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16 First Amend. L. Rev. 367 (2017-2018)
Ministry of Truth: Why Law Can't Stop Prevarications, Bullshit, and Straight-out Lies in Political Campaigns

handle is hein.journals/falr16 and id is 384 raw text is: 





    MINISTRY OF TRUTH: WHY LAW CAN'T STOP
 PREVARICATIONS, BULLSHIT, AND STRAIGHT-OUT
            LIES  IN POLITICAL CAMPAIGNS

                      Catherine  J. Ross*

       The  distinction between truth and falsehood in politics is
much  in the news  these days. Candidates  and office holders-
from  water  district board members   like Xavier  Alvarez  (of
United States v. Alvarez) to President Donald Trump-are fact-
checked, awarded  Pinocchios, and  sometimes  indicted, for half-
truths, untruths, and fantastical fabrications. Many  observers
fear there is an increasing disconnect between  verifiable facts
and  political discourse, a lack of embarrassment   about even
complete  fabrication, and a divide between voters who  appear
to be operating based on completely different sets of facts.
       Lies in politics and political campaigns are nothing new.
Neither  are efforts to rein them  in. Legislators and citizens
insist something must  be done  to curtail the most egregious
abuses. However,   any  government-directed   effort to restrain
deception in campaign  speech by  candidates or their supporters
faces constitutional obstacles that appear to be insurmountable.
      This Article analyzes  lies during electoral campaigns,2
legislative fixes that have been enacted, and the constitutional
obstacles to such regulation. Part I provides a brief historical
introduction to the problem. Part II proposes a taxonomy of the
kinds  of lies that arise during political campaigns.  Part III
reviews  federal  and  state statutes that  regulate campaign
falsehoods. In  Part IV, I demonstrate   the First Amendment
infirmities of campaign  falsehood  statutes. Part V presents a
case study that reveals the difficulty of reaching agreement on
what  constitutes a verifiable lie. In concluding, Part VI briefly
considers whether   recent developments  in  technology, social
media,  and culture require modifications of First Amendment
doctrine in order to ensure informed voting.

* Fred C. Stevenson Research Professor of Law, George Washington University Law
School. The author thanks the George Washington University Law School and Dean
Blake Morant for institutional support, reference librarian Mary Kate Hunter for her
valued help, and Abigail Yull (J.D. expected 2017) for exceptional research
assistance.
1 567 U.S. 709, 713-14 (2012).
2 The lies I am concerned with here include deceptive speech about candidates, their
records and substantive issues on the ballot or pertinent to a candidacy. I have
excluded lies designed to discourage or interfere with voting, such as lies about when
and where to vote, which raise distinct issues. See, e.g., Richard L. Hasen, A
Constitutional Right to Lie in Campaigns and Elections?, 74 MONT. L. REv. 53, 72-73
(2013).

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