Stone Examines Lying in Elections

What's a democracy to do?
Geoffrey R. Stone
Chicago Tribune
September 18, 2008

How does a democracy deal with lies? In the last several national elections, political operatives, exemplified by the Swift Boaters in 2004, have employed a deeply cynical and highly effective strategy to distort and manipulate public discourse. This strategy poses a serious threat to the very foundation of democratic self-governance.

The core of the strategy is simple: Consultants, political spokespersons and even the candidates systematically repeat a false statement about their opponent's positions, statements or actions. The very assertion of the falsehood puts the target on the defensive. If he ignores the false accusation, it gains traction. If he disputes the lie, he dignifies it, gives it greater publicity and sounds suspicious. If he calls the lie a lie, he comes across as accusatory and mean-spirited.

An essential element of this strategy is that the perpetrators of the lie will insist that the lie is true. Confronted with the facts, the perpetrators will reiterate the falsehood. The key to this strategy is the willingness to lie, and to lie repeatedly. We saw this strategy used masterfully four years ago against Sen. John Kerry, who was eviscerated by a carefully orchestrated series of falsehoods. The same political operatives appear to be resorting to this strategy again in 2008.

How can a self-governing society defend itself against such a strategy of deliberate deceit and distortion? One approach, of course, is recourse to the courts. That is, we could rely on the law to forbid and punish such lies. In theory, government authorities could criminally prosecute the perpetrators of political lies for intentionally undermining the democratic process. But this "solution" is a non-starter in a democratic society. We should not empower government officials to choose which allegedly false statements to prosecute. This power would be readily vulnerable to partisan political abuse. Rather, in a self-governing society, we rely upon informed public debate to sort out the truthful statements from the falsehoods. As Justice Oliver Wendell Holmes wrote, a free society assumes that "the best test of truth is the power of the thought to get itself accepted in the competition" of the marketplace of ideas.

The problem, though, is that public debate may be well-suited to inviting candidates to explain their positions and enabling citizens to decide which candidate's values, policies and qualifications they prefer, but it is not well-suited to enabling citizens to determine who is telling the truth and who is lying when one side is determined to lie. Public debate is not like a trial. It does not have rules of evidence, opportunities to cross-examine witnesses or methods to scrutinize documents. In the context of Holmes' marketplace of ideas, citizens often do not have the resources to make reasonable judgments about the truth and falsity of competing factual claims. If one side says X and the other says not-X, how is the citizen to know who is lying?

This is where the free press enters the picture. One function of a free press in a self-governing society is to serve the public's interest in learning the truth. Unlike individual citizens, the media have the resources to check facts and separate truth from falsity in a professional and objective manner. The media can be a detached referee when one side accuses the other of lying, and the capacity of the press to help resolve such factual disputes can serve as a powerful restraint on political lies.

This is precisely why those who embrace a strategy of political lying make a concerted effort to denigrate the press. This is why at the Republican National Convention, speaker after speaker vehemently attacked what former Sen. Fred Thompson described as "the media big shots." If the strategy is to lie, then it is necessary to destroy the standing of the one institution with the power to exact a penalty for lying.

Moreover, two recent developments have opened the door to this strategy. First, in the 1980s, Republicans repealed the Fairness Doctrine, which for a half-century required broadcasters to be fair and balanced in their political coverage. By so doing, they ushered in the Rush Limbaughization of the media, undermining the political neutrality of the broadcast press. Second, the corporatization of the news media has left much of the mainstream press beholden to corporate interests and much more reluctant to speak truth to power.

This strategy of deliberate, concerted and systematic lying for partisan political advantage exploits these changes in the media and poses a serious challenge to the future of American democracy.

Geoffrey R. Stone is a professor of law at the University of Chicago.

Copyright 2008 Chicago Tribune

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Geoffrey R. Stone