The big news in the state's recent primary for Arkansas Supreme Court wasn't who did well enough to go on to the next round, but all the dark money that was spent tearing down a couple of candidates. Including the incumbent, Supreme Court Justice Courtney Goodson. All those ads on radio and TV implying that she was the only member of the top court to ask for a raise, her taking of certain gifts, etc., were produced in the familiar campaign style. That is, ominous music played over the oh-so-concerned announcer imploring that Gentle Voter "call" the justice. And why not call her at suppertime, too, the better to cause maximum bother?
Courtney Goodson didn't take it without a fight. But instead of refuting the ads' claims, she went to court.
Her lawyers were able, as you'd better be if you're representing a Supreme Court justice. But one of their arguments caught our eye. Like a fishing lure. According to the papers, her honor, or maybe just her people, said the ads from this shadowy Judicial Crisis Network were lies "and not protected by free speech."
Interesting.
That other Supreme Court, the one working out of our nation's capital, has ruled several times in the last few years on lies, damned lies, and protected speech. They would not agree with Justice Goodson on this.
First, there's the awful case of the Phelps people--remember them?--who protested in the most uncivil way: by waving around anti-gay posters at military funerals. The court ruled in Snyder v. Phelps that civil liability on unpopular speech is unconstitutional. In other words, unpopular speech is protected as free speech. Then you've got Brown v. Entertainment Merchants Association (about those violent video games), and Reed vs. Town of Gilbert (about political signage) and even the old stand-by Hustler Magazine v. Falwell, about which a movie of some note was made. The courts have ruled on political speech before, and most times protect it.
But what about lies?
That question brings us to U.S. v. Alvarez, an interesting one that would keep law students awake in class even at 8 a.m.
Xavier Alvarez was a liar. The opinion in the case, written by Justice Anthony Kennedy, said so. Few disputed it. Mr. Alvarez was a member of a water district board in California, and he violated the Stolen Valor Law by claiming, among other things, that he was a former Marine and was awarded the Congressional Medal of Honor in 1987. Why anybody would claim to earn the CMH in 1987--when the country wasn't at war--is anybody's guess. But then this man also claimed to have been a member of the Detroit Red Wings.
Those lies were found out, eventually. The papers ridiculed him. Then prosecutors sicced the legal dogs on him. After all, he did violate the Stolen Valor Law.
So in 2012, the nation's top court struck down the Stolen Valor Law.
In his written opinion, Justice Kennedy rejected claims that lies are generally not protected speech under the First Amendment. He said, sure, defamation and fraud could be punished, but the court "has never endorsed the categorical rule the government advances: that false statements receive no First Amendment protection." And he "reject[ed] the notion that false speech should be in a general category that is presumptively unprotected." (For more detailed reading, see Erwin Chemerinsky's commentary on the American Bar Association's website www.abajournal.com/news/article/the_first_amendment_and_the_right_to_lie)
Also, according to The Truman Project: "To uphold [the Stolen Valor Law] would have set a dangerous precedent. Some had argued that because he used his lies to be elected to public office, they amounted to criminal fraud. But criminalizing lies on the campaign trail, tempting as it is, would give the government (and thereby, the incumbent party) an enormous and unprecedented amount of power."
Or as the Atlantic put it after the Alvarez ruling: "There is no clear 'right to lie,' but a lot of precedent--and simple common sense--suggest it's a bad idea to let government officials determine truth and threaten designated 'liars' with jail. In fact, the existence of the law affects politics, even if no one is ever prosecuted; candidates can complain, get a 'probable cause' ruling, and then proclaim that an opponent or critic has 'lied.'"
And maybe that's the point. Yelling "fire" in a movie theater when there is no fire is against the law. But are lies told during political campaigns? If so, who gets to decide what's the truth? The courts? Congress? Some government agency?
It'd be better if the U.S. Supreme Court kept along its path in this matter and allowed lies First Amendment protections. It would be better for We the People. Because eventually Americans will figure out who's a liar. Maybe Judge Chris Piazza, a good man and normally a good judge, doesn't understand the Alvarez decision. Hopefully he will in future rulings.
The best thing to do with a misleading campaign like the one the Judicial Crisis Network launched is to combat it with the truth. Which, it seems, most voters in Arkansas found at last. Courtney Goodson was targeted by all that dark money but made the runoff. Other candidates did, too. We hope in the runoff Justice Goodson will explain if she understands the U.S. Supreme Court's several decisions on free speech. And if so, if she agrees with them. And if she doesn't, if she will rule on future cases that lies are not protected as free speech by the First Amendment.
Free speech is important nowadays, as in all days. But lately it seems to be under attack and in the most unfortunate places: on college campuses. We don't need it being under attack by Arkansas Supreme Court justices.
The way to fight lies is not with court injunctions and restraining orders, but with more information. That is, with competing claims and assertions, the truth will emerge. As We the People see it, not through the eyes of some government officials.
Editorial on 05/27/2018