“He has a really interesting and uncanny ability to [publicly] deny things that are plainly true and that people can see with their own eyes and hear with their own ears.”
—Abby Phillip, White House Correspondent CNN, former White House reporter, The Washington Post, on covering Donald Trump.
As frustrating as it is to have the President and others in position of power lie to the public, the question can be fairly asked: What does the Supreme Court have to say about this mendacity?
The answer may disappoint you. Recent cases show that the Supreme Court has given Americans wide latitude to lie in everyday life. Take the case of Xavier Alvarez, a board member of the Three Valleys Water District in Claremont, California. At his first public meeting, Alvarez introduced himself by saying “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”
None of what Alvarez said was true. Not only had he not won the Congressional Medal of Honor, he had never even served in the U.S. military. Alvarez stepped on something of a land mine by claiming he won the Congressional of Medal of Honor. President George W. Bush signed into law the Stolen Valor Act of 2005, which made it a misdemeanor to falsely represent that one had received any U.S. military decoration or medal. Although the Act set the usual penalty at up to six months in prison, special opprobrium was reserved for the Medal of Honor: the prison term could be as much as a year.
Alvarez was the first person prosecuted under the Act. In a 6–3 decision, the Supreme Court overturned the Act as a violation of the First Amendment right to free speech. In his plurality opinion, Justice Anthony Kennedy noted that Alvarez was a serial liar, falsely claiming he played hockey for the Detroit Red Wings and married a Mexican starlet.
But only when he invoked the Medal of Honor did Alvarez violate the law. Kennedy noted “[F]alse statements are inevitable if there is to be an open and vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.” And he was uncomfortable with the government decreeing that false statements about certain subjects were punishable. “That governmental power has no limiting principle,” Justice Kennedy noted. Then, in a reference to George Orwell’s 1984, he added, “[o]ur constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth.”
The Court has also been tolerant of shading the truth in political campaigns. In 2010, former Democratic U.S. Rep. Steven Driehaus was running for re-election. Driehaus, then a freshman who represented a heavily pro-life district in Cincinnati, had voted for the Affordable Care Act (ACA). That vote made Driehaus a target of Susan B. Anthony List, a staunch anti-abortion group. They charged Driehaus had voted for “taxpayer-funded abortion.”
Driehaus filed a complaint against the Susan B. Anthony List with the Ohio Elections Commission saying the group had violated a state law to knowingly make false statements about a candidate’s voting record. Indeed, Susan B. Anthony’s contention was patently false since the ACA specifically bans federal funds for abortion.
Ohio’s false statement law made it a crime with punishment of up to six months in jail and a fine of up to $5,000 to put out campaign literature or advertisements that say anything known to be false about a candidate’s voting record. The law also assigns a state agency, the Ohio Elections Commission, to police falsity in campaigning, with the authority to reprimand for violations.
The Susan B. Anthony List challenged the Ohio law, arguing in federal court that it violated the First Amendment. In a unanimous 2014 decision, the Supreme Court allowed the case to go forward, and later a district court declared the law unconstitutional. In an opinion in which his words are bolded and underlined, U.S. District Judge Timothy Black thundered, “[W]e do not want the Government (i.e., the Ohio Elections Commission) deciding what is political truth—for fear that the Government might persecute those who criticize it.”
It’s impossible to know whether the Supreme Court’s tolerance for lying has contributed to the erosion of Americans’ trust of government, but the numbers are sobering. According to Gallup, only 28 percent of Americans say they are satisfied with the way the nation is being governed, down ten points from Gallup’s 46-year historical average. Congressional approval, always low, is at a near-record low of 13 percent. And Donald Trump’s approval rating, 39 percent, according to a CBS News poll one week ago, is by far the lowest of any president one year after election dating back 28 years.
What is clear is while lots of politicians bend the facts, Trump’s march to the presidency took fact-free campaigning to new heights. As The Economist noted last September, “Mr. Trump is the leading exponent of ‘post-truth’ politics — a reliance on assertions that ‘feel true’ but have no basis in fact.” In retrospect, it seems that Trump’s casual relationship with the truth was at least done with the passive consent of his now-indicted former campaign manager, Paul Manafort.
Indeed, Manafort’s own daughter has attested to her father’s ability to treat fiction as reality. The Huffington Post reprinted leaked text messages from Andrea Manafort Sand, now an associate general counsel in an investment firm, while her father was Trump’s campaign manager. She texted a friend:
“He [Paul Manafort] is very manipulative. I did inherit that ability. But I don’t exploit it like he does. I know all his tactics. They aren’t that brilliant but they do work. Like he just tells you the sky is green over and over. And eventually you are like [is it?] [sic] I don’t possess the ability to just lie like he does.”
The utility of Manafort’s lying may have finally come to an end late last month when he was indicted on money laundering and conspiracy charges. Now that he is in the Justice Department’s cross-hairs, he is entitled to his own opinions, but he is not entitled to his own facts.
But lies of the “sky is green “ variety continue to surface. For instance, Chief of Staff John Kelly clearly got his facts wrong late last month when he charged Rep. Frederica Wilson (D-Fl) was taking credit for a new Florida FBI building. There was nothing to support this claim, but the former four-star general refused to apologize.
Sarah Huckabee Sanders jousts with the press every day in her role as a White House Press Secretary. Although she has held the job since July, Politifact has evaluated her responses to only four questions. But she must feel right at home; three answers were labeled “false,” and a fourth, “Pants on Fire.” New York Times columnist Frank Bruni described Sanders’s press briefings as something out of Alice in Wonderland. “For some 20 minutes every afternoon, down is up, paralysis is progress, enmity is harmony, stupid is smart, villain is victim, disgrace is honor, plutocracy is populism…”
Of course, at the top of this pyramid of falsehoods sits the 45 president. Since the day he took office, a team of Washington Post fact-checkers and researchers have been scrutinizing Trump’s every public utterance. As of Tuesday, November 13, Trump had made 1,628 false or misleading claims in the 298 days he has been in office. That works out to a little more than five fibs a day.
No subject is free from his distortions. The Renoir he owns is a fake, according to the Art Institute of Chicago; he hasn’t won all the golf tournaments he claims, according to Golf Magazine; and he never call or emailed all the soldiers who have died on his watch according to Gold Star Families.
As Trump campaign volunteer George Papadopoulos has already learned the hard way, one of the few things you are not allowed to do is to give false statements to federal agents including the FBI and the prosecutors at the Special Counsel’s office under 18 U.S.C. 1001. As more people in the Trump orbit become ensnared in Mueller’s investigation, they are going to have to halt the cavalcade of lies. After all, the sky — with perhaps the exception of the aurora borealis — is not green.
The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.