Last Friday evening, I was watching something on TV that originated from a Pennsylvania TV station. One of the commercials which appeared during a break was an attack ad against Pennsylvania U.S. Senate candidate (and current Pennsylvania Lieutenant Governor) John Fetterman. Mr. Fetterman is a Democrat. The ad stated that Mr. Fetterman “opposes the felony murder law.” I’m sure most people would interpret that statement as meaning that Mr. Fetterman opposes making murder a felony. I’m also certain that misinterpretation was the intent of the ad’s creators.
An ad saying that John Fetterman opposes the “felony murder law” is misleading without explaining what the “felony murder law” is. In fact, the legal concept of “felony murder” has nothing to do with whether murder is a felony. Murder is a felony in every state in the Union and, as far as I know, no one opposes classifying murder as the most serious crime that exists.
The law generally defines murder as intentionally causing the death of another person. The “felony murder” doctrine, codified in state criminal codes, means that, in certain circumstances, a person who did not, themself, cause a death and who did not have the intention to cause a death may be convicted of murder based upon the conduct of others. “Felony murder” is very old law. Whether it is desirable law is not the point. The point is that most people are not aware of what “felony murder” means as a legal principle.
I am regularly surprised to hear people, even in 2022, say about political ads that “they aren’t allowed to put that on TV unless it is true.” Nothing could be further from the truth. PACS, supposedly unaffiliated with a candidate’s campaign, can and do run ads attacking their candidate’s opponent that are blatant lies. They can do that without having to disclose to anyone who is telling the lies.
In 2012, the United States Supreme Court held that the First Amendment protects intentional lying.
In United States v. Alvarez, 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed. 2d 574 (2012), the Supreme Court held unconstitutional the Federal “Stolen Valor Act” which made it a crime to say you had received a military decoration when, in fact, you had not. The case involved a new member of a California water board who claimed as credentials that he had been repeatedly wounded as a U.S. Marine and that he had received the Congressional Medal of Honor. None of that was true and Mr. Alvarez knew it wasn’t true. In fact, the Supreme Court said of Alvarez that “lying was his habit.” The Supreme Court also said that Alvarez’s right to falsely say that he had won the Congressional Medal of Honor “is protected by the Constitution’s guarantee of freedom of speech and expression.”
Ohio used to have a statute that prohibited people from making false statements about political candidates “knowing the same to be false or with reckless disregard whether it is false or not.” This statute was held unconstitutional by the U.S. Sixth Circuit Court of Appeals in Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016).
There is a First Amendment right to lie and the courts have said that right receives the greatest protection when someone is lying about politics.
Whether or not there should be a First Amendment right to lie, that right exists. Because it exists, it handcuffs media’s ability to reject false and misleading political advertising. Moreover, the media has no incentive to reject ads based on falsity. Political ads are crucial sources of revenue for local TV and radio stations without which some broadcasters would be out of business. Their job is to get and run as many political ads as they can, true or not.
Technically, the right to lie exists for both Republicans and Democrats. However, because extremely wealthy conservatives like the Kochs have PACs that spend hundreds of millions of dollars each election, lies about Democratic candidates are told in ads much more frequently and get much wider exposure. Conservatives are also very adept, and practiced, at the art of telling plausible lies.
One lie I’ve seen in ads repeatedly is the statement that Nan Whaley cut funding for the Dayton Police. While Nan was Mayor, funding for and hiring by the Dayton police department both increased. Crime went down.
It is true that, while Nan was on Dayton council, declining city revenues forced the council to cut funding for all city departments, including the police. It is true that crime in Dayton has increased since Nan’s term as Mayor ended, just as crime has increased nationwide.
That is another problem with lies in political ads: they are short, simple statements while the truth requires some explanation. People do not listen explanations. Additionally, a legacy of trump is the concept that truth and falsity are archaic and that what really happened is determined solely by whose “alternative facts” more people believe. Republicans and their wealthy anonymous allies are much better at using these realities than Democrats, and they have more money to get their false message out.
We know political ads are often false and that Republicans and their allies are the more effective liars. What is the takeaway? The takeaway is that we all must fight the lies. We all have credibility with people in our circles of family, friends, and acquaintances. When someone we know says, “well, I heard on TV that Tim Ryan wants to . . .,” we have to say, “no, that isn’t true.”
We must use our personal credibility to counteract the lies. Silence from those who know better confirms the lies.
The Election Is Fast Approaching
Voter registration for the November election ends one week from today, on October 11, 2022. If you’ve moved or changed your name (e.g., got married), your registration may not be accurate. If anything has changed in your life recently, check your voter registration status. You can check your voter registration status at voterlookup.ohiosos.gov/voterlookup.aspx. Make sure that your friends and family who are likely to vote Democratic also have up-to-date voter registration. Early voting starts a week from tomorrow, October 12, 2022.