Obama’s First-Amendment Defense of Political Liars

By Eric Zuesse

President Obama, through his U.S. Solicitor General, arguing before the U.S. Supreme Court, has now stated that lying in political campaigns isn’t merely protected by the First Amendment’s guarantee of free speech, but that it is an especially protected form of speech, which must not be hindered by any state government, such as by the state of Ohio. Ohio has outlawed such intentional deception of voters, and has established heavy criminal penalties against it, when it can be proven. The idea behind this law is that any democracy in which lying in political campaigns isn’t penalized by severe penalties, won’t remain a democracy much longer, but will instead descend into a kleptocracy: theft of elections themselves (via lies), so that they become just nominal “elections,” which are controlled by whatever aristocrats can put up the most money, to lie the most effectively, to the biggest number of voters: lying-contests.

It’s an important Supreme Court case. As Constitutional lawyer Lyle Denniston has noted, in his “Argument preview: Attack ads and the First Amendment”: “In all of the history of the First Amendment, the Court has never ruled that false statements are totally without protection under the Constitution.” However, this Supreme Court will have an opportunity to do that here, in the case SBA List v. Dreihaus; or else, to do the exact opposite — to open wide (even wider than they now are) the floodgates to political lies.

Public opinion (e.g., this), and the President of the United States (via his Solicitor General, to be discussed here below), seem to favor opening the floodgates. If that were to happen, then the recently unleashed outpouring of sheer corporate and billionaire cash (via the Citizens United decision, and the more recent McCutcheon decision) into political contests, will become even more unrestrained by (and disconnected from) any consideration of the truthfulness (or not) of this “free speech,” so that the U.S. public will naturally be inundated by torrents, not only of aristocratic money pouring over public opinions, but of outright and provable lies financed by the richest aristocrats, polluting and poisoning those torrents, which will drench voters’ minds, and will thus poison political outcomes (which is why that money is spent — to do precisely this).

U.S. Solicitor General Donald B. Verilli Jr., in this case, SBA List v. Dreihauswrote to the U.S. Supreme Court, defending political liars’ rights:

This case does not require the Court to determine precisely when an alleged chilling of speech [by the threat of being prosecuted for lying in a political campaign] constitutes hardship [being suffered by that liar], because it presents that issue in a unique election-related context that makes the hardship to petitioners [the liars] particularly clear. Petitioners [the liars] have sufficiently alleged that a credible threat of prosecution will chill them from engaging in [deceptive] speech relating to elections for public office, the very type of speech to which the First Amendment ‘has its fullest and most urgent application.’ Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)). As petitioners explain (Br. 40), under Ohio law, candidates who are the subject of such [lying] speech can try to silence it by complaining to the [Electoral] Commission and thereby tying up the speaker [the liar] in administrative litigation during the short window of time in which the electoral speech [that person’s lie] would be most effective [at deceiving voters].4

The court of appeals largely disregarded these considerations in favor of focusing on evidence suggesting that the Commission proceedings [the investigation into the lie] did not actually deter [the liar] SBA List from disseminating its message [its lie]. Pet. App. 17a-18a. The court correctly recognized that evidence of how agency action [the investigation into that alleged lie] has affected a plaintiff’s conduct is an important factor in the hardship analysis. In this case, however, SBA List’s particular reaction to the Commission proceedings during the 2010 election cycle does not eliminate the objectively credible threat of prosecution that petitioners [SBA List] face if they engage in similar [lying] speech in future election cycles.

When Obama’s mouthpiece there, Verilli, quoted the phrase that’s quoted in “the First Amendment ‘has its fullest and most urgent application’,” in relation to this particular case and context, he was actually quoting from a case in which the court was saying in regard to “California’s prohibition on primary [party] endorsements by the official governing bodies of political parties,” that (as that ruling said), “Indeed, the First Amendment ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” That statement didn’t refer at all to lying in political campaigns. However, this is the type of cheap shot that the President’s lawyer must take, in order to argue that lying is “the very type of speech to which the First Amendment ‘has its fullest and most urgent application.’’” He must lie in order to defend political lying as being protected by the U.S. Constitution.

I have earlier argued that President Obama lied with exceptional skill in order to win the White House — and I say this as a Democrat who is opposed to conservatives (supporters of lies) of all parties, including the Democratic Party. [Note from Washington’s Blog: This seems like a huge oversimplification to us.  Some of the most consistently honest people we know are conservatives, and some of the most dishonest are Democrats. So we don’t buy into any such stereotypes.]  So: Obama is really defending here his own practices, which won him the White House. This conservative “Democrat” is so gifted a politician that he could probably have won it with no lies at all, but he took the easy path, and now he is defending it as a matter of alleged Constitutional principle.

He’s on the same side in this as the overt Republicans are. For example, the friend-of-court brief on behalf of the Koch brothers’ Cato Institute and their comedian P.J. O’Rourke, argued in this case that, “No one should be concerned that false political statements won’t be subjected to careful examination” (perhaps by historians, after the liar has been elected and long-since collected his reward, and the honest politician has sunk into obscurity). It’s a race to the bottom they want, and conservative Democrats want it just as much as Republicans do. Cato/O’Rourke then went on to say: “A prohibition on lying devalues the truth. ‘How can you develop a reputation as a straight shooter if lying is not an option?'” In other words: We must allow deception of voters, because otherwise all politics would be honest — and that would be bad (for crooks like them, because politics then wouldn’t continue to be a lying-contest: the type where any real ‘straight shooter’ can’t have even any realistic chance at all of winning). Champion liars want to continue maintaining their advantage, not to yield it; and any law that’s enforced against political liars will remove their existing huge political advantage. Conservatives would still have most aristocratic money on their side, but no longer an unrestrained freedom to spread lies financed by that cash-advantage that they naturally enjoy.

With Obama arguing on the Republican side, and the Republicans arguing on the Republican side, how will the Republican U.S. Supreme Court rule on this matter? Let’s guess.

It could be the final nail in the coffin of democracy in America: the official full implementation of aristocracy, plutocracy, oligarchy, crony capitalism, or whatever else one would call it. Maybe “fake democracy”? Oh, I forgot: we’re already there. But this would take us much farther there.

If the reader wants to know how deeply the public has already been duped, just check out, for starters (besides that piece where I earlier argued that President Obama lied with exceptional skill in order to win the White House), these:

Ukraine: Is Obama Channeling Cheney?

The Nazis Even Hitler Was Afraid Of

Ukrainian Neo-Nazis Declare that Power Comes Out of the Barrels of their Guns

Privatization Is A Ramp For Corruption, and Insouciance Is a Ramp for War

And the Ukraine matter is just the tip of the lying iceberg here, several other portions of which I’ve covered extensively at Huffington Post and elsewhere.

Lying in politics is toxic to democracy. It’s destroying not only this country, but the entire world. Obama wants to protect it, just like he protected the banksters from prosecution.

———-

Investigative historian Eric Zuesse is the author, most recently, of  They’re Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010,  and of  CHRIST’S VENTRILOQUISTS: The Event that Created Christianity.

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  • Charlie Primero

    Use the guns of government to criminalize speech it considers untruthful.

    What a brilliant idea. I wonder why nobody tried this already in some country.

    I’m sure it would turn out wonderfully.

    • cettel

      Charlie Primero sides with Obama, Republicans, and conservatives in general, on this one. But if lying to voters isn’t penalized so as to be sufficiently dangerous to the liar so as to induce him to try to find truthful assertions that support his candidacy, then lies will continue to be the method-of-choice by which the aristocracy wins and retains power — over the minds of the voters. That’s handing a democracy over to oligarchs, and Charlie Primero wants it.

      How odd it is, that America’s great Founders, who wrote the First Amendment’s Free Speech Clause in order to help voters to discover truth in politics, has now been turned around by conservatives into a weapon that enables the aristocracy to buy “elections” by eliminating campaign-finance controls and penalties against political liars. The First Amendment is now being used by conservatives as a dagger into the heart of democracy. Charlie Primero posts as a picture of himself, a picture of the young Joseph Stalin, who likewise was a rabid conservative (originally in the Christian faith, but then in the Marxist Scriptures) and so a rabid enemy of democracy. It’s true-to-form for such an individual to be committed to political lying, because no dictatorship can survive without mucho political lying.

      • mmckinl

        And you still think that the Democratic Party can be salvaged ???

        • kimyo

          it’s like arguing that elvis is still relevant. or nine inch nails, for that matter.
          or like picking between a chevy and an olds.

          it’s misdirection, talking about the wrong problem.

          it also seems to take lots and lots of words.

          here’s the problem all summed up in one simple sentence – jimmy carter: ‘we do not have a functioning democracy’.

          ie: voting will not fix this. a crackdown on political lying will not fix this.

          • cettel

            That’s an unsupported assertion. What are you proposing to be the thing that will “fix this”?

  • Tsar Caustic

    He’s back… with the argument that “No true Democrat…” would do such a thing, therefore Obama must be a deep-cover Republican party operative. At least that’s what I assume the description of Obama as being in distinction to the “overt Republicans” is meant to imply. Such an implication would certainly run afoul of the Ohio law, so it’s fortunate for Mr. Zuesse that this article isn’t being put forward during a campaign.

    Whether Obama is (D) or (R) or (most-likely) simply a power-obsessed-narcissist is irrelevant, the arguments against this law are compelling. And it is revealing that self-described “progressives” like the author clamour most vigorously for curbs on speech.”

    • cettel

      There are many “curbs on speech” that have been accepted by Supreme Court rulings as acceptable under the First Amendment.
      Furthermore, the chief purpose of the Free-Speech Clause was to enable truth to come to prevail among the public’s beliefs regarding political matters, precisely so that the existing powers-that-be in the government cannot censor out or block the distribution of facts that they don’t want to become known among the electorate. The Founders thought that the best way to insure that truth would come out would be a maximally open public debate, whose purpose would be to allow each side to present its case to the public. The underlying assumption was that no aristocracy would develop that would be able to pour unlimited funds into supporting one side of the public debate at the expense of the other side (the side that the aristocracy as a class oppose overwhelmingly). In other words: the Founders did not contemplate this problem, though they did vigorously debate, at the Constitutional Convention in 1787, the problem that might develop in which the aristocracy might literally “buy votes” from the masses to such an extent as to take over the country. Vote-buying was a major worry among them, but propaganda-buying was not — it wasn’t in their history-books, which they were well versed upon. It didn’t evolve, in the form that we know it today, until after Edward Bernays, in the 20th Century.

  • martae

    An agent of the federal government lies to me, and everything is hunky dory. I lie to a federal agent, I get put in prison. If the federal government doesn’t like what I say, they charge me with lying to them, and I either plead guilty, or spend every dime I have on lawyers. Candidates for office have an absolute right to tell any lie, to try to get elected, and that right must be defended not by them, but by the (in)justice department.
    Are you beginning to get the feeling that the deck is being stacked against anyone who is not somehow in political power? How about we all play by the same rules? Either we can all legally lie, when we are not testifying under oath, or none of us can.

  • USA_objector

    Eric, the problem with the Ohio law is that it puts too much power in the hands of partisan political hacks. Remember Obama’s truth squads in Missouri? http://newsbusters.org/blogs/tom-blumer/2008/09/29/missouri-sheriffs-prosecutors-obama-truth-squad-getting-old-media-silenc

    Unchecked, the Liar Law would chill political speech and lead to a morass of red tape and bureaucracy EVERY election. Here’s hoping the corrupt Supreme Court doesn’t go against the Constitution. That would be the worst result.

    #cokepepsicokepepsi

  • 0ivae

    The potential for abuse of this law cannot be denied – a politician with better funding can attack a struggling third party candidate simply by claiming “liar” and hence bog down their campaign with litigious action. Nevertheless there can be an upside to the law -if the claims of the underdog are true, then the establishment politician can get far more than he/she bargained for. A prime example would be that of “Mean Jean” Schmidt v. Krikorian, in her claim of slander when he suggested in a newsletter that she was taking “blood money” from the Turkish lobby in exchange for a no vote on the Armenian genocide resolution. Krikorian’s lawyers called Sibel Edmonds to testify about her direct knowledge (as an FBI wire-tap translator) of the compromise by various means of many U.S. politicians (including former Speaker of the House Dennis Hastert) by the Turkish lobby, hence ending the long-standing gag-order issued by John Ashcroft… http://lukery.blogspot.com/2009/08/sibel-edmonds-to-break-gag-order.html

  • Tim Taylor

    It wasn’t just the moneychangers. It was the state. It wasn’t the money changers that killed more than a million Jews. It was the Roman state. Money is an invention of the state. Money, the state, etc are the root of all evil.

  • Rick the liberal clubber

    Overthrow obama.