have taken to make other people pay for their privilege and the eventual collapse due to the accretions of those awful results.
Democracy is dependent on The People making decisions about governing society and making the laws with which a society regulates itself and its members. The quality of those laws, the quality of the results, inescapably depend on the extent to which those laws are in accord with reality. The farther they are from reality, the worse results can be expected. Experience seems to confirm this idea, the seductions of self-interest being very powerful, only hard experience consciously considered could overcome that motive to be deluded. I’ll also note that democracy is also dependent on equality before those laws. Very crudely put, laws that result in inequality will inevitably lead to a similar situation to the one described in the last paragraph.
We have an especially dramatic example of what happens when laws and actions are dangerously out of sync with what is real in the Gulf Oil disaster. A disaster which could destroy one of the most important eco-systems which life really and inescapably does depend on. Clearly the laws and regulations that allowed that well to be drilled were based on false information, much of it provided by people with degrees in science and engineering, some of whom certainly knew the possibility of something like this happening. It seems when large profits are in the mix, that these catastrophes repeatedly override experience, the lessons of past ones and the resultant destruction of the very basis of life. Yet those who repeatedly create them, are always able to profit from them. There is a reason for this situation.
My question, stemming from this past week’s discussion and the spectacle of the Gulf oil disaster, is there a right to lie?
I mean is there a real, and not just theoretical right to lie, which should be allowed to remain embedded in our laws and which has a real effect in real life. Most importantly, given the reality of how our country is ruled in 2010, what are the consequences of a legal system, a free press and a society which allows profitable and convenient lying to enjoy the functional status of a civil right*? Under the regime of free speech, free press, the champions of free speech apparently believe there is and the danger it imposes on all of us, isn't something they really care about.
Is there a right to knowingly lie in a way that can result in a catastrophe like the one we are all fixed on in the Gulf of Mexico**? Is there a right to lie in a way that will put liars in control of our government and regulatory agencies, and our courts? Don’t forget the courts, which, often don’t seem to feel it is their job to punish the most massively consequential lies, so long as those aren’t told in court, under oath or in a context that can be construed as the equivalent of a contract. And quite often, even when those are. It is exactly that part of the government which is supposed to consider what is real and what isn’t that has allowed the corporations and the congress and administrations to ignore reality as hard experience shows will obviously lead to disaster.
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I’m sure that, as in the discussion of violent porn, this question will elicit an immediate response with the most extreme of hypothetical scenarios presented. It’s often the classic questions. What about lying to the Nazis about where the Jewish children are hidden? That kind of thing. And, of course, when those situations are real, they are all important. Of course, any moral person with a functioning brain would lie to the Nazis. But pretending that moral imperative to lie as an exculpatory factor in the official lies that gush like oil from the insanely drilled hole in the Gulf, is willfully and stunningly dishonest. The two situations are made definitively different by the illegitimacy of the Nazis’ genocide and their demented despotism. Naziism can, in no way, be equated with the aspirations and the goals of egalitarian democracy. To deny that difference is to lie, to assert those two situations are equivalent is a colossal lie. The imperative to lie is founded in the choices of Nazis. The requirement to tell the truth an essential prerequisite for democracy to be possible.
In my experience, the very people who would bring up this hypothetical in defense of lying are the same who will absolutely hold that any suppression of Nazi propaganda is a crime against civil liberties. Those European countries whose children were rounded up and murdered by the Nazis are often criticized for their outlawing of Naziism and Holocaust denial. This pseudo-ethical stand is an example of denying the hardest of reality in favor of the soft comfort of an abstract principle.
The history of that genocide is as real a fact as exists. It is as real as anything in science or mathematics. It is more real than anything asserted in the entire history of philosophy. It is a definitive justification for the suppression of Naziism. Denial of a that lesson, consisting of the murders of millions of innocent people, discredits those who refuse to learn it. There comes a time when you have to acknowledge a lesson like that delegitimizes an abstract principle that airily accepts the possibility of its repetition. You just do. Eventually people have to stop pretending that is a serious point of view held by credible people. And the same thing can be said for other genocides, the extermination of the population of Tasmania by the British, the genocides on every continent that continue to today. Genocide didn’t end. It is a constant danger around the world today.
The clear morality of lying to save innocent people doesn’t set aside the fatal effect of serious lying in a democratic society. In fact, one of the likely cumulative results of that kind of lie, is the supplanting of democracy with despotism, and despotisms always try to keep themselves in power by the kind of violence that comprises the extreme hypothetical of the “free speech” absolutist.
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The only legitimate reason for a government to exist is for the protection of The People and the promotion of their common good and other such benefits. Foremost, that requires protection of the biosphere that all rights depend on. To do that, we have found, a democratic government is indispensable.
As an extension of our personal rights and the necessity of their protection, we also find it necessary to protect democratic government. Our laws have protections of our constitution built into them, laws that protect the government against attack. Even the Bill of Rights and the rest of the protections of individual liberties are held to allow anti-treason and similar laws. Clearly supporting the enemies of the United States is not expression that is without legal jeopardy for those who express it in an actionable manner, especially during times of war.
But there is a far greater danger to a democratic society than the ones we are all told to fear, one that is allowed the freest of free reign today, and no where more freely than those in the mass media and government who are deflecting attention with fear of terrorism, often based on nothing in reality.
Why should a democratic society allow lying about serious public issues? It shouldn’t. It certainly shouldn’t allow it in the mass media or by politicians or judges.
The lies that fill the airwaves used to be mostly heard during political campaigns but are now a perpetual feast of toxic garbage on the airwaves and, even more so, on cable and the internet. I think that today those lies are a far greater danger to democracy and the Constitution of the United States than any foreign or domestic enemy. As an example, it is estimated that 40,000 Americans die every year as a result of our for-profit insurance system which denies them timely care, in many cases, it denies them any care. The well financed lies of the insurance and associated industries have perpetuated a protection racket that kills far more Americans that have been killed by any foreign or domestic enemy of the government and our society. And that’s only those who die from our terrible health insurance system. Corporations kill many more of us than that.
Democracy that allows lying a free reign in its politics can't survive as a democracy. The evidence is that our system that is fueled on lies, freely told, freely broadcast, told by professional liars paid by the most filthy rich and larcenous crooks, is destroying our society and, indeed, the very basis of life. I don’t think there is any moral or political reason to allow that. Citing free speech in defense of liars isn’t just an irrational, one law fits all occasions, refusal to consult reality, it is dangerous to our democracy and our lives.
Using the language of rights and freedom to hand over our minds to lies is criminal insanity. Using the excuse that sifting the lies from the truth is hard and takes an effort is inexcusable. If it’s too hard to do that, then it’s too hard for us to make informed political decisions. It is to pretend that responsible voting and participation in democracy is impossible. It is to assert that democracy isn’t possible. There is no royal road in reality. If it’s even very very hard to do what is essential, that’s just too bad.
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Indulging in a bit of non-reality, just call it an extreme hypothetical, imagine a society where no one told lies, where no corporation interested in maximizing profit over the welfare of The People or the environment could misrepresent the reality of their intentions and proposed activities? Imagine if they had to be honest about what really happens.
Imagine if they couldn’t hire scientists, engineers, lawyers, and other, assorted professions --- and in today’s reality, quite a sordid bunch they are — to lie to us and our government.
Would we The People let them drill where they couldn’t fix an oil well blow out before it caused the death of a major ecosystem? Would we allow them to ration health care on the basis of what is most profitable to them, including the deaths of tens of thousands every year?
And imagine if politicians and lawyers and judges didn’t lie. Let’s go wild and imagine if the broadcast and cabloid media couldn’t lie? Would there be any harm to our freedom, our liberties, our lives from this terrible regime of the truth? Would getting even half way there from the cesspool of lies we are in today hurt or enhance those benefits of democracy?
* Of course, there are other lies that are not permitted, some have been noted in the discussions last week and I won’t go over those again here. Libel and slander among them. A good part of the Clinton administration was a lesson in what happens when media corporations and pseudo-religious corporations are given a free reign in slandering and libeling elected officials. It was the Supreme Court, in decisions some foolishly hail as a great bulwark of free speech that led to that crippling of democracy.
** In another recent discussion there was something of a scandalized reaction when it was proposed that scientists, engineers and others who, from positions gained through their academic credentials, lied or irresponsibly and catastrophically misjudged the situation that led to the oil gusher into the gulf, should lose their credentials. Including revoking their degrees.
Universities are supposed to be institutions that place the highest value on truth in accord with reality. “Veritas,” the often ironic slogan is. “Lux et Veritas, ”... This is supposed to be especially true in academic departments in the sciences, engineering and schools of law.
What are we supposed to think of the universities which trained corporate scientists and engineers who bend their work product in ways that are no different from lying about what is real? What are we supposed to think about those who have also proven, in the most horrible way, that their professional judgement is criminally negligent at worst, disastrously incompetent at best? Should people who have done those kinds of things retain their credentials? Shouldn’t universities which produce these people take their measure of blame in that?
What is the real value of a university education if the people they tout in the alumnae propaganda are proven liars and incompetents? And that doesn’t even begin to ask about law school graduates. It also doesn’t go into the fact that the faculties of many of our most prestigious universities are well salted with corrupt corporate hacks, crooks and liars.
Eventually, reality being real, the corruption behind the ivy and ersatz parchment becomes undeniable. I think we are rapidly reaching the crisis stage when our universities are adjuncts of a corrupt corporate oligarchy. The signs of rot are undeniably visible now.
Note: This was the last of the posts I’d planned on writing on this topic for now. It became considerably longer in response to some of the points from the discussion which I though had to be considered. My thinking on this has changed considerably due to the spectacle of the dying democracy in the United States, the corporate oligarch that is replacing it and the willful acquiescence of what functions as our intelligentsia to the means which that is happening. The free speech industry, certainly in the vanguard of that acquiescence and even enablement.
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