Vol. 33 No. 03 (March 2023) pp. 28-31A RIGHT TO LIE? PRESIDENTS, OTHER LIARS, AND THE FIRST AMENDMENT, by Catherine J. Ross. Philadelphia: University of Pennsylvania Press, 2021. pp.173. Hardcover: $24.95. ISBN: 9-780-8122-5325-2. eBook $24.95. ISBN: 9-780-8122-9973-1.
Reviewed by Jake S. Truscott. Department of Political Science. The University of Georgia. Email: jake.truscott@uga.edu.
The Constitution provides a framework to protect the republic from would-be despots occupying the White House. Articles II explicitly grants Congress the power to impeach presidents as a result of them engaging in “Treason, Bribery, or other high Crimes and Misdemeanors” (p. 127). Yet, this raises an important set of questions – Are presidential lies protected speech? If not, do willful lies, regardless of their intent or ramifications, fall under the distinction of an impeachable high crime or misdemeanor? These questions are at the heart of Catherine J. Ross’s book A RIGHT TO LIE? PRESIDENTS, OTHER LIARS, AND THE FIRST AMENDMENT.
The controversial presidency of Donald J. Trump, and more directly the man himself, serves as the primary motivation for this work – and the author makes little attempts to hide it. While they note that “this book is not just about Trump, and it is not just about presidents” (p. 1), most sections return to a discussion of the former president. Then again, this frame is not without merit. The Trump presidency serves as perhaps the most indicative example of how lies from those in positions of power can erode the public trust and potentially put lives at risk. From everyday fabrications and slanders that eventually became too excessive for fact-checkers to maintain an up-to-date tally (p. 68), to sufficiently more egregious lies told to dissuade the public from appreciating the seriousness of the COVID-19 pandemic, Ross draws from Trump’s habitual lying to demand that we need to hold executives accountable for willful deceits.
Their approach is a structured analysis of the Constitution, the relevant case law, federal statutes, and, of course, the motivations of the framers in creating institutional protections against executives engaging in criminal behaviors, or more broadly, threatening the republic. All of this serves to support their contention that "truth is essential to democracy, while lies subvert it like ivy vines that cause the mortar to crumble" (p. 150). According to Ross, no simple solution exists to hold presidents accountable for obvious deceits, though there are institutional structures and legal precedents that could be tailored to do so. Chapter 1 sets the narrative by introducing the presidency of Donald Trump to hook readers into the gravity of executives willfully circumventing the truth. They subsequently use this as a framework to discuss and define lies in the context of the American legal tradition. Chapter 2 dives directly into the caselaw with UNITED STATES V. ALVAREZ (2012) to illustrate the complexity of the first amendment's deference to intentional factual falsehoods, or "bald-faced" lies. The case, which questioned the constitutionality of the Stolen Valor Act, ultimately provided legal protections for lies and liars. Although it is not mentioned directly, the author frames the corresponding facts and the decision in a way that harkens to SNYDER V. PHELPS (2011), a decision that protected the first amendment rights of the Westboro Baptist Church to protest the funerals of fallen servicemen, regardless of how offensive or outrageous the display was. Ross notes that “the annals of First Amendment jurisprudence are replete with unsympathetic, disagreeable, and even vicious litigants whose free speech claims prevailed” (p. 20). This is the context that frames the splintered ALVAREZ decision. While Xavier Alvarez blatantly misrepresented his status as a military veteran, even claiming to have been awarded the Congressional Medal of Honor, his lies neither garnered personal benefits, nor ostensibly harmed anyone else. The Court’s plurality opinion would effectively strike down the Stolen Valor Act as a violation of the first amendment, insofar as the law granted Congress the power to regulate lies about military service and accolades beyond those in “‘contexts where such lies are most likely to cause harm’” (p. 37). While Congress would eventually amend the Stolen Valor Act to meet the Court’s narrowly tailored standards, Ross masterfully employs ALVAREZ as a means to relay that the legal standards protecting factual falsehoods are difficult to parse, and are prone to competing interpretations of separating inconsequential falsehoods from demonstrative and malevolent lies.
Chapter 3 moves to the Birtherism conspiracy, and again, focuses on Trump and his allies as perhaps the most pivotal voices in the room. The controversy is used as a primer to introduce readers to related concerns arising from defamation suits and why it is often difficult for plaintiffs to prevail, especially when the plaintiffs themselves are being lampooned for spreading false conspiracies. Chapter 4 moves into the political arena and focuses on the difficulty of regulating lies in political campaigns, including what the author artfully describes as “the modern equivalent of an Old West gunfight” (p. 15) between justices of the Wisconsin Supreme Court following a controversial sequence of events emanating from false and misleading statements during a statewide judicial election.
Chapter 5 returns to Trump and explicitly focuses on the former president’s persistent rhetoric relating to the COVID-19 pandemic. Here, we find an interesting dichotomy that serves as the basis of the author’s distinction between the lies we might expect presidents to employ as a means to protect national security and prevent widespread panic from those aimed directly at deception. The analysis hinges on the Court’s reasoning in ALVAREZ that “something more than a lie is required” (p. 91) to move beyond the protections of the First Amendment. Trump’s something more, as Ross argues, falls explicitly with the reality that “he knew he was lying,” and the “wake of devastation [is] attributable in large part to [his] falsehoods” (p. 90-91). While we might wish for presidents to be infallible, they are not immune from ignorance. Yet, the problem wasn’t that Trump was relaying false information. Anyone can provide a position without full exposure to the facts. Instead, it was that Trump knew he was relaying factually false information, and the repetition of those lies motivated a substantial population to dismiss a very real threat to public health.
With a concrete understanding that lies can instigate real consequences, Chapter 6 moves towards the means to hold presidents accountable for their deceptions by arguing that they should effectively be treated as public employees. First amendment protections in the workplace operate under different regimes concerning private versus public employees (p. 112). Ross argues that amidst the complex history of case law, the government can restrict speech and retaliate against government employees if their expressions were made “pursuant to professional duties” (p. 114). It is from this framework that Ross begins to question whether the president’s speech meets the same standard. Through a systematic combination of hypotheticals and real-world examples, they contend that “there is almost nothing a president could address during his or her term in office that can be disconnected from the Executive Office of the President. By its very nature, the presidency is a year-round, 24/7 job” (p. 119). In short, practically anything Trump said, including in his posts to official POTUS social media accounts that the DOJ “told federal courts were ‘official statements’ of the president and government policy” (p. 119), is considered the position of the President of the United States, not Donald Trump as a private citizen. From this, Ross argues that there is "no apparent analytical justification [that] mandates exempting presidents from the legal constraints that apply to other public servants who perform executive functions" (p. 119).
Finally, Chapter 7 serves two concurrent purposes. First, for those who still might not be convinced that presidents can be held accountable for relaying unjustifiable falsehoods, Ross draws on the intent of the framers and the recent history of impeachment proceedings. Namely, they incorporate the scholarships of Charles Black and Michael Gerhart to posit that “the original rationale for impeachment was a rather quaint yet inspiring notion of holding officials to high standards of integrity and probity in their public life,” and that “abuses against the state are impeachable because they subvert the ‘public trust’” (p. 128). In essence, the contextual substance of “high Crimes and Misdemeanors” was not intended to relay objective criminal behaviors like the passage’s preceding treason and bribery. Rather, impeachment was meant to serve as a mechanism to protect against instances where the offending president loses public trust through deceitful or criminal acts. The impeachment of Bill Clinton, and to a lesser extent, the threat of impeachment levied against Richard Nixon, were not just premised on the fact that they had engaged in behaviors unbecoming of the office, but also that they had purposefully lied about it.
The second purpose of Chapter 7 is to provide a multi-stage framework for Congress to take the reins of holding presidents accountable. Assuming that the preceding discussions hold legal weight,which they surely appear to do so, Ross prescribes that Congress should create laws or pass resolutions to establish a framework outlining what constitutes egregious and unlawful lies. At the very least, it would serve as a signal that legislators recognize the weight of the president’s speech and its capacity to be abused. In violation of this hypothetical law, Congress must be willing to act – either by Congressional censure or, if the lie is especially egregious and unbecoming, move to impeachment using the rationale outlined earlier in the chapter.
All in all, I find the author’s argument to be calculated and well-reasoned. There is no question that Ross has done their due diligence and masterfully provided a framework to address a concern that has been exacerbated by recent presidencies. My only critique, which is by no means the fault of the author, is that these common sense remedies are difficult to conceive in the contemporary political climate. To assume a bipartisan movement toward constraining presidential lies, especially considering that the underlying motivations would almost definitely center on Donald Trump, is likely too much to expect from the rampant tribalism in Congress. Even assuming that legislators would be willing to pass such a law or resolution threatening censure, it must be expected that the president is fearful of these threats. I find it hard to believe that any president in the modern climate would be like Martin Sheen’s Jed Bartlett, an executive who both recognizes and appreciates the gravity of a Congressional censure in response to not being forthcoming about something that could impact their role as chief executive. Impeachment proceedings, as the presidency of Donald Trump has taught us, are plagued by similar concerns. Even as Republican Senate Leader Mitch McConnell agreed that Trump provoked the mob that stormed the capitol building on January 6, 2021, 43 Republican Senators voted to acquit – including McConnell himself (p. 143). To Ross’s credit, they routinely touch on these concerns. If anything, their framework and rationale serve as a call for Congressmen to restore the virtues of common sense.
It seems unlikely to expect legislators to act against the leader of their party in the White House, no matter the ramifications of their behaviors, which is a shame. The author’s framework is a masterful one, and I wish that scholars and legislators would take their positions to mind. As Ross infers, the framers recognized that the health of the republic cannot be stymied by rogue executives engaging in behaviors unbecoming of the office. Unfortunately, these behaviors are now a part of the discourse because Congress and the courts have failed to act. This book provides an excellent set of remedies to get them started.
REFERENCES:
SNYDER V. PHELPS, 562 U.S. 443 (2011).
UNITED STATES V. ALVAREZ, 567 U.S. 709 (2012).
© Copyright 2023 by author, Jake S. Truscott.
