The First Amendment to the Constitution protects political speech, even when it is not true. WYNN POINTAUX/Pixabay

Don’t believe everything you read.

It’s perhaps unexpected advice coming from a respected newspaper, but it’s a sound policy when it comes to political advertising, which is protected by the First Amendment, even when it’s not true.

False accusations, half-truths and statements taken wildly out of context often mark — and mar — the political landscape during local and national campaigns. The closer we get to Election Day, the nastier and more outrageous the ads become, on television and radio, in newspapers and social media feeds.

One often hears a voter say, “Well, at least part of it must be true, or they wouldn’t be allowed to say it. We have truth-in-advertising laws for a reason.”

But that’s simply not the case. 

“While the Federal Trade Commission requires some truth in commercial advertising, there is no federal regulation for truth in political advertising,” Matt Vasilogambro wrote in a March 2019  article for Pew Charitable Trusts, “Political Candidates Don’t Always Tell the Truth (And You Can’t Make Them).”

The First Amendment, which protects free speech, extends to political advertising and the U.S. Supreme Court has repeatedly struck down individual states’ attempts to regulate campaign advertising and ensure it is truthful.

Scores of constitutional scholars have weighed in on the U.S. Supreme Court’s protection of political speech, even in the case of untrue campaign ads.

TIME Magazine writer Amy Sullivan reminded readers in a 2008 article, “Truth in Advertising? Not for political ads”, of “an oft-forgotten, unfortunate political fact: it’s perfectly legal for candidates to lie to voters in commercials or other advertising. Commercial companies are bound by restrictions that prevent them from making false claims about their products or those of their competitors. … Candidates are not held to the same commercial standard, and the reason is simple: their statements and advertisements are considered ‘political speech,’ which falls under the protection of the First Amendment.”

“On the Media,” a public radio podcast, provides this graphic to help social media users and news readers identify misleading or patently false campaign advertising or other news stories. ONTHEMEDIA.ORG/Contributed

What about fact-checking websites?

Journalists and other organizations have launched fact-checking websites to repeatedly refute and correct false claims made by candidates and political action committees that support those candidates. Such sites for national elections include Factcheck.org or Politifact.com.

Federal election laws also require the sponsor of a campaign ad to be identified on the advertisement, whether the ad came from the candidate’s own campaign or from a supporting political action committee. If an ad is criticizing a politician’s voting record, some states require a citation for that vote.

“Candidates lie, fact-checkers out them, and voters have all the information they need to make their choices,” Sullivan wrote during the 2008 presidential election. “But the free market of ideas doesn’t always work so well. As candidates know, a far greater percentage of voters hear the original lie in a campaign ad than ever read about the fact-checked version in a local paper or fact-checking website. And even if voters do hear the refutation of an ad’s claims, studies show that may not alter their perceptions created by the original ad.”

William P. Marshall, a law professor at University of North Carolina, also weighed in on falsehoods in campaign advertising when writing “False Campaign Speech and the First Amendment” for the University of Pennsylvania Law Review in 2004. 

“Restrictions on campaign speech raise difficult constitutional issues,” Marshall wrote. “Thus far, the Supreme Court’s approach to campaign speech regulation has been erratic at best. 

“The concerns on both sides of the campaign speech restriction debate are particularly powerful. On one side, unchecked excesses in campaign speech can threaten the legitimacy and credibility of the political system. On the other, regulating campaign speech is problematic because of the serious dangers and risks in allowing the government and the courts to interfere with the rough and tumble of political campaigns. Courts and commentators are therefore to be excused if they cannot find easily discernible solutions to this conflict.”

Marshall also writes about the possibility that false campaign ads will turn off voters entirely and lead to lower voter turnout.

“An electorate that becomes so turned off and disengaged from the political process is both unable to fulfill its democratic function and rife for manipulation,” Marshall wrote. “As Justice Brandeis once famously observed, ‘the greatest menace to freedom is an inert people.’”

So what’s a voter to do?

Educate yourself. Consult fact-checking websites such as politifact.org and factcheck.org. Vote your conscience. Look for telltale signs of falsehoods, including altered photos and headlines in ALL CAPS. Verify an unlikely claim by searching for a reputable news source that has reported the same thing.

Finally, consider the words of U.S. Supreme Court Justice Robert H. Jackson, who wrote in 1945, “The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech and religion. … Every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”

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