Free Speech and False Speech

Political Deception and Its Legal Limits (Or Lack Thereof)

Robert N. Spicer

• Publisher: Palgrave Macmillan
• Year: 2018
• Print ISBN:
  9783319698199
• eBook ISBN:
  9783319698205
• Topic: Social Sciences
• Subtopic: Public Law
• Index: Social Sciences

This book examines the history of the legal discourse around political falsehood and its future in the wake of the 2012 US Supreme Court decision in US v. Alvarez through communication law, political philosophy, and communication theory perspectives. As US v. Alvarez confirmed First Amendment protection for lies, Robert N. Spicer addresses how the ramifications of that decision function by looking at statutory and judicial handling of First Amendment protection for political deception. Illustrating how commercial speech is regulated but political speech is not, Spicer evaluates the role of deception in politics and its consequences for democracy in a contemporary political environment where political personalities, partisan media, and dark money donors bend the truth and abuse the virtue of free expression.

© The Author(s) 2018

Robert N. SpicerFree Speech and False Speechhttps://doi.org/10.1007/978-3-319-69820-5_1

Begin Abstract

1. Lies, Damn Lies, Alternative Facts, Fake News, Propaganda, Pinocchios, Pants on Fire, Disinformation, Misinformation, Post-Truth, Data, and Statistics

Robert N. Spicer¹

(1)

Millersville University, Millersville, PA, USA

I wouldn’t believe Donald Trump if his tongue were notarized. Alair Townsend, Former New York City Deputy Mayor

Singer (2016, p. 89)

Abstract

The first chapter of this book sets the stage for the legal analysis that makes up the bulk of the project. It will pay special attention to the political discourse about dishonesty surrounding the 2016 presidential campaign. The chapter will begin with a discussion of the way discourses about political deception and dishonesty permeated the 2016 campaign and the early stages of the Trump presidency. This will be a brief discussion looking at a few categories of discursive objects that were the highest-profile parts of the election. It will look at the concept of “fake news” and how that term evolved in its use through Trump, his opponents, and his surrogates. This will lead into a discussion about the debate within the news media about how to handle (i.e. describe) false statements President Trump made during the campaign, through the transition, and into the beginning of his presidency. The chapter concludes with an explanation of the notion of “post-truth” politics as it was defined through the lens of the Trump era.

Keywords

TrumpPost-truthFake newsPolitical communicationDeceptionCampaignsFreedom of speech

End Abstract

Introduction

In the months after the 2016 presidential campaign, and into the opening months of the Trump presidency, as this book was being written, deception was a key element, if not the key element in the broader discourse about American politics and about the Trump presidency specifically. Lies, misleading statements, baseless accusations for which there was no evidence; these terms permeated the discourse about Donald Trump. In the months of his administration’s transition, and beyond the inauguration, it is not an exaggeration to say that, especially for his opponents, deception was the central concept for characterizing President Donald Trump.

It is quite interesting how the various terminologies became inserted into discussions of everything Trump said. From late-2016 into early- and mid-2017, it was common to find a discussion about a statement from the new president that involved either accusing him of purposefully misleading the public or at the very least of making a statement of either questionable veracity or that was demonstrably false, even if he genuinely believed it to be true. Some discussions included debating whether the new president believed what he was saying himself.

The discussion about Trump’s honesty even reached the point of questioning his sanity. In the summer of 2016, the co-author/ghostwriter of his book The Art of the Deal, Tony Schwartz, actually said that if he could retitle the book he would call it The Sociopath (Mayer 2016, para. 9). Questioning Trump’s sanity continued into his presidency and was linked to his perceived proclivity for falsehoods and outright lies. In February 2017, in an appearance on CNN’s Sunday program State of the Union, Senator Al Franken (D-Minn) claimed that behind closed doors even Republicans were unsure of Trump’s sanity because the president “lies a lot,” as Franken put it (Pengelly 2017, para. 3). He added that he had “heard great concern about the president’s temperament” in part because of his lies (para. 9). Around the same time, independent Vermont senator, and former presidential candidate, Bernie Sanders said of Trump, “We have a president who is delusional in many respects, a pathological liar” (O’Keefe 2017, para. 4). Certainly, these are all statements from people who politically opposed President Trump, and all presidents have political opponents who accuse them of dishonesty at one time or another during their tenure. However, the quantity and quality of the accusations were something different from what past presidents have seen. As Senator Franken put it, Trump’s behavior was, “not the norm for a president of the United States or actually for a human being” (Pengelly 2017, para. 6).

While political deception has existed for as long as politics itself, the frantic, fraught, and fearful discourse about deception was so present early in the Trump presidency that it is an essential component of understanding it. It might even be the essential component to understanding not just his presidency in specific but American politics in 2017 more broadly. This makes it more important than ever to address political deception as a concept and to look at it through the lens of a legal analysis, which is the project of this book. If the Trump presidency put lying, and other forms of deception, front and center as a problem in our politics, we should be addressing what the law has to say about what is allowed and what is not allowed in terms of political acts of deception. If nothing else, we ought to be questioning what our political leaders are legally able to do should they deem it expedient, or even necessary, to mislead the public.

The other reason for addressing this issue, especially in the Trump era, is because a president’s words matter in a way that other people’s, and even another political leader’s, words do not. A president’s words have a different kind of weight. When he speaks, the public has to be able to believe what he is saying. Whether it is dealing with implementing changes in domestic policy, managing foreign relations, or (probably most important) dealing with national security, the public has to be able to believe what their president tells them. On the national security front, this is especially true in the post-Iraq War era with so much of the public feeling as though the Bush Administration’s claims about weapons of mass destruction, used to justify the war, were purposefully misleading (Stein and Dickinson 2006). Some, such as Kenneth Pollack (2004), argued that there was poor intelligence gathering but that it was not as bad as believed, with the real problem being the administration’s exaggeration of that intelligence (para. 3). Others, such as Bob Drogin (2007), argue that members of the administration were not the perpetrators of deception but rather victims of it themselves, having been misled by a source named Curveball.

Concerns about misinformation (or perhaps disinformation) about very serious matters of war and peace are the reasons why it is so disconcerting that the Trump Administration’s relationship with the public started with what appears to be a lie (or, if not purposeful deception, at least a false statement they insisted upon holding onto despite evidence to the contrary). Following the inauguration, someone from the U.S. National Parks Service tweeted out side-by-side images of the January 2013 inauguration of President Barack Obama and the January 2017 inauguration of President Trump, showing a significantly larger audience for the former (Shear and Haberman 2017). The day after the inauguration, National Public Radio (NPR) reported that the Trump Administration “spent its first full day in office taking shots at the media and arguing about crowd sizes at Friday’s inauguration” (Taylor 2017, para. 1).

The moment in this controversy that will likely be most remembered was when press secretary Sean Spicer (no relation to the author of this book) declared to the gathered reporters, “This was the largest audience to ever witness an inauguration—period—both in person and around the globe,” a claim that NPR politely referred to as “unverifiable” (para. 9). Other sources were less measured in their responses. The Washington Post’s Fact Checker gave Spicer Four Pinocchios for the statement (Kessler 2017) and the fact-checking organization Politifact rated the statement “Pants on Fire” (Qiu 2017). Writing for Vox, Andrew Prokop (2017) lamented that, while the point of the argument may not have been important, it raised questions about whether the new administration could “be trusted to provide basic factual information” (para. 5).

So the Trump Administration started its relationship with the news media (and the public) embroiled in an unnecessary brouhaha over a demonstrably false statement about something that wasn’t even that important. By May of his first year in office, a big part of the discourse surrounding President Trump’s honesty or, for some, lack thereof, turned toward questioning whether he, and his administration, had already lost their credibility. Critiques of his credibility came from across the political spectrum, from various media outlets of differing ideological background.

A LexisNexis search for “Trump + credibility” yields hundreds of results, the earliest of which is a New Yor...

Table of contents

• Cover
• Front Matter
• 1. Lies, Damn Lies, Alternative Facts, Fake News, Propaganda, Pinocchios, Pants on Fire, Disinformation, Misinformation, Post-Truth, Data, and Statistics
• 2. Conduct, Affiliation, and Messages: A Typology of Statutes Addressing Political Deception
• 3. The Judicial Discourse in the Handling of Political Misinformation (and Disinformation)
• 4. Three Recent Cases: Alvarez, 281 CARE, and SBAL
• 5. Conclusion: Two Paths in the Legal Woods
• Back Matter