The right to lie in Ohio

Mark Miller of Cincinnati, classing it up on a hated streetcar

You narrowly missed having the headline A streetcar named The Liar inflicted upon you this morning, but at long last, it turns out I have some decency.  The man using the Ohio heybuddy to straighten his glasses above is Mark Miller, and he hates a trolley. Last year, when the City of Cincinnati wanted to build and operate several of same, Miller launched a campaign supporting a ballot initiative to stop the project. The New York Times offers an example of one of his rallying tweets:

 15% of Cincinnati’s Fire Dept browned out today to help pay for a streetcar boondoggle. If you think it’s a waste of money, VOTE YES on 48.

How we all hate a boondoggle! Surprisingly, though, Miller found himself in the midst of a donnybrook. In turns out that several of his statements, including the one above, were not what logicians call “true.” It also turns out that Ohio law forbids making false statements in support of a political campaign, and Miller became the object of a complaint with the state election commission. That complaint was dismissed—and Cincinnati is building that damn streetcar—but Miller remains scarred. “I’ve got to second-guess myself every time I sit down in front of a computer,” he told the Times. “Maybe I should moderate my stance, so I don’t get involved in an expensive action.”

By “moderate my stance,” Miller means “not lie to people.” The horror of having to second-guess himself every time he makes a public statement—to pause, unnaturally, and wonder whether what he is saying is true—is too awful for must of us to comprehend, like when you see a dog with two legs. It is a grotesque state of affairs, but it is the nightmare Miller must live now. It also distracts us from a more important question.

Ohio is one of at least 17 states that forbid false statements in political campaigns. Such laws have become the subject of multiple challenges, and their controversy in the lower courts suggests that, eventually, one of them will make it to the Supremes. On first glance, preventing liars from tricking people every November seems to serve a clear public interest. It also violates the First Amendment.

There’s nothing in “Congress shall make no law…abridging the freedom of speech, or of the press” that says speech/press has to be true. It would appear that Americans have the right to lie. We have plenty of laws covering fraud, of course, but fraud involves material gain. Slander, too, harms a victim, and perjury interferes with the operation of the judicial branch. Just straight-up lying is wrong, but should it be illegal?

Hint: no, at least according to this editorial in the ubiquitous New York Times. It treats the case of Xavier Alvarez, who falsely claimed that he was a former Marine who had been awarded the Medal of Honor and thus became the least sympathetic defendant in history. Alvarez has been charged under the Stolen Valor Act, which makes it a federal crime to lie about military honors. You can probably launch a tenuous argument that Alvarez saying he won the Medal of Honor somehow harms the men who actually did, but you’d be reaching. In outlawing obviously bad behavior that does not directly hurt anyone, the Stolen Valor Act neatly illustrates the difference between what is a crime and what is simply wrong.

No amount of lawmaking can impart integrity to a shitty people. The law is inferior to individual conscience in both vigilance and enforcement. Must we assign district attorneys to fact-check Mark Miller’s Twitter feed? The answer no, he should do that himself is appealing, but it has also been demonstrated false. Mark Miller hates light rail so much that he is willing to implant false information in the minds of his neighbors to keep trolleys off the streets. A fully developed adult might recognize that course as unwise, but here again we enter the realm of fantasy. Actual Mark Miller—along with millions like him—is too stupid to realize that lying is wrong.

We would be stupid to think we can supervise him. The antidote to lies is not silence; the antidote to lies is truth. If someone says that Andrew Jackson created the National Bank, you don’t lunge across the table and clamp your hand over his mouth. You say actually and work from there. Yes, it is possible that after you do that, everyone else in the room will agree that the first guy sounds right. But no amount of lunging and mouth-clamping is going to make something good out of that room, anyway.

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  1. “Congress shall make no law […] abridging the freedom of speech” only forbids states from same because of a SCOTUS case nearly a century old.

    I wonder how the current court would come down on this question. It could only happen when a national candidate, i.e. a Presidential candidate, lies and is charged on the state level. I can’t remember that happening, and doubt that it would—local DA’s, politicians themselves, aren’t that ballsy—but depending on the party, and the political stakes, I could see the Roberts court taking the issue up. This court seems to think its mission is to redefine the moot keystones of American democracy.

  2. According to Politifact, lying, in fact, happens all the time regarding the president and presidential candidates.

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