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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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