Oklahoma Law Review
Helen Norton, (At Least) Thirteen Ways of Looking at Election Lies, 71 Okla. L. Rev. 117 (2018), available at https://scholar.law.colorado.edu/articles/1182.
Lies take many forms. Because lies vary so greatly in their motivations and consequences (among many other qualities), philosophers have long sought to catalog them to help make sense of their diversity and complexity. Legal scholars too have classified lies in various ways to explain why we punish some and protect others. This symposium essay offers yet another taxonomy of lies, focusing specifically on election lies — that is, lies told during or about elections. We can divide and describe election lies in a wide variety of ways: by speaker, by motive, by subject matter, by audience, by means of delivery, and more. These different ways of thinking about election lies are by no means mutually exclusive; indeed, they often overlap. Election lies understandably disturb us when they succeed in deceiving their targets, when they influence election outcomes, and when they degrade our public discourse. At the same time, however, we also fear government overreach and the dangers of partisan enforcement, we worry that regulation will inadvertently chill truthful and thus valuable speech, and we sometimes wonder whether the causal link between election lies and significant harm is sufficiently direct to justify the lies’ constraint. By illuminating the diversity and complexity of election-related lies, I emphasize the value in thinking more carefully about what troubles us about them and why. In so doing, I hope to help sharpen our thinking about when and why election lies might be harmful or instead valuable; when and why their regulation might threaten other harms; and when and why they might be amenable to constraint through law, norms, markets, and architecture — or not at all. As just one illustration, why might the identity of the election liar matter? First, the nature of the speaker may shed some light on the First Amendment value, if any, of the lie. The First Amendment sometimes protects lies because of their value in furthering the speaker’s autonomy — as is the case, for example, of lies told to preserve the speaker’s privacy or that enable the speaker to choose how to portray herself to others. But some liars may have less of a claim to constitutionally protected autonomy interests precisely because of their foreign, robotic, corporate, or governmental identity. Second, the speaker’s identity may exacerbate the threats that its election lies pose to key constitutional values: think, for example, of the threats to democratic self-governance posed by foreign or governmental lies. And with respect to possible solutions, the election lies of some speakers (such as robots) may be more amenable than others to regulation by code, some (like corporations) to markets, some (like candidates) to norms, and some (like government) to law. Maybe. In this essay, I offer a long — yet no doubt incomplete — litany of campaign-related falsehoods to show that election lies pose many problems, plural. Some may threaten greater or more direct harm than others, and some may be more responsive to different forms of constraint than others. The variety and complexity of the problem of election lies — their dangers and (perhaps occasionally) their value — require nuanced and diverse responses that recognize the harms of various lies as well as the challenges posed by efforts to constrain them.
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