North Carolina Law Criminalizes Lying in Politics

​Imagine hearing the news that former presidents George W. Bush and Barack Obama, after serving several years in a minimum-security facility, will soon be released on parole. Both men were convicted of lying: President Bush for asserting that there were weapons of mass destruction in Iraq, President Obama for promising that he would enforce a “red line” with severe consequences if the dictator of Syria used chemical weapons.
 
Defenders of each continue to stoutly maintain that neither president lied. Rather, President Bush was the victim of bad intelligence as were allies from London to Tel Aviv. President Obama violated his promise to take military action in response to a Syrian chemical attack by picking a flexible diplomatic approach that ultimately led to the removal of 1,300 tons of Syria’s chemical weapons. Nevertheless, the law’s the law. Both men told lies and deserved to go to prison…
 
The saga of Rep. George Santos (R-NY) is inciting some commentators and a few officeholders to want to criminalize “lying” by politicians. Making such distinctions is not as simple as it seems.
 
To be sure, Rep. George Santos’ claims to have graduated from schools he never attended are demonstrable lies. But what about common assertions in American political campaigns? Do tax cuts exacerbate the deficit and thereby hurt the economy, or do they stimulate economic growth that eventually curb the deficit? Do tax increases take money out of the productive economy, or do they provide funds for investments in health and education that ultimately spur economic growth?
 
There are plenty of Republican and Democratic politicians who can argue these cases. Are they liars or politicians with conviction?
 
Then there are lies that in the judgment of history protected the nation. How do we judge Franklin Delano Roosevelt’s white lies about Lend Lease assistance that kept the United Kingdom from succumbing to Nazi Germany? Or John F. Kennedy’s initial pretense of normalcy at the beginning of the Cuban Missile Crisis?
 
This issue is about to be tested in court. A 1931 statute in North Carolina prohibits the spread of “derogatory” information about candidates for state office that the speaker knows to be false or which is spoken with “reckless disregard” for its accuracy. It is on this basis that a state prosecutor is investigating North Carolina Attorney General Josh Stein for breaking the law by accusing his Republican opponent of being responsible for a backlog of rape kit testing. The Republican candidate had argued that this resulted from dysfunction with the police, not his office.
 
Was Stein’s criticism a lie? It is really a matter of perspective.
 
Imagine putting such a law into the hands of partisans as President Joe Biden and former president Donald Trump eye a bid for the White House. Campaigns would become blizzards of subpoenas and grand juries. Partisans would have the tool to criminalize politics, as it is in many countries from Venezuela to Russia. Besides, if we criminalized lying in politics, how many new prisons would we have to build?
 
The attempted prosecution of a state official is unlikely to stand. A court is allowing Attorney General Stein to contest the law on First Amendment grounds. Protect The 1st is optimistic that Stein will prevail. In 2012, the U.S. Supreme Court in U.S. v. Alvarez voided the conviction of a minor politician in California who violated the Stolen Valor Act by falsely claiming that he had been a U.S. Marine and had won the Congressional Medal of Honor.
 
The Court recognized that such lies are eventually revealed. When exposed, such lies bring punishment in the form of widespread public contempt and ridicule, ending political careers – as it surely will for Rep. Santos. The beauty of the First Amendment is that claims and resumes are eventually subjected to the crucible of public inspection.
 
We should hold to the conviction that, as Shakespeare put it, at length the truth will out.