Sunday, August 29, 2021

Catherine J. Ross's "A Right to Lie?"

Catherine J. Ross is Lyle T. Alverson Professor of Law at the George Washington University Law School, where she specializes in constitutional law (with particular emphasis on the First Amendment) and family law, including legal and policy issues concerning children.

A Right to Lie? Presidents, Other Liars, and the First Amendment is Ross’s second book on the First Amendment. Her prizewinning Lessons in Censorship: How Schools and Courts Subvert Students' First Amendment Rights (2015) was named the Best Book on the First Amendment of 2015 and received the Critics’ Choice Award from the American Educational Studies Association.

Ross applied the “Page 99 Test” to A Right to Lie? and reported the following:
A reader browsing page 99 of A Right to Lie? would be introduced to two of the book’s themes: the difficulty of ascertaining what falsehoods count as lies under the law, and the harms lies cause. But other, more central, themes that run through the book would remain invisible.

The final paragraph on page 99 is like much of the book. It examines whether President Trump’s pandemic falsehoods met the legal definition of lies:
If Trump genuinely did not understand or believe in science, it could be argued that the stream of deception and obfuscation that flowed from repressing data would not qualify as “lies” because he would have lacked the requisite intent to deceive. But Trump’s private conversations prove he knew he was lying in public—he left the sort of evidence that lawyers call an “admission against interest” at trial.
Page 99 appears in the chapter “Viral Lies: Life and Death in the COVID-19 Era.” The page follows a discussion of Trump’s false assurances to the public that COVID-19 was not dangerous and would disappear, even as he promoted dangerous, ineffective remedies. The section that begins on this page focuses on how Trump suppressed the collection and sharing of scientifically reliable data.

Chapter 5 is atypical in several ways. Instead of using dramatic legal stories and controversies to analyze the relationship between free expression and lies, this chapter primarily relies on emerging medical and social science data. It has one simple purpose—to demonstrate the harm Trump’s lies about COVID-19 caused, measured in unnecessary death, long-term illness, economic devastation, and social divisions that made a cohesive societal response to the pandemic all but impossible.

* * * 

Measurable harms resulting from falsehoods have crucial legal significance.

In United States v. Alvarez, decided in 2012, the Supreme Court indicated that the Speech Clause protects even the most blatant lies unless the government can show something more: harm to others or benefit to the speaker. The court did not flesh out what it meant. Throughout the book, I test the parameters of harms caused by public falsehoods that might satisfy the court’s requirement in order to see what government regulations on lies might survive a First Amendment challenge.

I zero in on two sets of harms attributable to Trump’s persistent mendacity, either of which surely are severe enough to merit discipline: lies about COVID-19 and what has come to be known as the “Big Lie,” falsehoods that began months before the 2020 election and continue to this day aimed at undermining the legitimacy of the presidential election and of democracy itself. This story -- which opens and closes the book -- continues through the January 6 insurrection, Trump’s second impeachment and trial, and attacks on the 2020 election that continued through the last changes I could make (on May 17, 2021) and as I write this in August.

The first page of A Right to Lie? asks: “Is there any way to stop a president who lies constantly about matters large and small, who regularly displays his disconnection from facts or verifiable reality, and whose lies endanger the nation and threaten the very foundations of democracy?”

I consider that question through the lens of the First Amendment by way of false claimants to military honors, purveyors of birtherism, political candidates who falsely malign their opponents and pad their own resumes, and the uses and misuses of defamation claims involving Roger Corsi, Joe Scarborough, Dominion Voting Machines and more.

In the last two chapters of the book, I propose a constitutionally viable solution to the problem of mendacious presidents and other high officials who, I argue, have less First Amendment protection in the course of their duties than other people. While the current political environment makes speedy adoption of my proposal unlikely, I argue that a failure of political will to demand honesty of the president -- not freedom of speech -- leaves democracy vulnerable. Events since my book went to the printer have only added to the urgency of my argument.
Visit Catherine J. Ross's website.

--Marshal Zeringue