Sunday, September 21, 2008
Can a constitutional democracy protect the public from the lies and distortions that abound in a political campaign? The short answer is probably no. The First Amendment, caselaw, and deeply embedded constitutional values preclude the government from enacting legislation making political lying actionable. Does that end the matter? Not necessarily. Two approaches to political lying may be possible. The first approach places the burden on the mainstream media to devote substantial resources for fact checking the candidates more outlandish accusations. For example, the persisting insinuation that Senator Obama was or is a Muslim, (as if that should be a disqualifying factor), despite his denials, should be corrected every time it appears in the media. Some cable and Internet outlets are currently trying to perform this function. Is this the best we can do? Maybe. But why not combine some of the more prominent media services to form a private agency devoted to ferreting out lies during a political campaign? Indeed, why not create a governmental agency ("Agency") to serve this purpose or supply funds to a private media conglomerate that seeks to do the job. Such an agency would be limited, of course, to pointing out deception without any capacity to enforce their judgments. Would such an agency be compatible with the Constitution? Arguably, it would not if it was limited to a tutelary function only. Political candidates could then respond to their opponents' lies by saying "Don't believe me, just read what the Agency says."
Even without an enforcement mechanism, the Agency would still be a conspicuous intrusion into public discourse, and therefore would probably be unconstitutional. But we're currently experience a crisis of trust regarding what we read and hear. For instance, when the McCain camp insists, in spite Obama's denials, that Obama will raise middle class taxes, someone is lying. But who? Since only an extremely small number of Americans have the time, inclination, or competence to determine which candidate is lying, the Agency could give them invaluable information so that they could decide for themselves.
One thing is perfectly clear. Given the ubiquity of cable-news and its penchant for repeating the lies made in a campaign, lying will continue unabated and further pollute political discourse. Since America democracy must be nourished by truth, dealing with this problem is an imperative. Of course, there must be checks on the Agency to preclude it from becoming Big Brother or the purveyor of political correctness. But without some mechanism to ferret out the truth in political campaigns, American democracy will continue to operate in the dark.