A Right to Lie? Presidents, Other Liars, and the First Amendment

Do the nation’s highest officers, including the president, have a right to lie, no matter what damage their falsehoods cause? Does freedom of expression protect falsehoods? If so, are lies by candidates and public officials protected? And is there a constitutional path, without violating the First Amendment, to stop a president whose persistent lies endanger our lives and our democracy?

Perhaps counterintuitively, the general answer to each question is “yes.” Drawing from dramatic court cases about defamers, proponents of birtherism, braggarts, and office holders, Ross reveals the almost insurmountable constitutional and practical obstacles to legal efforts to rein in public deception. She explains the rules that govern the treatment of lies, while also demonstrating the incalculable damage that presidential mendacity may foster.

Falsehoods have been at issue in every presidential impeachment proceeding from Nixon to Trump. But, until now, no one has analyzed why public lies might be impeachable offenses, and whether the First Amendment would provide a defense. Noting that speech by public employees does not receive the same First Amendment protection as the speech of ordinary citizens, Ross proposes the constitutionally viable solution of treating presidents as public employees who work for the people. Charged with oversight of the Executive, Congress may—and should—put future presidents on notice that material lies to the public on substantial matters will be deemed a “high crime and misdemeanor” subject to censure and even impeachment.

Please join us for a lively discussion of an issue that could not be of greater importance.

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