Should it Be Legal to Lie?

Does free speech extend to slander and libel?

The 1st Amendment to the US Constitution says that Congress shall make no law abridging our freedom of speech. For many conservatives, the debate begins and ends there. However, mankind has long been vexed with the question of what to do about inveterate liars, especially those who attempt to deliberately damage or destroy the reputations of good men and women.

In Exodus 20:16, the 9th Commandment says “You shall not bear false witness against your neighbor.” Proverbs 19:5 adds that “A false witness will not go unpunished, and he who breathes out lies will not escape.”

Ancient Rome imposed various penalties for defamation, from simple fines to criminal punishment depending on the era and the severity. Spoken defamation, or slander, was treated differently than written defamation, or libel. In Anglo-Saxon England, a slanderer could be punished by having his tongue cut out.

Our country has had laws on the books regarding defamation since before the American Revolution. For the first two centuries after independence, the Supreme Court routinely held that civil and criminal prosecution of slander or libel did not violate the 1st Amendment. In 1964, however, the Supreme Court ruled in New York Times v. Sullivan that proving slander or libel with regards to a public person such as a politician or candidate for office required a much higher bar than before. Going forward, plaintiffs were required to prove that defendants acted with “actual malice,” meaning they knew what they were saying or writing was false or they acted with reckless disregard for the truth.

Idaho has had libel laws on the books since before statehood. In 1972, as part of a comprehensive rewrite of our state’s criminal code, libel was defined as:

…a malicious defamation, expressed either by writing, printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural or alleged defects, of one who is alive, and thereby to expose him to public hatred, contempt or ridicule.

However, in the post-Sullivan world, criminal libel has rarely been prosecuted.

Today we take it as a truism that people in politics lie. The question is where should we draw the line between opinion and actual malice. Consider two incidents during the 2024 Republican legislative primary:

In April, a political action committee (PAC) called Make Liberty Win, associated with Young Americans for Liberty, sent mailers to voters in District 30 claiming that Sen. Julie VanOrden and Reps. David Cannon and Julianne Young voted against House Bill 314, and for allowing “porn in school libraries”. The mailer also claimed that the three lawmakers voted in favor of the public television budget, allowing it to “spew leftist propaganda” toward our children.

The mailer was false, in multiple ways. All three lawmakers voted for H314, and Young also voted against S1399, the public television appropriations bill. While VanOrden and Cannon survived their races, Julianne Young lost by two votes. Did the people behind Make Liberty Win bother to double check their facts before they printed and mailed this flier? Did they care whether it was true or not?

The following month, a PAC called Idaho Conservatives for Liberty sent text messages to voters in District 10 claiming that Sen. Tammy Nichols had once been arrested for felony check fraud. As with the LD30 race, neither Idaho Conservatives for Liberty nor its chairman Amy Larsen seem to have done the slightest bit of research. If they had, they would have discovered that this was clearly mistaken identity. Coming less than a week before the primary election, however, it seems clear that truth was not as important as scaring voters away from supporting one of Idaho’s most conservative lawmakers.

While both cases seem like textbook cases of libel, our current laws disincentivize prosecution. Julianne Young might well have prevailed in court, but the costs would have strongly outweighed any restitution, and of course no judge would have considered undoing the election. Sen. Nichols won her race anyway, so why bother spending time, energy, and money seeking satisfaction?

These cases have prompted lawmakers to draft a rewrite of our libel laws, which have remained unchanged since 1972. House Bill 306 follows in the footsteps of Sullivan by raising the burden of proof to actual malice while also significantly increasing fines and penalties. Under current law, criminal libel can be punished with fines of up to $5,000 and up to six months in jail. H306 would raise those to $100,000 and up to five years in prison.

That’s a hefty jump, but by raising the bar to actual malice it seems unlikely that many people would be convicted under this bill. Perhaps it is intended more as a warning to those who play fast and loose with the truth in pursuit of political goals.

The bill would also give the attorney general original jurisdiction to prosecute criminal libel against elected officials or state employees. It is silent on libel committed by such people; perhaps that would be the jurisdiction of county prosecuting attorneys.

H306 was not the only bill introduced in response to dishonest political advertising. House Bill 307 would create a process by which a candidate that is targeted by what he or she believes is a lie could submit the material in question to the secretary of state, who would then be required to determine if it is “verifiably false”. I am not entirely sure what that would mean. If the material is determined to be verifiably false, the secretary of state requests a response from whomever produced the material, and would publish both the finding and the response on his website.

Some conservative activists have called this an attempt at establishing an Orwellian Ministry of Truth. While I’m not sure it goes that far, I do have concerns with putting government officials in the role of fact checker. We’ve seen how self-proclaimed fact checkers in the media have been unable to resist putting their thumbs on the scales, framing their supposedly objective and nonpartisan fact checks to benefit one side or the other.

I remember reading a consumer watchdog publication back in the day, and feeling so dismayed when they brought in a representative of the Obama Administration to explain the “truth” about Obamacare. That’s not independent journalism, that’s kowtowing to power.

Remember when the Biden Administration announced a Disinformation Governance Board? Officials claimed it was meant to combat disinformation about America abroad, but many worried that it would quickly extend to shutting down contrary opinions within our country as well. Indeed, the Biden Administration fought in court to maintain the right to tell social media platforms what should not be allowed, and the Twitter Files showed that government officials embedded within the company used their power to censor our free speech.

While I don’t believe H307 goes nearly as far as the examples above, I can’t feel comfortable about putting a government office in the role of referee in political campaigns. The Sunshine website is simple — this person donated to that candidate on this date. Adjudicating the truth or falsehood of a claim is entirely different.

We need a more robust media ecosystem that can call out false claims like those levied against Julianne Young and Tammy Nichols last year. The Gem State Chronicle highlighted those deceitful ads, as did other publications, but our reach is still fairly small compared to the legacy newspapers and television news programs.

There also needs to be a better way to hold malicious liars accountable for their actions. Right now, the bar for a successful libel suit is extremely high, and the costs are often not worth it. Most Idaho legislators lack the resources of someone like President Donald Trump, who successfully sued ABC for defamation last year.

Political actors seem to think that outright lying is simply part of the game now, fearing no repercussions. I don’t know if H306 is the right way to fix this, but I’m glad that legislators are discussing the issue.

Both H306 and H307 have yet to come before committees for full hearings, so I’m sure we will learn more information if and when they do. As conservatives, we believe in the freedom of speech, but we also believe in the truth. How far should the law go toward protecting the truth from unscrupulous liars?