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January 12, 2009

should lying to the public be a crime?

This is an argument from my side of the aisle, so to speak, that really upsets me. (Frank Rich, Dec. 13):

It is not against the law to lie to the public or to start a war on false pretenses. Because those acts are not illegal, Libby was not charged with them. He was not investigated for lying to the public; no evidence to that effect was ever put before a jury. No one examined him to see whether his assertions were (a) false and (b) knowingly so. He could not defend himself in court against an accusation of deliberately misleading the American people, because no such accusation was made. If, as Frank Rich apparently wishes, Libby was convicted because he lied to the public about a war, that was a flagrant violation of the rule of law, one of whose fundamental principles is nullum crimen et nulla poena sine lege ("no crime and no punishment without a law").

Having gotten that off my chest, I'd like to raise a more theoretical question: Would it make any sense to create a criminal law against lying to the public? The elements of this crime would have to include intent and serious consequences. In other words, it would be a defense to say that you didn't know your information was wrong; and it would be a defense to say that your lie was inconsequential. The law could govern any public utterance, or only certain contexts, such as formal speeches given by high officials. We already have perjury laws that apply to sworn testimony; these would be broadened. Another precedent is the Oregon law that says that candidates' personal statements in state voter guides must be true. Former Congressman Wes Cooley was convicted of falsely claiming that he had served in the Special Forces.

In favor of this reform: Lying is wrong. It can cause serious harm to other people. Lying by public officials can undermine the public's sovereignty by giving citizens false information to use in making judgments. Although it can be challenging to prove intent, that is certainly possible in some circumstances, as we know from perjury trials.

Against: There could be a chilling effect on free speech, because people who participate in heated debates do occasionally stray from the truth. It would be bad to suppress such debates altogether. Also, criminalizing lying would shift power from the legislative and executive branches to the judiciary, which might therefore become even more "political." The reform might reduce the public's sense that we are responsible for scrutinizing our government's statements and actions and punishing bad behavior at the ballot box.

Finally, it would distort the political debate if there were frequent, high-stakes battles over whether individuals had knowingly lied about specific facts. Often a specific prevarication is not nearly as important as someone's bad values and priorities. For instance, the Bush Administration very publicly and openly denigrated the importance of foreigners' human rights and chose an aggressive and bellicose strategy. These were not lies; they were public choices that unfortunately happened to be quite popular.

January 12, 2009 10:42 AM | category: philosophy | Comments


This debate always takes me back to Arendt's Truth and Politics: if politics is concerned with the possible, then lying is just a tool to bring about a future which is different, and better, than the present. Of course, this was exactly the self-justification behind the administration's early opposition to the 'reality-based community': their lies were to be self-fulfilling deceptions, and the journalistic demand for truthfulness was only holding them back from truly remaking the world.

Of course, it also reminds me of the 1780 Berlin Academy question: ’Is it useful for a nation to be deceived, whether by leading it into new errors or maintaining old ones?’ (“S'il peut etre utile de tromper le peuple.”) I think that we have at least a moral right to the truth from our leaders, and once that is granted we're just discussing which institutions can best protect that right.

January 12, 2009 5:14 PM | Comments (3) | posted by anotherpanacea

"Another Panacea"'s comment reminds me of two more arguments against an "anti-lying" statute:

1. Lying might occasionally be the best policy. Lies intended to deceive foreign enemies about tactics and the disposition of forces could be excepted in the law. But then there are lies designed to get the public to do the right thing--a much more troubling category. If FDR lied to get the United States into WWII, he might have been right to do so.

And what about fairly benign lies that have beneficial consequences? For instance, a politician might believe that the stock market is going to languish in 2009--yet he might say that he expects it to rise. This is a lie; should it possibly be criminal?

2. Political lies tend to be repeated widely. In fact, the really problematic ones are the ones that are repeated like mantras. Does that mean that everyone who repeats a lie, knowing that it is false, is guilty? Or must we determine who caused the falsehood by identifying the original source?

January 12, 2009 6:02 PM | Comments (3) | posted by Peter Levine

The Athenians under the democracy had a specific crime of 'deceiving the people', and Xanthippus famously prosecuted Miltiades the Younger on that charge following a diplomatic failure.

Obviously any modern equivalent would need provisions to distinguish wilful deceit from spin or error. I suspect this could be done. There are certainly (informal) moral standards in the British Parliament, where deliberately lying to the House is a resigning matter, but misinforming it because of bad briefing merely merits an apology.

John Profumo, defence minister at the heart of the Christine Keeler standard, had to resign after lying to the House, prompting the famous doggerel:

"What have you done, said Christine?
You've destroyed the whole party machine
To lie in the nude may be terribly rude
But to lie in the House is obscene!"

January 13, 2009 8:44 AM | Comments (3) | posted by Anthony

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