Understanding the Constitutional Barriers to Criminalizing False Political Speech
Frankly, there's a lot of gray area when it comes to the concept of 'Freedom of Speech,' and it's clear that the Supreme Court will eventually have to redefine its stance on this issue. The fundamental principle of 'free speech' has always had some limitations, especially when it comes to fraud, defamation, perjury, hate speech, and 'fighting words.' Indeed, even lying, which is protected under free speech, can be expensive and lead to legal consequences, provided that it doesn't cross the line of fraud.
Jack Smith and the Charges Against Trump
Jack Smith, the special counsel who wrote the indictment for former President Donald Trump, anticipated a defense based on free speech. He stated, 'It's perfectly okay to express the opinion that the election was rigged or stolen. However, it is illegal to incite an insurrection or to threaten one’s enemies with violence.' While many argue that Trump did not engage in these activities, it remains a key point of discussion during the trial.
The 1st Amendment and Constitutional Protections
The First Amendment explicitly states: 'Congress shall make no law… abridging the freedom of speech.' This means that citizens have the right to express their opinions, even if those opinions are false. While some might argue for a ban on lying, the complexity of deciding whether a statement is true or false makes such a law almost impossible to implement effectively. News outlets like Fox News and MSNBC frequently contradict each other, and even eyewitness accounts can vary widely, often leading to discrepancies that neither party can entirely explain.
Why Criminalizing False Political Speech is Infeasible
The barriers to criminalizing false political speech are rooted in the complex nature of truth and the human tendency to misremember details. As Professor Jonathan Turley noted, even witnesses to a crime, 'in the room' at the time, can differ significantly in their recollections. This inconsistency extends to the broader public, where news outlets and individuals perpetuate their own versions of events. Determining what is a lie in the context of political discourse is inherently subjective and prone to bias.
The Nature of Lying and Lawlessness
It's important to recognize that the ability to lie does not imply a necessity to criminalize all false speech. Professor Turley argues that while bad people lie, it's not productive to legislate against all lies, as doing so would likely result in selective enforcement. Furthermore, someone who is willing to break more serious laws, such as taking bribes or influencing the Justice Department to prosecute political enemies, is unlikely to be deterred by minor legal restrictions. It reflects a deeper issue of lawlessness and unethical conduct.
Conclusion
The debates surrounding the criminalization of false political speech highlight the ongoing struggle to balance free speech rights with the need for accountability and truth. As the legal system continues to grapple with these issues, citizens and policymakers must acknowledge the complexity of the situation and aim for judicious application of free speech protections.