Swans Commentary » swans.com October 22, 2007  



Lying Is Free Speech?


by Gerard Donnelly Smith





To lie or not to lie: that is the question
Whether it is nobler to tell the truth
Or libel and slander to gain and retain
Political appointments.


(Swans - October 22, 2007)   "To lie" was the majority decision of the Supreme Court of the State of Washington on October 4, 2007. In a 5-4 decision, the apologists for liars and cheats made it clear that candidates for political office can spread fraudulent facts about their opponents.

The court struck down a state law that bans opponents from making false statements about their opponents. The justices claimed that "The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment." To their credit the justices did make clear that "the court has not held that false statements about public figures made with actual malice, but which are not defamatory, are devoid of all constitutional protection."

According to the logic of the majority, a candidate may make false statements about an opponent if "malice" is not the intent. Malice, in the legal sense, means "the intentional doing of a wrongful act without just cause or excuse, with intent to inflict injury or under circumstances that the law will imply an evil intent" (Black's Law Dictionary). In other words, a candidate may use falsehoods without impunity, as long as he didn't mean to inflict injury. The logic of the court is flawed in this regard.

The ad campaign that spreads falsehoods has as its explicit intent an injury against the opposition candidate; an injury to the personal integrity, credibility, or competence of the opposition is the intent. Moreover, the false ad campaign is "preconceived malice," in that the lies were not spontaneous or caused by immediate emotional response, but premeditated with the express purpose of injury to the opponent's character. In other words, the practice of slander and libel in political campaigning is by its very nature malicious, thus it is not protected speech.

How did the Washington Supreme Court miss this very obvious fact? Perhaps the lies of the current administration have set the standard for political reality. Indeed, the lies to the American public that lead up to the war in Iraq were also premeditated, and also had the express intent to cause injury to the people of Iraq. Is this the America gestalt? Is this the spirit our age, to deem lying acceptable under the Constitution?

The majority justices argued that limiting what can and cannot be said during a political campaign would be dangerous, as if ensuring that the "truth" be told and lies be banned, would cause other types of "speech" to also be suspect. Such a slippery slope would surely make any parent laugh. Imagine a child saying, "But mom, if I can't lie, then soon I won't be able to say anything at all," or "it is my legal right to tell lies about my sister." What message has this court sent?

Had I lied to my parents I would have received a sound spanking. Perhaps the Washington Supreme Court deserves the same.


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About the Author

Gerard Donnelly Smith on Swans (with bio).



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Swans -- ISSN: 1554-4915
URL for this work: http://www.swans.com/library/art13/gsmith94.html
Published October 22, 2007