MIL-OSI Global: George Santos: A democracy cannot simply punish politicians for lying (2023)

Quelle: The Conversation – USA- By Miguel Schor, Law Professor and Associate Director of the Constitutional Law Center at Drake University, Drake University

George Santos isn't the first politician to have lied, howeverthe fables he told to get electedto Congress can be in a class by themselves. Historian Sean Wilentz noted that while there are embellishments, Santos' lies are different - "There is no other example like it "in American history," Wilentz told Vox in a story in late January 2023.

Columnistwrote Peggy Noonanthat Santos "was a stone cold liar who effectively committed voter fraud".

And now Santos has taken the dramatic step of temporarily removing himself from the committees to which he was assigned: the House Small Business Committee and the Science, Space and Technology Committee. theThe Washington Post reportsSantos told his GOP peers that he would be a "distraction" until his lies were cleared up in multiple investigations.

While Santos' lies drew some attention from local media, they were not widely known until thenThe New York Times published an exposéaccording to his choice.

Santos' lies may have landed him in hot water with the voters who got him into the House of Representatives and some of his peers, including the New YorkerGOP, wants him to resign.CBS News reportsthat federal investigators investigate Santos' finances and financial disclosures.

But most of Santos' misrepresentations can be protected by theFirst amendment. The US Supreme Court has concluded that lies enjoy the protection of the First Amendment - not because of their value, but because the government cannot be trusted with the power to regulate lies.

In other words, lies are protected by the First Amendment to protect democracy.

So how can ignorant voters be protected from sending a scam to Congress?

Any attempt to invent a law that targets the lies of politics will encounter practical enforcement problems. And attempts to regulate such lies could clash with a 2012 Supreme Court caseUnited States vs. Alvarez.

Lies and the First Amendment

Xavier Alvarez was a fabulist and a member of a public water board thatlied about receiving the Congressional Medal of Honorin a public session. He was charged with breaking the law in 2007Stolen Valor Act, making it a federal crime to lie about receiving a military medal.

The Supreme Court rejected the government's argument that lying should not be protected under the First Amendment. The court concluded that lies are protected by the First Amendment unless there is a legally recognized harm, such as slander or fraud, associated with the lie. The Stolen Valor Act was scrapped as an unconstitutional restriction on speech. The court pointed out that some false testimonies "are unavoidable if opinions are to be expressed openly and vigorously in public and private conversations."

Crucially, the court feared that the power to criminalize lying could harm American democracy. The court argued that the government could create an "endless list of subjects on which false testimony is punishable" provided the First Amendment does not limit the government's power to criminalize lying.

Richter Anthony Kennedy,who wrote the majority opinionin Alvarez, illustrates this danger through citationGeorge Orwell's dystopian novel 1984' in which a totalitarian government relied on a ministry of truth to criminalize dissent. Our constitutional tradition, he wrote, "stands against the notion that we need a ministry of truth."

Lies, politics and social media

George Santos, unlike Xavier Alvarez,lied during the election campaign.

In Alvarez, the Supreme Court expressed concern over laws criminalizing lying in politics. It warned that the stolen bravery law applied to "political contexts" where such lies were more likely to cause harm, but the risk that prosecutors would bring charges on ideological grounds was also high.

The court held that the marketplace of ideas was a more effective and less dangerous mechanism for monitoring lies, particularly in politics. Politicians and journalists have the incentives and the resources to examine the files of candidates like Santos to uncover and expose falsehoods.

However, the story of George Santos is a cautionary tale for those with an idealized view of how the marketplace of ideas in contemporary American politics works.

Measured against the course of human history, democracy has not had a long run. From the founding of the American Republic in the late 18th centuryuntil the dawn of modern times, there was a rough division of labor. Citizens chose leaders, and experts played a crucial role as gatekeepers, mediating the flow of information.

New information technologies have largelysuppressed the expert role. Everyone now claims to be an expert who can decide for themselves whether COVID-19 vaccines are effective or who really won the 2020 presidential election. These technologieshave also destroyed the economic modelwhich once supported local newspapers.

Hence,although a local newspaper reported on the misrepresentations made by Santos, his election is evidence that the loss of news reporting jobs has hurt American democracy.

Lies that harm democracy

The election of George Santos illustrates the challenges facing American democracy. The First Amendment was written at a time when government censorship posed the greatest threat to self-government. Today politicians and ordinary citizens can make use of itnew information technologies to spread misinformation and deepen polarization. Weakened news media will not monitor these claims, or partisan news media will amplify them.

As aScholar of constitutional law, comparative constitutionalism, democracy and authoritarianism, I believe Judge Kennedy's Alvarez opinion was based on a flawed understanding of the dangers to democracy. He claimed that government regulation of speech posed a greater threat to democracy than lying. Laws targeting lies would have to withstand the most rigorous scrutiny – which is almost always fatal to government regulation of speech.

Judge Stephen Breyer's affirmative opinionargued that another test should be used. Courts, Breyer said, should assess any language-related harm that might result from the law, as well as the importance of the government's goal and whether the law furthers that goal. This is known as an intermediate test or proportionality analysis. It is a form of analysis that is widely used byConstitutional courts in other democracies.

Midterm review or proportionality analysis does not treat all state speech regulations as allegedly unconstitutional. It forces the courts to weigh the value of the speech against the justification of the law in question. That's the right test, concluded Judge Breyer, when considering laws criminalizing "false statements of easily verifiable facts."

The two approaches will yield different results when governments try to regulate lying. Even planned, tightly written laws aim at factual misrepresentations by politicianstheir recordsorabout who won an electionmight not survive the high level of protection afforded to lies in the United States.

An interim scrutiny or proportionality analysis, on the other hand, will likely allow some government regulations on lying - including that of the next George Santos - to survive legal challenge.

Democracies have a better long-term survival record than dictatorships because they can and doevolve to deal with new threats. The success of America's experiment in self-government, I believe, depends on whether the country's democracy can evolve to deal with new information technologies that help disseminate itLies that undermine democracy.

Miguel Schor does not work for, consult with, own an interest in, or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations other than her academic appointment.

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